McCleskey v. Zant – Federal Habeas Corpus Vol. 1
Working File
December 8, 1981 - September 20, 1983
316 pages
Cite this item
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Case Files, McCleskey Legal Records. McCleskey v. Zant – Federal Habeas Corpus Vol. 1, 1981. a5112fa5-5aa7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cfc64e0c-b749-4d67-8e11-3e44902e2935/mccleskey-v-zant-federal-habeas-corpus-vol-1. Accessed May 11, 2025.
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APPENDIX B
FIGURE 1 (REVISED) .
KEY Death sentencing rates and rvace of the victim
sentenclag dlsparicles coutrolling tor (a) tha 21
: thee l Disparit number ot people killed by defendant, and (b) ; P y
whether there was a serious contemporaneous .27(97/360) 19 White Victim
Ff sei all |.000167247) | (1137607) fake
Declulons
Black Victim
Rate
Two or
None One More
Number of . 10 : 291 13
People Killed 1610/64) 13 .26(68/262)| .17 .5€(19/34) 54
by Defendant
: .06(2/31) (12/95) .05(11/209)((79/471) : 30347) (22/41)
No Yes No Yes ; No Yes
.09 13 03 46 +32 . 88
(3/34) (9/61) (11/324) : (68/147) (8/25) (14/16)
LLL REE | 14 .03 33 | -.01 tid...
Serious .09(2/22) .19(8/4 2) .05(7/1 48) .54(61/114) .32(6/19) B87(13/15)
— bt wus anos .08(1/12) .05(1/19) .02(4/176) .21(7/33) .33(2/6) 1.0(1/1)
clue
See Fleure Sce Flgpure Sec I'fpure See Figure See ligure See Flgure
2 (REV.) 3 (REV.) 4 (REV.) 5 (REV.) 6 (REV.) 7 (REV.)
Appendlx C Appendix C| Appendix C Appendix C, Appendix C Appendix C
for for for for tor for
Extension Extenslon Extension Extension Extension Extension
(
R
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V
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D
)
FIGURE 2 (REVISED)
01 oN
Defendant was not the triggerman and no serious contemporaneous .09(2/22) 09
offense was involved. Death sentencing rates and race of the > io
victim death sentencing disparities: Procedural Reform Study (1973-78) -08(1/12) (3/34) N om
: [-
0
0 -.06 is
Serious .0 | .0(0/8) No : Yes .14(2/14) | +16
Aggravating 0/15) | 0000/7) .20(1/5) [(3/19)
Circumstances
No Yes No Yes
0 : 0 -
Prior .0 .0(0/7) .0 | .0(0/1) .14(2/14) | .16 2
Record 012) | .o0/) ; (0/3)] .0(0/2) .20(1/5) |(3/19)
Yes No Yes No i > Yes. _No Yes NG een
0 - 0 - -.22 | .20
Mitigating .0 .0(0/7) .0 - .0 .0(0/1) .0 - .11(1/9) 17 -20(1/5) 14 - -
w Circumstances onnl .ow/e) 0/1) | .o0c0/1) (0/2) | .0(0/1) (0/1)] .o0(o/1) |. .33(1/3) [(2/12) .0(0/2) |Q/D)
. No Yes . 3 No Yes TALL Yes io No Yes a. Sh 0 o | Yes .20 o Yes
(0/4) 0/7) (0/1) “nee (0/1) (1/3) am (0/2) (1/5)
0 0 = 0 - -.50 217 0 .25
Minor .0(0/2) .0(0/5) - - .0(0/1) - - - .0(0/3) .17(1/6) .0(0/1) -25(1/4) - - - - Aggravating
Cifcumstances |. -0(0/2) .0(0/2) .0(0/1) .0(0/1) .0(0/1) .50(1/2) .0(0/1) -0(0/1) -0(0/1)
3 4 1 2 ’ 8 . 6 11% 12 9 10 15 +: 16 13 34
~~
A
[6a
0
FIGURE 3 (REVISED)
N
Defendant was not the triggerman and a serious contemporaneous .14 :
offense was involved. Death sentencing rates and race of the
victim death sentencing disparities: Procedural Reform Study (1973-78) -19(8/42) .15 ~
.05(1/19) (9/61)
™M
.05 15 i
.03 | .05(1/20) No Yes .32(7/22) «29
Serious
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Aggravating (1/33) .0(0/13) .17(1/6) |(8/28)
Circumstances
C
fy
No Yes No Yes
0 .33 .28 .17
Prior .0 | .000/17) .33(1/3) 13 .28(5/18) | .24 -50(2/4) +43
Reoeed 0/25) .0c0/8) 000/35) | (1/8) 00/3) _|(s/21) $35Q/9 10/1)
Yea No Yes No Yes No Yes No
.0 .0 .0 1.0 .0 42 «31
Mitigating .0 .0(0/13) .0| .0(0/4) .0 .0(0/2) .s0] 1.0(1/1) .0(0/6) 0 .42(5/12)| .38 2 .50(2/4) 43
Glreumstance® (0/18) 00/5) (0/7) .0(0/3) (0/6)| .0(0/4) (1/2) .0(0/1) .0(0/2) |(0/8) .0(0/1) 5/13) 33/3) (G/N
No Yes No Yes No Yes No Y o Yes No Yes No Yes No hd
.0 .0 .0 .0 .0 .0 .50 .0 .0 .0 .56 1.0 .33
(0/7) (o/11) (0/1) (0/6) (0/2) (0/4) (1/2) (0/3) 0/5) (0/4) (5/9) (1/1) (2/6)
0 0 - 0 0 0 1.0 0 0 0 - - .50
RR vai .0(0/5) .0(0/8) - .0(0/4) .0(0/1) .0(0/1) - 1.0(1/1) .0(0/2) .0(0/4) .0(0/3) .56(5/9) - - - .50(2/4)
Circumstances | (0/7) .0(0/3 .0(0/1) .0(0/2) .0(0/1) .0(0/3) .0(0/1) -0(0/1) -0(0/1) oo) - 1.0(1/1) -0(0/2)
2
1s 20 17 18 23 24 21 22 27 28 25 26 31 32 29 30
6G OF CASES TREE ANALYSES PRE-FURMAW e001 /9 82 PAGE 23
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rd
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0 (UNWEIGHTED) CASES werkt DROPPED DUE TO MISSING VALUES Nn
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1 TRANSFURMATLIUNDS
0 RECODE VALUES + LAG VARIABLES
19 IF/CuMPUlt OPeratlUNG
CPU TIME REQUIKEU ee 0.160 SECUNLS
. ~~ - 7
FN 1453 FINISH
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FIGURE 4 (REVISED) or
© .03
Defendant killed one person and no serious contemporaneous +05 (7/148) (11/324)
offense was involved. Death sentencing rates and race of the .02 (4/176)
victim death sentencing disparities: Procedural Reform Study (1973-78)
<
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SI | S— Yea
No Yes
0 0 .12 We. AS
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Record -0 -0(0/85) <0 1.00/19) .14(5/36] .08 .25(2/8) -25
(0/172) | .0(0/87) (0/52) .0(0/33) .02(1/44) (6/80) .25(3/12)| (5/20)
Yes No Yes Na : Yes No Yes No
Mitigati 2 0 9 0 .04 [AM .03 -
t
re eas 0. 1 00/8) .0 | .0(0/10) 0 | .0(0/17) 0] -000/2) 041/27) 44479) | 3 .25(2/8) 24 - .33
(0/156) .0(0/81) (0/16)] .0(0/6) (0/47) | .0(0/30) (0/5)} .0(0/3) .0 (0/38) (1/65) .17(1/6) |(5/15) <22(2/9) | (4/17) .33(1/3) (1/3)
No Yes No Ye
No Yes No Yes No Yes No Y
0 0 0 .0 -0 0 0 «0 .0 .03 .0 42 .0 40 .0 .50
(0/70) (0/86) (0/8) | Lon 8) (0/15) | Lo 32) (0/2) 0/3) (0/29) a/% (0/3) (5/12) (0/7) (4/10) (0/1) 1/2)
Minor 0 0 0 0 0 0 0 0 0 PL, 0 .31 0 42 . =
Aggravating .0(0/35) .0(0/40) .0(0/5) .0(0/5) .0(0/5) .0(0/12) .0(0/1) .0(0/1) .0(0/13) .07(1/14) .0(0/2) .57(4/7) .0(0/5) .67(2/3) - -
Circumstances
.0(0/35) .0(0/4 -0(0/3) -0(0/3) .0(0/10) .0(0/20) .0(0/1) -0(0/2) .0(0/16) .0 (0/22) .0(0/1) .20(1/5) .0(0/2) .29(2/7) .0(0/1) .50(1/2)
4 4 1 2 7 g 5 6 11 12 9 10 15 16 13 14
/
Serious
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Prior
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Mitigating
Circumstances
Minor Aggravating
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FIGURE 5 (REVISED)
Defendant killed one person and a serious contemporaneous «33
offense was involved. Death sentencing rates and race of the 46
victim death sentencing disparities: Procedural Reform Study (1973-78) -34(61/114) (68/147)
+21(7/33)
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Yes No Yes No Yes No Yes No
.18 | .17 | .14 38 34 | 10 -.20 -.08
.13 |.18(3/17) .13 |.17(2/12) L091} .14(1/7) .25 |.38(3/8) .70(14/20) 58 .70(23/33)| -68 .80(4/5) 83 .92(11/12) 93
(3/23) |.0(0/6) (2/16) .0(0/4) (1/11) -0(0/4) (3/12) |.0(0/4) .36(4/11) | (18/31) .0(0/1) [(23/34) 1.0(1/1) | (5/6) 1.0(2/2) |(13/14)
No Yes No No No Neo Yes No X
0 17 0 .17 .0 14 28 «33 .68 .60 a .69 .83 1.0 .92
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0 +21 0 .20 0 all fo 50. +29 - L711 -.20 - -. 10
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FIGURE 6 (REVISED)
Defendant killed two or more people and no serious contemporaneous =.01 32
offense was involved. Death sentencing rates and race of the victim .32(6/19) :
sentencing disparities: Procedural Reform Study (1973-78) Sc) (8/25)
.33(2/6)
0 .03
Serious :
Aggravating .0 .0(0/5) No Yes .43(6/14) 42
Circumstances (o/6)| -0(0/1) .40(2/5) |(8/19)
F
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No Yes No Yes
SCE. Re - -.23 1.0 :
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wi .0| .0(0/4) 0 | .0(0/1) ow/n) kre
/5)| .000/1) (0/1) - .50(2/4) | (5/15)
On TYR NL IB TE ; Yes Neo Yes No Yes No
0 - - - 36 3 0 bi 1 Sl |
Mitigating 0] .0(0/3) .0| .0(0/1) .0 | .0c0/1) - 24/7) | 22 .50(2/4) | .50 . 1.0()/3) 1 «75
Circumstances 0(0/1) (3/4)
(0/4){ .0(0/1) (0/1) - (0/1) - .50(1/2) | (2/9) .50(1/2) |(3/6) i
7 No Yes 3 0 No Yes No Yes io No t93 No Yes 17 n No Yes on No Yes No 5
i | (0/3) ol | | (0/1) (1/3) (1/6) (0/1) (3/5) 3/4)
- 0 - > " -1.0 .20 - .17 1.0
Minor . 67(2/3 1.0(3/3)
Aggravating .0(0/1) .0(0/2) .0(0/1) ” .0(0/1) - - .0(0/2) .20(1/ 5) -0(0/1) . ) - - - .
Circumstances = .0(0/1) a a 1.0(1/1) .0(0/1) - .50(1/2) .0(0/1
’ - 15 16 13 14
3 4 1 2 7 8 6 3. 12 9 10
FIGURE 7 (REVISED)
(
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Defendant killed two or more people and a serious contemporaneous
of fense was involved. Death sentencing rates and race of the 5 =.13 .88
victim sentencing disparities. Procedural Reform Study (1973-78) .87(13/15) (14/16)
1.0(1/1) Ji
=
- SC. Ne - [24
Serious x N *,
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Circumstances (4/4) |1.0(1/1) : - (10/12) —
No Yes No Yes
Fedor 1.0 | 1.0(3/3) : 1.0 - .75(6/8) | .75 1.04/64) | 1.0
Record "
(3/3) - (1/1)] 1.0(1/1) - (6/8) - (4/4)
Yes No Yes No Yes No Yes No
Hitigating 1.0 |1.0(3/3) 1.0 - . .67(2/3) | .67 .80(4/5) | .80 - 1.0(4/4) 11.0
Tumssances IH". am| 1.oa/m - Jam Jug rs
; No Yes No Yes No Yaz No Yes : No Yes No 3
1.0 1.0 1.0 .0 1.0 .80 0
(1/1) 2/2) (1/1) (0/1) (2/2) (4/5) (4/4)
Aescavating | 1-0a/n | 1.0/2) - . - . : i .0(0/1) 1.0(2/2) : .80(4/5) 3: ’ ; 1.0(4/4)
Circumstances - - 1.0(1/1) - - 8
19 20 17 18 23 24 21 22 27 28 25 26 31 32 25 30
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. s®Acuse UNIVERSITY
COLLEGE OF LAW / Center for Interdisciplirary Legal Studies
ERNEST I. WHITE HALL 7 SYRACUSE, NEW YORK 13210
(315) 423-4108
DATE: JANUARY 25, 1983
TO: NICHOLAS G. DUMICH, ASSISTANT ATTORNEY GENERAL-
STATE OF GEORGIA
FROM: DAVID C. BALDUS, DIRECTOR-CENTER FOR INTERDISCIPLINARY
LEGAL STUDIES
RE: CHARGES FOR PREPARATION OF REQUESTED MATERIAL
The charges for the preparation of the N.I.J.
cards for the Procedural Reform Study and the SAS tape
for the Charging and Sentencing Study are as follows:
1. Data Analyst-time preparing
the NIJ data in card format-
20 hours at $15.00 per hour $300.00
2. IBM cards for NIJ data 47.53
3. Tape for the Charging and
Sentencing data 15.00
$362.53
The shipping charges have been billed directly
to you.
Please make your check payable to "David C.
Baldus, Center for Interdisciplinary Legal Studies".
DB/ckb
® sWACUSE UNIVERSITY
COLLEGE OF LAW / Center for Interdisciplinary Legal Studies
ERNEST I. WHITE HALL / SYRACUSE, NEW YORK 13210
(315) 423-4108
January 25, 1983
The Honorable Mobley Howell
Chairman, State Board of Pardons
and Paroles
5th Floor, East Tower
Floyd Veterans Memorial Building
2 Martin Luther King Jr. Drive, S.E.
Atlanta, Georgia 30334
Dear Mr. Howell,
Thank you for your letter of January 11,
1983 authorizing my release, to the Attorney
General for the State of Georgia, of data which
I earlier obtained from Parole Board files.
We are pleased to provide the Attorney General
with the information he needs in the pending
litigation.
Sincerely,
Lyset Ef Sallelee
David C. Baldus
Professor of Law
DB/ckb
GEORGIA PAROLE BOARD FILE
Name
Abner, Ross J.
Adams, Otis
Adams, David J.
Aguilar, Gerardo
Albert, Eddie L.
Alderman, Jack
Aldridge, Glenn
Aldridge, Ernie L.
Alexander, John
Alexander, Charlie
Allanson, Walter T.
Allen,
Amadeo,
Freeman
Tony B.
Anderson, Alfred
Anderson, John A.
Anderson, Lemuel
Anglin,
Anglin,
Armour,
Arnett,
Arnold,
Bacon,
Bailey,
Baker,
Baker,
Baker,
Banks,
Banks,
Barber,
Barham,
John T., Jr.
John T., St.
butch L.
Len
Grady, Jr.
Stephen C.
Nathaniel W.
Daniel J.
Clarence J.
Bobby
Jerry
Army, Jr.
George W.
Horace
January 24, 1983
Name Case #
Barker, W.A. 386
Barrow, Keithen 407
Battle, Robert L. 356
Beasley, Freda B. 060
Beasley, Ryland W. 526
Bell, Willie E. 569
Bellinger, Robert K. 839
Bentley, James C. DOS
Berry, Otis 428
Berry, Oscar 914
Berryhill, Michael G. 362
Birt, Clarence 525
Birt, Billy Sunday 576
Blake, Joseph J. 581
Blankenship, Roy W. D27
Bolden, Charles L. 552
Boling, Randall E. C79
Bonds, Curtis 290
Boney, Elmer 620
Bostic, Wilhelemena 050
Boswell, Roy 201
Bowden, Jerome 810
Bowen, Charlie B. 933
Boyd, Jerry 1. D15
Brackett, Walter S. 834
Bradberry, Leonard 541
Bradshaw, Clarence 465
Brannen, Michael C. 379
Braxton, Jerome 423
Bridges, Lonnie 245
Name Case #
Brooks, William Anthony 218
Brooks, Dennis L. 460
Brooks, Bobby 878
Brown, Nathan C99
Brown, Jeanne 049
Brown, Harold W. 283
Brown, Thurston E. 300
Brown, Theodore 320
Brown, Bobby L. 323
Brown, Johnny L. 324
Brown, George M. 391
Brown, Paul E, 452
Brown, Frank Edward 566
Brown, John A. 574
Brown, Alline 739
Brown, Norris 748
Brown, Earl Lee 877
Brown, Paul, Jr. 893
Browning, Rodney D. 474
Bryant, James W. 532
Burger, Christopher A. D13
Burger, Bobby E. 562
Burke, Charles, Jr. 434
Burnett, Robert E. 554
Burnett, Billy J. 606
Burney, David 066
Burns, Ulysses 548
Bussey, Sharoide C. 718
Callaway, Willie G. 458
Calloway, King E. 361
Name Case #
Campbell, William B. 621
Carroll, Flla LL. 040
Cartier, Oscar V., Sr. 757
Carter, Judy 975
Casper, Barbara 798
Cates, Terry W. 840
Cervi, Michael A. D21
Chafin, Joseph B. D06
Chaney, Roger W, 723
Chenault, Marcus W. 980
Cherry, Homer 774
Clardyy, Robert D., Jr. 721
Clements, Andy C. DO7
Coachman, Clarence 363
Coats, Howard, Jr. 338
Cochran, Fred | 583
Coleman, Wayne C. 266
Coleman, Albert 419
Collier, Robert 1. D24
Collins, Roger M08
Colvin, Howard, Jr. 481
Conlogue, William S. 732
Contreras, Vicki R. 637
Contreras, John, Jr. 863
Cook, Joe B. C73
Copeland, Robert E. 711
Corbin, Ronnie 670
Corn, Charles T. 512
Couch, Anthony G. 655
Coulter, David 1. 733
Name
Courson, Lester Busby
Craver, Willie B.
Crawford, CW.
Crawford, Mary E.
Crawford, Cynthia
Crochron, Lillie M.
Crosby, Richard T., Jr.
Crowder, Claude T.
Culbertson, John
Curtis, Lonnie
Curtis, Johnny
Cuspard, Samuel
Dampier, Kenny
Dantignac, Donald E.
Davis, Oliver
Davis, Allen
Davis, Grady, Jr.
Davis, Freddie F.
Davis, Curfew
Dean, Bobby J.
Deberry, Raymond C.
Dent, Rosa B.
Depree, Bernard
Dickey, Albert K.
Dickey, James E.
Dix, Horace W.
Dixon, Elaine W.
Dixon, Bobby
Dixon, Harry 8S.
Dobbs, Wilburn W.
Case #
392
633
329
645
930
047
514
375
231
710
750
389
861
408
303
335
556
640
955
658
836
793
862
C94
580
578
C86
383
384
459
Name Case #
Dodson, Jess 334
Dorsey, larry C. 944
Douthit, Ronald 515
Doyle, Willie 814
Drake, Henry 921
Driggers, Earl E. 815
Duhart, Leon 410
Dulaney, Rodney K. 505
Dungee, George E. 267
Dupree, Limmie, Jr. 473
Durham, King D. 585
Durham, Willie 589
Edwards, Catherine 054
Edwards, Paul D. 498
Edwards, James 986
Ellenburg, George 609
Ellerbee, Roy A. 557
Emmett, Homer L. C96
Emory, Alton H. C85
English, Tony C. 355
Eubanks, Denorris 440
Eubanks, Jack S. 731
Evans, Joe W. D38
Evans, Mary A. 726
Evans, Ronnie 768
Everett, James R. 411
Farley, Michael 501
Farley, Sidney 539
Favors, Joe 979
Felts, James M. D19
Name
Fields, Richmond P.
Finney, Eddie W., Jr.
Fleming, Bruce A.
Fleming, Son H.
Fletcher, Eddie J.
Florence, Elmo L.
Floyd, Gary M.
Fiury, Thomas J., Jr.
Ford, Joseph A.
Forehand, Willie L.
Foster, Marcus C.
Fouts, Ronald T.
Fox, James P.
Freeman, Betty J.
Freeman, Benny F.
Gaddis, Bobby Gene
Gaines, Robert Lee
Gaines, Robert Allen
Gaither, Berto
Gandy, Jesse James
Gantt, Michael
Garcia, Robert L.
Garland, Claude
Gates, Johnny L.
Gatlin, Bob
Gay, Alice
Gaynor, James L.
Gibson, Samuel, III
Gibson, Ellis
Giles, Lillie B.
Name
Gillespie, David W.
Gilliam, Cleveland
Glass, Dorsey L.
Godfrey, Robert F.
Goldman, Gary
Goodrum, Johnny G.
Goodwin, Terry
Gordon, Linda
Graham, Earnest
Graham, Isaac
Gravely, Billy C.
Graves, James L.
Green, Roosevelt, Jr.
Gregg, Troy lL.
Griffin, Charlie L.
Griffin, John P., 11
Griffis, Stanley
Griggs, Tommy L.
Gunter, Jerry
Gunter, Gail
Gunter, Tommy
Haisman, Janice M.
Hall, Linda F.
Hall, Jimmy Don
Hall, Jerry .B.
Hall, Jimmy, Jr.
Hamby, Bige E.
Hamilton, Paul
Hance, William H.
Hardy, Billy
Case #
446
855
328
Z15
584
65S
450
799
496
949
795
635
751
279
D23
547
845
699
564
770
828
831
C84
647
705
745
C87
860
D51
776
Name Case #
Hardy, Kenneth 777
Hardy, Challioux 808
Harris, Larry J. 412
Harris, Kenneth A. 577
Harrison, Jimmy 394
Hartwell, Robert N. 227
Hawes, Eddie M. 618
Hawes, Gary Lee 953
Heard, Johnny 441
Henderson, Aubrey, Jr. 359
Henderson, Roy C. 614
Henderson, Benjamin W. 898
Henderson, LeRoy 977
Henry, Joseph L. 550
Herlong, James, Jr. 322
Herrman, William E.J. 284
Hesse, Richard D. 734
Hester, Gloria S. 673
High, Jose M. C77
High, Ralph 228
Hill, Larry 262
Hill, R.J. 327
Hill, Robert 365
Hill, Alice A. 904
Hill, Charles 963
Hilton, John R. 871
Hixson, Jerry 676
Hodge, Anderson, Jr. 331
Hollis, Daniel 1. 339
Holmes, Lucille 034
Name
Holton, Kermit E.
House, Jack C.
Howell, Jerome
Howington, Ernest
Hudson, Rolleana
Hudson, Bill
Hudson, Willie B.
Hudson, Israel
Hurt, Otis, Jr.
Hutchinson, Frank
Ingram, Willie E.
Issacs, Carl J.
Jackson, Eloise
Jackson, Catherine A.
Jackson, Clarence
Jackson, Rudolph A.
Jackson, Tony
Jackson, Steve
Jackson, Jerry L.
Jarrell, David A.
Jenkins, Earl
Johnson, Johnny L.
Johnson, Edward E.
Johnson, Walter H.
Johnson, Charles C.
Johnson, Ray
Johnson, Willie J., Jr.
Johnson, Henry
Johnson, 'Jd.W., Jr.
Jones, Laverne
10 ~-
Case #
DO3
553
769
662
053
400
643
954
540
587
061
265
C76
057
211
237
482
568
819
307
694
C67
C98
345
544
801
919
942
957
C93
Name
Jones, David L.
Jones, Howard
Jones, Robert
Jones, Harold
Jones, Willard C.
Jones, Terri J.
Jones, Frederick E.
Jordan, Forrest
Jordan, William
Jordan, Jack
Kennedy, James
Kesler, Anthony
Kessel, Emory W.
King, Freddie LIL.
King, Jack, Jr.
King, James E.
Kyles, Donald D.
Lacount, Victor
Lakes, Wayne T.
Lamar, Leon
Lamb, Randall R.
Lamb, Robert G.
Lane, Jerry R.
Lanham, Darrell
Lanier, Hildery
Lay, Francis
Leach, Franklin
Lee, John D.
Lee, Ennis
Andre
B.
Hd
Legare, Andrew P.
ll -
Name Case #
Leggett, Johnnie B. 619
Lerch, Thomas C., Jr. 330
Leutner, Christopher 348
Lindsey, James A. 349
Little, Charles 582
Livas, Jerome 784
Lively, James L. 433
Llewellyn, Robert 650
Longshore, George W.I. 791
Looney, Larry 596
Lowe, Michael J. 275
Lowe, Daniel L. 783
Lumpkin, Michael 376
Mack, Alvin 880
Maddox, Marcus P. 390
Maddox, William H. 444
Madry, Jose W. 706
Madry, Luther E., Jr, 707
Maher, William R. 608
Martin, Danny D. 625
Mason, Guy 008
Mason, John .E. 254
Massey, Ricky L. C88
Mathis, Willie 790
Maynor, Ossie, Jr. 948
McAllister, Freeman 313
McClendon, Otis 461
McClesky, Warren Ll6
McCorquodale, Timothy 551
McCrary, Willie R. 268
Name Case #
McDonald, Raymond 649
McDuffie, John H. 632
McEachin, Carey E. D25
Mikle, Jerry J. 477
Miller, Everett T. 603
Miller, Sammy 756
Mitchell, William B. 491
Mitchell, Ruby 642
Mitchell, Randy D. 715
Mize, Floyd W. 657
Mobley, Steve Knox, Sr. 340
Montgomery, Calvin 689
Montgomery, Frank 771
Moody, Barbara L. 813
Mooney, John H. C91
Moore, Robert L. 469
Moore, William N. 559
Moore, Carzell 672
Moore, Willie 691
Morgan, Jon T. 656
Morgan, Jimmy W. 722
Morgan, Alphonso 992
Morris, Dwayne C. 708
Moten, James 226
Move, L.C. 396
Moye, Lewis 397
Muhammad, Mujahid J. 796
Mulligan, Joseph H. 610
Nair, Fleming, Jr. 306
Nalley, Larry J. C54
Name
Natson, Robert, Jr.
Nelms, George A.
Norris, James L.
Nunnally, Alice E.
O'Dillon, James D.
Oglesby, William H.
Oliver, Richard A.
Owens, Sammy L.
Pace, Charles E.
Page, Milton
Parks, Jesse
Parrott, Keiter
Passmore, Larry
Patterson, Roy
Paul, Willie James
Peebles, Elvin
Peek, David
Peppers, Joseph G.
Perkins, Leroy
Peters, Oliver, Jr.
Phillips, Thomas E.
Pierce, Betty A.
Pierce, Fred
Pinson, Willie J.
Pittman, Roy T.
Pollard, Oline
Porter, Linda
Potts, Jack H.
Powell, Myrtice
Powell, Ralph E.
14 ~
Case #
C89
597
712
046
829
824
D50
426
318
951
016
293
357
572
538
943
586
681
C55
698
499
805
969
378
830
966
045
495
058
258
Name Case #
Presnell, Virgie D., Jr. 593
Pressley, Frank L. 373
Prevatte, Ted A. 312
Procter, Charlie, Jr. 468
Proveaux, Carl 374
Pryor, Leonard 510
Pulliam, Jessie L. 488
Pullin, Ralph, Jr. 414
Quarterman, Marvin C82
Quarterman, Rufus 570
Ralph, Richard G. C74
Ramey, William G., Jr. 555
Rampley, Joseph W. 304
Ray, William B. 354
Reaves, Donald R. 692
Redd, Judy 895
Redd, Bob 958
Reddish, Donald 981
Redfield, Queselle 661
Reed, Charles 480
Reeves, Robert 314
Reeves, Gary 370
Reeves, Richard H. 785
Revill, Frank, Sr. 342
Richardson, Jerry 472
Ricks, Roy F. 626
Rini, James J. 388
Roberson, Clemmie A. 543
Roberts, Leonard L. 737
Roberts, Vincent D. 755
Robinson, Arthur 653
Name Case #
Ross, Delores C. 037
Ross, Willie 285
Ross, Freddie D. 825
Ruffin, Judson C78
Samples, Ricky L. 239
Sanchez, Adam A. 447
Sanders, David 225
Sanders, Rosa Mae 935
Sanford, Kenneth 841
Sanks, Deborah V. 042
Scott, Charlie, Jr. 366
Scott, Frank S. 598
Scott, Earl 680
Sego, Otis 924
Senior, Tommie L. 517
Shattle, Charles R. 920
Shavers, Michael DO1
Shaw, Jill C. 052
Shaw, Tony Hugh, Sr. 602
Shaw, John L. 807
Sheffield, Walter H. 358
Sheffield, Johnny D. 713
Shepherd, Jimmy F. 448
Sheppard, Ricky L. 352
Shinholster, Freddie 276
Shy, Thomas H. 317
Simmons, Joe D. 256
Sims, Richard 347
Sims, Albert. L. 387
Sims, Lillie M. 720
Name
Sims, Charlie Lee
Smith, Willie A.
Smith, Rebecca A.
Smith, Ronald D.
Smith, Gary
Smith, Bobby
Smith, John E.
smith, Brian E.
Smith, James F.
Smith, Betty O.
Smith, Florence
Smith, Tony M.
Smith, William
Smith, Lewis C.
Spain, James, Jr.
Spence, David O.
Spencer, James Lee
Spivey, Ronald K.
Spraggins, Eddie
Stack, Howard
Stamper, Robert L.
Stanley, Ivon R.
Staymate, Cheryl E.
Stephens, Alpha O.D.
Stesiak, Wilma I.
Stevens, Thomas D.
Stewart, Grace M.
Stewart, George
Stinson, Henry Pete
Stocks, James
17 -
Case #
778
D10
064
249
451
487
549
561
638
646
851
899
915
93]
738
381]
936
704
641
941
956
627
062
9¢4
038
D14
043
402
848
697
Name Case #
Stone, J.B. 669
Stovall, David W. 519
Street, George 202
Stroud, Eddie W. D41
Stroud, Stanley L. 590
Stroud, Tommy J. 591
Sullens, Coy M. 749
Sutton, Willie C. 509
Sutton, James 927
Tamplin, Roland 497
Tankersley, Leroy 294
Tanner, James 802
Tarpkins, Johnny 385
Tarpkins, Robert 922
Taylor, Patricia 055
Taylor, James W. 247
Taylor, Ervin G. 502
Taylor, Michael 806
Terry, Sonja V. C80
Thomas, Susan P. 065
Thomas, Larry 455
Thomas, Counce, III 476
Thomas, George, Jr. 563
Thomas, Joseph 628
Thomas, Charlie L. 719
Thomas, Kenneth V. 740
Thomas, Emanuel 800
Todd, Ralph L. 616
Tucker, William B. D20
Tucker, Anita .J. 063
Name
Tucker,
Tucker,
Tucker,
Tukes,
Turner,
Turner,
Usher,
Waites,
Walker,
Walker,
Walker,
Walton,
Millard F.
Dixie
Charles F.
Carl D.
Rudolph A.
Anthony L.
Jimmy
Charles G.,
Charles E.
Virgil, 3x.
Vernon Red
Annie R.G.
Ward, Edward, Jr.
Ward, Harold L.
Ware, J. D.
Washington, Michael
Washington, Willie
Washington, Matthew
Waters,
Watters,
William M. Watts,
Weldon,
Wessner,
Willie J.
Wiley W.
Glen
Matthew F.
West, John G.
Westbrook,
Wheeler,
White,
White,
Wilcox,
Wiley,
Thomas L.
William P.
Edna
Oliver
Rosa M.
Johnny M.
Jr
19 -
Case #
717
921
929
565
371
648
336
663
520
634
725
032
250
677
765
D16
296
702
251
690
716
332
425
746
C83
592
764
905
413
035
Name Case
Wilkerson, Betty J. 056
Williams, Claude C97
Williams, George C. 261
Williams, Willie J. 277
Williams, Robert 429
Williams, Walter W. 630
Willis, Leroy 401
Willis, Henry, 111 507
Wilson, Robert W. D22
Wilson, Melvin 325
Wilson, Billy R. 333
Wilson, William H. 377
Wims, Marvin L. 926
Wood, Jack P. 270
Wood, Lewis 804
Woods, Beatrice 688
Woods, Donna R. 852
Wright, Velma T. 612
Young, Charles P. D02
Young, Charlie 494
Young, John 571
Young, Tommy 674
Zirkle, Carolyn D. 048
é a)
January 28, 1983
Hon. Ben H. Carter, Clerk
United States District Court
for the Northern District of Georgia
2211 United States Courthouse
Atlanta, Georgia 30355
Re: Warren McCleskey v. Walter D.Zant,
No. C81-2434A
Dear Mr. Carter:
Enclosed for filing are an
original and one copy of Petitioner's
Response to Respondent's Motion for
Enlargement of Time for Discovery in
—- the above-captioned case. Thank you
very much.
Sin erely,
£3 8 73
0 Leads Hm
\_Jghn Charles Boger
“yt”
JCB:agf
“cc: Nicholas G. Dumich, Esq.
$10 COLUMBUS CIRCLE {2172) 5886-83987 NEW YORK, NL YY. 1009
DATE:
JACK BOGER e PR TW |
DAVID BALDUS
CARDS & TAPES FOR THE ATTORNEY GENERAL OF GEORGIA
JANUARY 21, 1983
The following items are ready for transfer to
the Attorney General's Office.
L
A. Charging and Sentencing Study.
PB»1) SAS Tape with document "SAS Tape Documentation".
AP 2) Memo "Charging and Sentencing Study: Codebook
& Files" with "File LDF Task" attached.
Corll omg ols to pe fom PB
B. Procedural Reform Study.
JB1l) Memo "NIJ Data" Codebooks, Data Files Etc."
with "Questionnaire for Procedural Reform
Study" and"DEATHDOC" attached.
TR 2) Five boxes of cards with data on 594 cases
and 607 decisions.¥ Nowe ZH |
JuB3) Five Explanatory Documents.
a) ldsting of Card Box 5.
Lb) Code for SAS Control Deck.
c) Dump of Card Images with SAS Means of
Variables.
d) SPSS Control Deck Code.
e) SPSS Listing of Variables.
©) hud ot (ew BF wf Uden amemg—
TO:
FROM:
RE:
DATE :
WHOM IT MAY CONCERN
DAVID BALDUS
CHARGING AND SENTENCING STUDY: CODEBOOK & FILES
JANUARY 19, 1983
Codebooks
l. The codebook for the original data
from the Department of Corrections
(DOC) and from the Board of Pardons
and Paroles (BPP) is at Appendix C
of my affidavit dated June 22, 1982.
2. The coding for the recoded variables
is in the enclosed document "File
1L.DF. Task".
Files
1. "Select if" statements are not needed
to select the appropriate file of
cases. ,Selection of the outcome
variable will automatically exclude
non-applicable cases from the analysis.
2. The Outcome Variables.
At various times the following outcome
variables were used:
eo 2200
INDICT Was defendant indicted for murder or voluntary
manslaughter?
1= Murder
0= Voluntary manslaughter
N= Unknown
PROSAGPL Did the prosecutor offer or agree to a plea
bargain?
1= yes
2= no
N= unknown
PMURAGRE Did the prosecutor offer or agree to a murder
plea or a plea to another crime?
= Murder
= Other crime
= unknown or no offer
PRECSENT Did the prosecutor agree to recommend a
sentence to the court?
1= yes
0= no
N= unknown or no plea bargain offer
GLTPLEA Did the defendant plead guilty to either
murder or voluntary manslaughter?
1= yes
0= no
N= unknown
PLEMRVM 1f defendant plead guilty was the plea to
murder or voluntary manslaughter?
= Murder
= Voluntary manslaughter
= no guilty plea
CVTMRVM Was defendant convicted (plea or at trial)
of murder or voluntary manslaughter?
1= Murder
0= Voluntary manslaughter
JURCVMUR Pid the jury or court convict defendant of murder
or voluntary manslaughter at a trial for murder?
1= Murder
0= Voluntary manslaughter
N= Defendant not charged with murder or
there was no jury trial on murder charge.
PSEEKALL If the defendant was convicted of murder
(plea or trial) was there a penalty trial?
ves
no
no murder conviction or unknown whether
a penalty trial
PSEEKNGP If the defendant was tried and convicted of
murder, was there a penalty trial?
yes
no
no murder conviction at trial, or
unknown whether there was a penalty
trial
PSEEKGP If the defendant pled guilty to murder did the
prosecutor seek death?
no plea of guilt to murder
DEATHSNT If there was a penalty trial &id the judge or
jury impose death?
l= yes
0= no
N= no penalty trlal or unknown if
there was a penalty trial [includes losers]
JURYSENT If there was a penaity trial before a jury,
did it impose a death sentence?
ves
no
no penalty trial or unknown if
there was a penalty trial [includes losers]
DSENTALL Pid the defendant receive a death sentence (all cases)?
l= yes
O0= no
DPMURIDT If defendant was indicted for murder, did he/she
receive a death sentence?
l= ves
0= no
N= no murder indictment
SENTALL
DPMURCVT
DPMTRIAL
MURVMPLE
MURPLEA
What was defendant's sentence?
l= term of years
2= vy tife
3= death
If defendant was convicted (by plea or trial)
of murder, did he/she receive a death sentence?
l= ves
O= no
N= no murder conviction
If defendant was convicted at a murder
trial, did he/she receive a death sentence?
l= yes
O= no
N= not convicted at a murder trial
Defendant indicted for murder and voluntary
manslaughter plea accepted.
l= yes
0= no
N= indicted for voluntary manslaughter
Defendant pled guilty to murder, and no penalty
trial was. held. ;
yes
no
no plea to murder or plea with a
penalty trial
ask | A S.U. ACADEMIC COMPUTING CENTER
//LARTK JOB (144,XXXX) BRICK
/*JOBPARM TIME=10,LINES=55
//*
//% THIS 1S LDP TASK a
//* THIS JOB STREAM CONSISTS OF FOUR JOBS~---
//7%¥ LDF TASK A, LDF INDEX A, LDF LINDEX A, LDF TASK2 A
//%¥ SEE IJRLDF TASKGP A
//*
/*¥ROUTE PRINT SUMVS
// EXEC SAS, REGION=450K
//HOBK DD UNIT=SYSDA,SPACE= (TRK, (450,80)) TEMPORARY LATA SETS
//TASK DD DSN=LAW.BLR.LDF.TASK1,DISP=0OLD
//MASTER DD DSN=LAW.BLR.LDF.MAST!,DISP=SHR
* THIS IS LDF TASK A=-DO NOT FORGET THE PROTECT 3
OPTIONS OBS=10000 GEN=0 LEAVE=5000 ERRORS=5 MACROGEN :
TITLE L.D.F. GEORGIA PAROLE BOARD PROJECT 3
TITLE2 CENTER FOR INTERDISCIPLINARY LEGAL STUDIES ’
TITLE3 COLLEGE OF LAW, SYRACUSE UNIVERSITY, SYRACUSE, NEW YORK 13210 :
TITLE4 TASK RUN FOR RECODED VARIABLES :
BRERA A ORK KORO OK KK OOK 330K ok Kk ok oR ok KK ok Kk ook kok ok ook 3k ok oko ok HO ok ok oR
LDF TASK RUN TC CREATE CUTCOME VARIABLES AND AGGRAVATING AWD
MITIGATING VARIABLES
RANA AKA AK AKA KK ROKK KK KK KR RK RoR ok KR SK ok Sk oko ok of ok ok sk ok ok ok oo ook ook ooo
’ DATA TASK ;
LENGTH DEFAULT=3 CTYLABEL $20 ROUND? ROUND2 ROUND3 ROUNDL RCUNDS ROUNDG
ROUND7 INDIDX INDIDX1 INDIDX2 VMFLEIDX VMPLIDX1 VMPLIDX2
MEPLEIDX MRPLIDX1 MRPLIDX2 JURCVIDX JRCVIDX1 JRCVIDXZ
PENTRIDX PTRIDX1 PTRIDX2 DTHSNIDX DISNIDX1 DTSNIDX2
SNTALIDX SNALIDX! SNALIDX2 DPMURIDX DPMRIDX1 DFMRIDX2 8 SET MASTER. LDF ;
-
»
CTYLABEL = 'W-OTHER
CTYPE = 6 ;
IP LDF16 = '99' THEN CTYPE = -
IP {LDF13 4! OF LDFI4 = 101 OR. LDE14 =-131? ) AND
(LDF 16 198% Ok LDFIG = 17601 R LOPS = 1798 OR LDF37 = 98 OR LDF37 = 700 CR LEF37 = 798 OF LDP37 = 500 ) AND LDF38 = | THEN CTYPE = 2 ; LE {LDF13 = 3%7 OF LOPI4 = +97 GRIP = 2373 ‘Axnp (LDF16 = *94' OE LDFI6 = v700' OR LDF16 = '798' Qf LDF37 = 98 OR LOF37 = 790 OR LDF37 = 798 OR LpF37 LDF36 = 2 THEN CIYIE = 3 .
»
2 2 .
& ;
¥
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& i
~ PILE: LDF LINDEX S.0. ACADEMIC COMPUTING CENTER
| & THIS IS LDF LINDEX A 01/12/83 WHICH DOES THE
LOGISTIC INDICES AND SCALES ;
*THE FOLLOWING STATEMENTS CREATE THE LOGISTIC BEGRESSION INDICES;
INDIDXL=1.921 + (1.113)*%IDDEFGUN + (1.965)*EYEWITID +
(-4.815) *VDEFECT + (-.958) *DSELFDEF + (-3.554)*DPROPDEF +
(=2.871) *DEFADMIT + (.935)%FEMVIC + (.890)*DEFLED + (1.312)*LDFBSUH
+ (-1.060)*%DEFFEAR;
VMPIDXL=.297+4(.303) *DSTATVM+ (—2.615)*YCUNGVIC+ {-1.476)*EANIC+
+ (—2.527)%INSANDEF + (2.466) *%CPLESSEN + (-.624)%BADID + (—.777)*%MULSTAB
+ (-.643) %GUN + (-1.232)*COPERP + (-.713)*LDFBSUM + (-1.351)*%ADDCRIME
+ i (e973) %VOLMANS + (—-1.474)%DEFSURLT + {(.348)*MISARST;
VEPIDXL2= 1.378 + (-.969) *NCNPROPC + (-.515)*FEARVWEP + {.662)*PROVPASS
(=.786) *NOVPROV + (1.48) *VABUSEAR + (-.527)*DSELFDEF + (2.745)%DVIOLOTY
(--013) *xDEFAGE + (.34)*DCONVICX + (-.759)*DCONVICT + (~-.791)*SCIEVID
(=< 554) *INCHDRPT + (-1.494)*THROAT + {(-2.406)*DPLEAS + (—.U87)*DEFSUR
(-1.969)*%SMDEFJUS + (.539)*LDFB7B ¢ (.456)*MISARST + (-1.780)*%DEFSURLT
(«973) *VOLMANS + (-1.432)*ADDCRIME + (-.744)*LDFBSOM + (-1.465)%COPERP
(976) %*GUN + (—1.194)*%*MULSTAB + (2.99) *CPLESSEN + (—2.485) *INSANDEF
(—1.278) PANIC + (-2.427)*%YOUNGVIC + (.574)*DSTATVH;
NEW ;
MPIDXLU4= 1.378 + (-.969) *NONPROPC + (-.515)*FEARVHEF + (.662) *EROVPASS
(-- 786) *NOVPROV + (1,48)*VABUSEAR + (-.527)*DSELFDEF + (2.745)*%DVICLOTH
(—-013) *DEFAGE + (.34)*DCONVICX + (-.759)*DCONVICT + (-.791)*SCIEVID
(—1.494) *THROAT + (-2.406)*DPIEAS + (—-.U487)*%DEFSUR
(=1.969)*%SHDEFJUS + (.539)*LDFE7B + (.U456)*MISARST + (-1.780)*DEFSURLT
(«373) *VOLMANS + (-1.432)*ADDCRIME + (-.744)*LDFBSUM + (-1.465)*COPERP
(-=976) *GUN + (—1.194) *MULSTAB + (2.99)*CPLESSEN # (-2.485)*%INSANDEF
(—1.278)*%PANIC + (-2.427) *YOUNGVIC ;
VHPIDXL3= 2.171 + (-.66U)*RECCRI¢# + ({.U18)*%FELARST + ({.7u48)*PROVEASS
(-1.491)%NOVPROV + (-.U462)*VICVERD + (—2.242)%VASTFEAR + (1.531) *%VABUSEAR
(-1.097) *DSELFDEF + (.492)*DRGHIS + (-.028)*DEFAGE + {-1. 148) *DEFADMIT
(=2-115)*DPLEAS + (-.564)*DEFSUR + (-.471)¥LDFB7EXP + (-2.552)*DEFSURLT
(1.313) *VOLMANS + (-1.371)*%ADDCRIME + (~-1.486)*COPERD + (=. 647) *GUN
(-- 881) *MULSTAB + (2.280) *CPLESSEN + (—~2.465)%*YOUNGVIC + (-635) *DSTATVN;
MRPIDXL= -2.321 + (,829)%FENVIC + {~« 44) #TVIDINDX + (1.502)#%IDWITCOP
(1.325) *FELMUR + (1.070)*VDEFOLD + (-2.932)%SHOOTOUT + (2.010) *FANMDIS
(2.877)*%DEFCHILD + (4.003) *DEFADKIT + (—1.983) *BADID + (1.042) *JEALOUS
(-007) *MONTHJL + (.834)*DKESIST + (-1.065)*VOLMANS + -(-2.308)%NOKILL
(1. 11) *SMDEFCO + (1.924) *KACENMOT + (—1.561) *LDFB7D + (-2.608) *LDFE7C
+ {-3.313)*LDFBI + (1.007)=%LDFB4 + {1.367)*LDFB3;
NRPIDXL2= -5.32 + (.779)*FEMVIC + (~.4)%EVIDINDX + (1.439) *IDHITICOP
+ (1.179) *%FELUUR + (1.257)*%VDEFOLD + (-3.34)%*SECOTOUT + (1.9935) *FANDIS
+ (3.162) *DEFCHILD + {4.8303) *BEFADMIT + {(-1.939)%BADID + (.984) *JF2LOUS
“4 4 q
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©
WHOM IT MAY CONCERN
DAVID C. BALDUS
NIJ DATA: CODEBOOKS, DATA FILES ETC.
JANUARY 19, 1983
A. Codebooks
1. The ‘coding for the primary data on
the tape is in the enclosed "Questionnaire
for Procedural Reform Study".
The coding for the "recoded" variables
is in the document DEATHLOC.
Data Files
1. To analyze all the cases including
multiple penalty trials, use all the
cases, i.e., W482 = 2,
To analyze the decision to have a penalty
trial, we excluded second and third
penalty trials. To exclude them, select
if w482'= 2 §& LOSER = 0.
To analyze only penalty trial decisions,
select if W482 = 2 and [X2481JRC = ] 0}.
outcome variables are:
Life or death sentence for all
cases (X4%81C).
Penalty trial was held ox not (X2481PRC).
Life or death sentence was imposed at
penalty trial (X2481JRC).
QUESTIONNAIRE FOR
PROCEDURAL REFORM STUDY by
David. C. Baldus
George Woodworth
Charles Pulaski Jr.
September 1982
pr: eaavoc] uepsast A S.U0. ACADEMIC COMPUTING CENTER
ACCD ACCIDENT DEFENSE IF (4 EQ WU4IAA OR
W41AB OR W41AC OR
W41AD)
ACCD = 1
DEF COMM ADD CRIME AFTER KILL IF (31 EQ W30A OR
W30B OR W30C OR
30D OR W30E OR
W30F)
ADCRIN = 1
AFPURSCL?2 DISPROPCRTIONALITY SCALE #1 IF EXCSIDX3K<
~«035 THEN
AFORSCLZ2 = 1
IF -.05<=EXCSIDX3K
«09 THEN
AFURSCL2 = 2
IF .09<=EXCSIDX3<
«23 THEN
AFURSCLZ2 = 3
IP «23<=FXICS8IDX3<
«37 THES
AFURSCLZ2 = 4
IF .37<=EXCS1IDX3<
«5) THER
AFURSCLZ2 = 5
IF .51K=EXCSIDX3<
«65 THEN
AFURSCLZ2 = 6
IF .65<=EXCSIDX3<
«73 THEN
AFURSCLZ2 = 7
IF EXCSIDX3>
- 79 THEN
AFORSCLZ2 = 8B
DEFENDANT AGE AT TIME OF CRIME IF (1=<AGE2=<16)
THEN AGE = 1
IF (17=<AGE2=<20)
THEN AGE = 2
IF (21=<AGE2=<25)
THEN AGE
fF YE a? A
TO: USER OF NIJ DATA ON CARDS
FROM: DAVID BALDUS
DATE: JANUARY 21, 1983
l. With the cards are two control decks. One
for SPSS and one for SAS. 1 recommend that
you use SAS since that is the system we have
used. Also because of the way SPSS handles missing
data, it will be easier for you.to confirm |
your analyses by checking means.
2. One of the documents "List of Case Numbers,
Names and ID Numbers (NX)" gives the defendants
name, our case number and an ID number. if
you are using the SAS control deck read variable
DID (column 4-6 on each card) to specify the
NX number. If you are using the SPSS control
deck you need to specify columns (4-6 of each
card) to get the NX number.
w
y
ACADEMIC COMPUTING CENTER
PAGE 001 'S. Us a DECKS PUNCH FILE
LISTING OF CARDS BOX 5
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EXECUS ICN TI 1kF MINLIES
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
V.
HABEAS CORPUS
WALTER D. ZANT, WARDEN,
GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER,
*
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Respondent.
MEMORANDUM IN SUPPORT OF RESPONDENT'S
REQUEST FOR AN ENLARGEMENT OF DISCOVERY TIME
During a conference held in chambers on November 19,1982,
this Court intially granted Respondent sixty (60) days to
pursue discovery pertaining to the issue raised by Petitioner...
which attacks the application of capital punishment in
Georgia. Respondent has received responses or hdeptions to
the questions in his first set of interrogatories, and expects
to receive shortly a reponse to Respondent's request for
production of documents and tangible materials. Included in
the tangible materials requested are the computer tapes and
cards containing the raw data which has been utilized in the
studies which Petitioner relies upon. Respondent has also
requested the names and specific information pertaing to the
numerous cases contained in portions of the preliminary
findings for the studies.
Respondent believes that it would be most beneficial and
economical to depose Professor Baldus after Respondent has an
an opportunity to review and at least partially analyze the raw
data which forms the underlying basis for these studies.
Moreover, as noted in the attached motion, in his answers to
Respondent's interrogatories, Petitioner has listed at least
two other witnesses from California who appear to be experts in
social science research and psychology. Respondent needs an
additional period of discovery to explore the potential subject
matter of these witnesses' testimony.
Of course under Rule 6(b) of the Federal Rules of Civil
Procedure, this Court for cause shown may, in its discretion,
grant an enlargement of time within which a party is required
to act. As this Court may surmise from reviewing only the
preliminary findings of Dr. Baldus, and his June, 1982
affidavit, the two statistical studies which he has developed
appear to be quite extensive and detailed. Respondent has
requested information on other regression analyses which have
been done in the two studies, other than those listed in the
preliminary finding, and counsel for Petitioner has indicated
his objection to listing such information, indicating that
Professor Baldus has conducted literially Kunsces of regression
analyses involving thousand of facts which have been adjusted
2 for and ccnsidered. In order to intelligently depose Professor
Baldus on specific areas pertaining to his specific regression
analyses, Respondent needs a short additional period of time to
at least conduct a partial independent analysis of the raw data
underlying the studies.
CONCLUSION
For all of the aforesaid reasons, Respondent respectfully
requests that this Court grant Respondent an additional period
of sixty (60) days within which to complete discovery in this
case.
Resnedtinlly submitted,
MICHAEL J. BOWERS
Attorney General
ROBERT S. STUBBS II
Executive Assistant Attorney General
MARION O. GORDON
First Assistant Attorney General
\ Lh
Lup B. ari
Senior Assistant/Attorpey General
NICHOLAS G. DUMICH °°.
Assistant Attorney General
Please serve:
NICHOLAS G. DUMICH
132 ‘State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3499
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing pleading, prior to filing the
same, by depositing a copy thereof, postage prepaid, in
the United States Mail, properly addressed upon:
Mr. Robert H., Stroup
Attorney at Law
1515 Healey Building
Atlanta, Georgia 30303
Mr. John Charles Boger
Attorney at Law
10 Columbus Circle
New York, NY 10019
This 15 of January, 1983
; :
NICHOLAS G. DUMICH
January 10, 1983
Hon. Ben. H. Carter, Clerk
United States District Court
for the Northern District of Georgia
2211 United States Courthouse
Atlanta, Georgia 30335
Re: Warren McCleskey v. Walter D. Zant,
No. C81-2434A
Dear Mr. Carter:
Enclosed for filing are Respondent's
Answers to Petitioner's First Interrogatories
in the above-captioned case, together with a
certificate of service on respondent.
&
Thank you very much.
Sincerely,
0 $ 3
sl £5 3. &7
t
John Charles Boger
PR
JCB:agf
enc.
cc: Nicholas g. Dumich, Esq.
186 COM. UMBUS CIRCLE {2129 526.8397 NEW Y OR KK. N..: YY. 10019
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy
of the foregoing pleadings upon counsel for respondent,
lary Beth Westmoreland, Esqg., by personally delivering a
copy of same to her at 132 State Judicial Building, 40
Capitol Square, S. W., Atlanta, Georgia 30334.
This 20th day of September, 1983.
ROBERT H. STROUP
February 4, 1983
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
Dear Nick:
Enclosed are Petitioner's
Responses to Respondent's Request for
Production of Documents and Tangible
Materials, dated January 3, 1983.
Best regards.
Sincerely,
aude
Son Contes Boger
JCB:agf
encs.
COLUMBUS CIRC LE { 212) 58288-83857 NEW YORK, MN. Y. 1006159
The Department of Paw
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
December 9, 1982
Honorahle J. Owen Forrester
United States District Judge
Northern District of Georgia
United States Courthouse
75 Spring Street, S. W.
Atlanta, Georgia 30303
Re: Warren McCleskey Vv. Walter D. “Zavit, Case
No. C81-2434A - Interrogatories.
Dear Judge Forrester:
For your information I have forwarded to YOu a copy of
Interrogatories which I have served upon Petitioner's
counsel in the. above- -3tyled case. In accordance with the
local rules of the Northern District, I have not filed
the original with the Clerk.
I am simply forwarding of these to you to keep you informed
of the progress of discovery in this case.
Sincerely,
¥{ y X a rE
PZ HACK) : (Lehato Li Ar
NICHOLAS G. DUMICH (/
Assistant Attorney General
NGD/cab
CC: Mr. Rober: H. Stroup
Mr. John Charles Boger
4 *
The Bepartment of Lat
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
December 9, 1982
Mr. John Charles Boger
Attorney at Law
10 Columbus Circle
New York, New York 10019
Re: Warren McCleskey v. Zant, Case No. C81-2434A -
Interrogatories.
Dear Mr. Boger:
Please find a copy of Respondent's First Interrogatories
which are being submitted to you in accordance with Judge
Forrester's order in the above-styled case. If there
is any problem with these, please do not hesitate to
contact me at (404) 656-3499.
Sincerely,
Ad
NICHOLAS G. DUMICH
Assistant Attorney General
NGD/cab
Enclosure
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McKLESKEY,
Petitioner,
CIVIL ACTION NO. C81-2434A
Vv.
WALTER D. ZANT, WARDEN,
GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER,
HABEAS CORPUS
Respondent.
E
E
E
E
E
E
E
E
E
E
E
E
:
MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT'S MOTION
As noted in the attached motion, in an order filed
October 8, 1982, this Court initially scheduled an evidentiary
hearing for November 19, 1982 in order to permit Petitioner
an opportunity to present statistical evidence relating to
his claim that his death penalty has been arbitrarily and
capriciously imposed in a racially discriminatory fashion.
On motion of Petitioner, said hearing was continued to
December 8, 1982.
Although Respondent takes the position that statistical
data such as that which Petitioner seeks to introduce is
irrelevant when, as in this case, the record shows that there
has been no intentional or purposeful discrimination against
Petitioner; nevertheless, since this Court has determined
that an evidentiary hearing is necessary on this issue, it
is imperative that Respondent be provided an opportunity to
fully investigate the underlying basis for the statistical
conclusions which Petitioner has tendered by way of the
affidavit of Professor David Baldus and supporting studies.
As this Court may surmise from reviewing Dr. Baldus'
affidavit and the June, 1982 preliminary finding, the studies
purport to be quite extensive and detailed. The Georgia
Procedural Reform Study allegedly involves a review of
602 capital offenders while the Georgia Charging and Sentencing
Study involves a sample of 1,071 offenders who were arrested
and charged with murder or involuntary manslaughter between
1973 and 1979 and who were later convicted of murder or
voluntary manslaughter by plea of guilty or at trial. In
regard to the first study, it appears that the underlying
data was supplied through the use of an extensive thirty
page questionnaire for each of the offenders. The second
study apparently utilized a forty-seven page questionnaire
addressing 595 variables per offender.
A review of the information which has been provided
to Respondent at this point shows that it consists only
of an affidavit from Professor Baldus, his curriculum
vitae, sample, blank copies of the two questionnaires
used in each of the studies and the June, 1982 preliminary
findings which were made on said studies. Also, a review of the
preliminary findings shows that they are far from exhaustive,
and the studies appear to have involved discretionary aggregate
grouping of aggravating and mitigating factors which may effect
the reliability of the ultimate conclusions drawn from the
studies. However, without a detailed examination of the
underlying raw data, and the methodology actually utilized
in the studies, Respondent can only speculate as to the
studies accuracy or inaccuracy. Moreover, without discovery
which would permit an examination of the underlying raw data
and methodology, Respondent's ability to cross-examine Petitioner's
expert witness or witnesses, and Respondent's ability to
present his own analysis of Petitioner's statistical data will
be very severely limited.
Of course, under Rule 6 of the rules governing 28 U.S.C.
§ 2254 habeas corpus cases w district judge may grant leave for
discovery in the exercise of his discretion and for good cause
shown. Respondent submits that it is precisely the type of
situation which exists in the instant case that justifies the granting
of discovery. It is patently unfair for one party to present
statistical evidence to this Court when the other party
does not have an adequate opportunity to examine the underlying
basis supporting conclusions drawn from the statistical evidence
and the precise methodology utilized in drawing said conclusions.
Additionally, in regard to Respondent's motion for a
continuance, it does not appear that Petitioner will be
prejudiced by said continuance in light of the representations
made in Professor Baldus' affidavit and in the June, 1982
preliminary report that the second study has not yet been
completed. If said study has not yet been completed,
Petitioner will have an opportunity to use the discovery period
to finish this project. If the first and second studies have
both been completed, Respondent should be given an opportunity
to analyze any final results in addition to the underlying
raw data and analysis methodology. Due to the apparent, volumnious
amount of information which must be analyzed, Respondent
submits that a reasonable period of 60 days for discovery
is justified.
For all of the aforesaid reasons,
CONCLUSION
requests that this Court grant Respondent's motion for
discovery and for a continuance.
Please serve:
NICHOLAS G. DUMICH
132 State Judicial Bldg.
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3499
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
ROBERT S. STUBBS II
Executive Assistant
Attorney General
Respondent respectfully
ION O. GORDON
hess Assistant
PY General
Py a HILL AY
Senio Assistant
NICHOLAS G. DUMICH
Assistant Attorney General
CERTIFICATE OF SERVICE
This is to certify that I have this day served a
copy of the foregoing Motion and Brief upon:
Mr. Robert H. Stroup
Attorney at Law
1515 Healey Building
Atlanta, Georgia 30303
Mr. John Charles Boger
Attorney at Law
10 Columbus Circle
New York, New York 10019
by depositing a copy in the United States mail, properly
addressed with sufficient postage prepaid.
eX) net
This | BY day of November, 1982.
Libsbyo € Ld
NICHOLAS G. DUMICH
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
petitioner, CIVIL ACTION NO. C81-2434A
VS.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITIONER'S MOTION TO RECONSIDER PORTIONS OF
OCTOBER 8, 1982 ORDER
Comes now the petitioner, WARREN McCLESK:Y, and moves the
Conrt to reconsider that portion of its Ord
1982, which denied petitioner an evidentiary hearing as to the
ineffective assistance of counsel claim in light of the proffered
affidavits of Reverend Robert Johnson and Gwendolyn Sharp. In
support of this motion, petitioner attaches the accompanying
affidavit and memorandum of law.
Cott 3. Soret,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
ATTORNEY FOR PETITIONER
NIL A AON 545s I ASMA AARON SAS
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION NO. C81-2434A
VS.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
PETITIONER'S MEMORANDUM IN SUPPORT OF MOTION TO
RECONSIDER
INTRODUCTION.
In the Court's order filed October 8, 1982, the Court
ordered petitioner to respond within fifteen days with respect to
the inclusion within the records of certain documents related to
Offie Gene Evans. Attached with this motion is counsel's
affidavit in response to that portion of the Court's order.
Petitioner has also filed a motion to reconsider that portion of
the Court's order relating to petitioner's request for an
evidentiary hearing on the ineffective assistance of counsel
claim, in light of the proffered affidavits of Reverend Robert
Johnson and Gwendolyn Sharp. In support of that motion, peti-
tioner files this memorandum of law, with accompanying affidavit.
I. UNDER STANDARDS OF TOWNSEND V. SAIN AND
THE RULES GOVERNING §2254 PROCEEDINGS,
AN EVIDENTIARY HEARING IS APPROPRIATE.
Petitioner submits that the record shows at this point that
certain material facts were not developed at the state habeas
hearing (Counsel's Affidavit 4411-13). This is particularly as
it relates to the availability to trial counsel of alternate
sources of witnesses which were left untapped by trial counsel.
Under the standards of Townsend v. Sain, 372 U. S. 293
(1963) (which standards are incorporated within the Post Convic-
tion Proceeding Rules, Rules 7 & 8), petitioner has shown that
material facts were not developed. No standard of "due dili-
gence" as applied by the Court is incorporated within those
rules, and should not be applied. As the Advisory Committee
Notes to Rule 8 state:
"The appropriate standard* * *is this:
Where the facts are in dispute, the
general court in habeas corpus must
hold an evidentiary hearing if
the habeas applicant did not receive
a full and fair evidentiary hearing in
a state court, either at the time of the
trial or in a collateral proceeding."
In this case, certain facts, now material under the standard
enunciated in Washington v. Strickland, 673 F. 2d 879, rehearing
en banc granted, 679 PF. 24 23 (llth Cir. 1982), were not de-
veloped at the state habeas hearing. Because they were not
developed, a hearing should be held on this issue.
Although petitioner does not concede that a "due dill igence”
standard is applicable on this question, nonetheless, petitioner
believes that due diligence was exercised in preparation for the
state habeas Rearing. Petitioner's counsel was taken by sur-
prise by the testimony of trial counsel, the state habeas hear-
ing lasted only one day, and preparation time for the state
habeas hearing, given the large number of issues raised, was
minimal.
For these reasons, the petitioner moves that the Court
reconsider its ruling with respect to the evidentiary hearing
for the ineffective assistance of counsel claim based upon the
1/
Affidavits of Reverend Johnson and Gwendolyn Sharp.
Respectfully submitted,
Bolen X. Soup
ROBERT H. STROUP f
1515 Healey Building
Atlanta, Georgia 30303
ATTORNEY FOR PETITIONER
1/
“Petitioner submits that, as a practical matter, a hearing on
these issues is even more appropriate, in light of the Court's
determination that an evidentiary hearing on other issues should
be held.
by.
.
.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
VS.
NO. C81-2434A
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
AFFIDAVIT OF ROBERT H. STROUP
STATE OF GEORGIA)
)ss:
COUNTY OF FULTON)
Personally appeared before the undersigned officer,
duly authorized by law to administer oaths, ROBERT H. STROUP,
who after being duly SOLA deposed and says as follows:
l. My name is Robert H. Stroup. I am more than
eighteen years of age, and am under no legal disability of any
kind. This affidavit is given in response to the Court's order
filed on October 8, 1982, and more particularly, to the Court's
rulings at p. 3 of the order regarding certain materials previous-
ly submitted to the Court as the basis for an evidentiary hearing,
or in the alternative, to be made part of the record pursuant to
Rule 7(b), Rules Governing Section 2254 Habeas Proceedings.
2. Without in any way conceding that a "due dilligence"
standard applies to the admissibility of the evidence which peti-
tioner has sought to have admitted pursuant to Rule 7(b),
petitioner's counsel shows the following reasons why the Certifi-
cate of Record, and related documents to Offie Evans (attached to
counsel's 6/18/82 affidavit as Exhibits "D" and "E") could not
reasonably have been available for the state habeas court's
review.
3. Petitioner is an indigent, and counsel has represented
him without payment of fees or costs. Furthermore, in the state
habeas proceeding, petitioner proceeded in forma pauperis [as
herein], without any court-ordered provisions for funds.
4. Prior to the state habeas corpus hearing, the
possible bias of Offie Gene Evans had not been indicated by his
testimony given at the State Court trial (Tr. Trans. 868).
5. Nonetheless, petitioner's counsel sought to interview
Offie Gene Evans in January, 1981, prior to the state habeas
corpus hearing. Petitioner's efforts to interview Evans were
frustrated by incorrect information supplied by the Georgia
Department of Offender Rehabilitation and Fulton County Jail. I
was informed on at least two different occasions by the Department
of Offender Rehabilitation that Evans was incarcerated at the
Fulton County Jail. However, Fulton County Jail personnel at the
same time repeatedly denied that Evans was there. My efforts to
reach Evans during the critical three-week period between the
filing of the state habeas petition and the state habeas hearing
were frustrated for at. least one week to 10 days because of the
mis-information supplied by these State and County agencies.
6. I learned finally that Evans was within the
jurisdiction of Fulton County Jail personnel, but was housed at
the East Point Jail under some form of protective custody.
7. Shortly after I learned this information, and before
I could interview Evans, he was transferred to Jackson and I was
then unable to interview him prior to the State habeas hearing.
8. It was only at the State habeas corpus hearing that
evidence came to light regarding Evans's understanding with
Atlanta Police personnel regarding a potential federal prosecution
for escape. The evidence which petitioner seeks to have the
court consider is evidence discovered by petitioner's counsel
after this evidence came to light. I believe I exercised due
diligence in seeking to interview Evans prior to the hearing; if
I had been able to do so perhaps I would then have been in a
position to seek out the documents which petitioner has discover-
ed through federal habeas discovery.
DS 4 GC A EAC YS YS MLR AEM
9. The Court's order filed October 8, 1982, also denies
petitioner's request for a hearing on the ineffective assistance
of counsel claim in light of the affidavits of Reverend Robert
L. Johnson and Ms. Gwendolyn Sharp. The Court also denied peti-
tioner's request in the alternative that the affidavits be made
a part of the record. Because the order is unclear whether the
denial is based upon their cumulative nature, or independently
because of some lack of due diligence on counsel's WE
hereby seeks to explain the circumstances surroundiiig those two
affidavits.
10. At the state habeas hearing, petitioner's sister, Betty
Myers, testified that John Turner, trial counsel for petitioner,
- had never asked her for names of persons who could testify at
the sentencing phase (Habeas Tr. 136-137). She testified further
that present counsel was the first person to ask her for the
names of such persons (Habeas Tr. 137), and that she had had no
difficulty supplying names of persons to present counsel (Habeas
Tr..:138~39),
11. Only when petitioner's former counsel unexpectedly
asserted at trial that he had asked Betty Myers for such names
(Habeas Tr. 80), and the state habeas court credited that testi-
mony despite Betty Myers' testimony, did the need to show that
readily-available alternative sources of potential witnesses
existed and were unexplored by trial counsel. Both Reverend
Johnson and Gwendolyn Sharp were independent sources of informa-
tion known to Turner at the time of his representation of peti-
tioner.
12. Moreover, under the apparent standards of this Circuit,
enunciated in Washington v. Strickland, 673 F. 2d 879, petition
1/
Under §2254(d), petitioner submits that he has shown that the
Court should hold a hearing because the material facts were not
fully developed. Townsend v. Sain, 372 U. S. 293, 312 (1963).
Section 2254 imposes no "due diligence" requirement, although
in this case petitioner's counsel submits that he did act with
diligence.
iy AELALE PN HNN 30 0 A A AOA 4 i iN in i 0
for rehearing'en banc . granted, 672 FP." 24 23 (llth Cir., May 14,
1982), it now appears that trial counsel's obligation extends
beyond the minimal efforts of trial counsel even if his testimony
is credited. This is a clarification and amplification of law not
available at the time of the state habeas corpus hearing. It is
to show that independent sources of "character" witnesses existed
[aside from the petitioner's sister] that petitioner has offered
the Affidavits of Reverend Johnson and Gwendolyn Sharp.
13. Their affidavits are not merely cumulative, to the
extent that they show independent sources known directly by
Turner and untapped by him.
l4. In light of this information, the petitioner requests
that Exhibits "D" and "E" be made a vart of the record, and that
the Court reconsider its decision with respect to the testimony of
Reverend Johnson and Gwendolyn Sharp.
> sb
This CIl% day of October, 1982.
Jesboo cf Ni. Fey [L. S.]
ROBERT H. STROUP /
Subscribed and sworn to before me,
this 227 day of October, 1982.
os / He
NOTARY PUBLIC
y\ ( 3 ua
Nt Nota y Public, Georgia, State a* Large
) : he Cie ssion Expiras lune c 19 1984
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of
the within and foregoing pleading upon:
Nicholas G. Dumich, Esg.
Assistant Attorney General
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
counsel of record for Respondent, by depositing a copy of same
in the United States Mail, adequate postage affixed thereto.
This 21st day of October, 1982.
Jeter). Rr op
ROBERT H. STROYP
CERTIFICATE OF RECORD
j_ barbara Ann Lathers hereby certify and attest that T am the
ADMINISTRATIVE SYSTEMS MANAGER
of the Southeast Regional Office jocatedat Atlanta, Georgia .
’
and as such that I am the official custodian of the records of the said Institution whose official
name is Southeast Regional Office
and that the following and attached records are true and correct copies of records of said Insti-
tution pertaining to one:
Offie Gene Evans , Register No. 32016-133
and consisting of: KIXREOIEZIHHIKX XXX FXOEEKINH MARK XX XXX KHMKRWKEIK (1) Incident
Spe Report; (2) Notice of Discipline Committee Hearing; (3) Standard Escar
TE Report; and (4) Affidavit from Offie Gene Evans.
EL IN WITNESS WHEREOF, I have hereunto set my hand and seal at
this12th day of May A.D. 1982,
ten 2s Cs
Barbara Ann Lathers
Ae Custodian of Records
Administrative Systems Manager
Title
STATE OF GEORGIA
SS.
county oF. ZULToN
Subscribed and sworn to before me this 12thqay of May : 19 82
sh Sol i
LN 7 its oy
Notary Public, Georgia, Sty fies - soled dosibinimingd
My Commission Expires Jan {oud 3
RE ; Record Form 92 "EXHIBIT "D" : ) Original (White) - Requestor
rm . April, 1978 A ’
First Copy (Pink) - Central File
FP1-LOM-7-78-12,700 SETS 1486
i 1
Eo B ®: OF INSTITUTION
on (i wimwC ‘Atlanta 201
\ et PART I - INCIDENT REPORT 3 ’
2. NAME OF INMATE 3. REGISTER NUMBER 4. DATE OF INCIDENT [5. TIME
EVANS, Offie Gene 39016-133 6-23-78 6:00 PM
6. PLACE OF INCIDENT 7. ASSIGNMENT 8. QUARTERS
FCC Atlanta N/A FCC Atlanta
9. INCIDENT = as 10. CODE
Escape _— | 4 101
11. DESCRIPTION OF INCIDENT
On June 23, 1978, EVANS signed himself out of our facility at 5:00 AM for work, and
to return at 6:00 PM on the same date. Evans tailed TO Feturn as scheduled however:
All efforts to locate his whereabouts were unsuccessful. Subsequently, the local
FBI was notified and Evans was placed on Escape status.
Earl Lawson
a Case Manager
14. INCIDENT, REPORT DELIVERED TO ABOVE INMATE BY _ |15. DATE INCIDENT [16. TIME INCIDENT
a REPORT DELIVERED | REPORT DELIVERED
), (lado Meawgal ADA fat EPpy
é PART II - COMMITTEE ACTION
17. COMMENTS OF INMATE TO COMMITTEE REGARDING ABOVE INCIDENT
12. SIGNATURE OF REPORTI EMPLOYEE 13. NAME AND TITLE (PRINTED)
In absentia.
18. IT ISTH FINDING OF THE COMMITTEE THAT: (“X'" APPLICABLE BOX) :
iv OMMITTED YOU COMMITTED THE FOLLOWING PROHIBITED ACT: YOU DID NOT
THE OHIBITED COMMIT A
ACT AS [3 : s PROHIBITED
CHARGED ACT
19. COMMITTEE FINDINGS ARE BASED ON THE FOLLOWING INFORMATION
He committed the act as charged because he failed to return to the Center from sign-out
as scheduled.
nie
20. COMMITTEE ACTION )
, / Ih, :
Subject's SGT lof 119 days is to be forfeited, and upon apprehension, he is to be returned
- go
to a federal institution.
21. DATE OF ACTION l-2 IY
EMBER MEMBER 1
BP-15-83a FOR CENTRAL FILE RECORD FPI-LoM-2.13.77
9.72
22. DATE
; “iv immer PART INVESTIGATION I h.izn
23. INMATE STATEMENT AND ATTITUDE i
In absentia wi it
24. OTHER FACTS ABOUT THE INCIDENT
There are no other pertinent facts about this incident.
Ty 4 7 +f wi / > GPE 7 3 wir a : ity 4 WY \
Ean nso] : :
\,, = | 2 ae
o \ pa
25. INVESTIGATOR'S COMMENTS AND CONCLUSIONS
I conclude that this man did commit this act as charged as he failed to return
26. ACTION TAKEN
Same as No. .20.
L
:
C e S bid 0 x TLE ; TINY : ; : SE . SEER 1 ; Fae BU) .
A TLAR Ta,
LESLANO LHP PRLUT ION 3107 od
SERIES VARNEY TIA DC MUR Yel TM WV TREN Ae Wt yp 1% a <i
TO: _OFFIE GENE EVANS
. —e Bt AME FE KI ASSES. “WTC AT PL i Pl MERIT 1 \. sSNA
ALLEGED VIQLATTS TON: USE OF DRUGS & ESCAPE
TL A ARID SD 0 I 15.3 ON)
DATE OF OFPENSH: 6/10/78 & 6/23/78 _ . Colds No, 203 & 101
You" are being referred to the Institution Disciplinary Commitica
for the above chargn
The heavince will be Bald one Wednesday 9/6/78at 9:00 AM?™
at the tol.owing locaticn:_ ASSOCIATE WARDEN'S BREY BUTLDING
RE Ilr MT reel IRAN I CARATS 4 SEN ES AR RAE A Tare
You are entitied. to ha
the hearing, Please
. FIA oe
=~ ’ staff Yap Yagsancaiiive, PS TO ?
Qo ct
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s
I oh n :
If so, the ztafl reprassnictive's uowe las tk Grou & sS nd
: LT, Geoure te climeor- ‘ne Centar he would pied er. Thos Tol R
You will alse have the richt oo cai’ the hooring and
to present docunanteary ev saneiliing
your witnesses will not Nanos of
witnesses vou wish to ce he Iiy azate
what each proposed witne
AP ENT LS aA a
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AMT RA ALRANT Yd 8 ESB MAB AI BASE CRA i the BRD 4170 Wy (eS. SM, LV eB TH vo LM OI OE A BU Ady, AL CRN Lt ANN AN AD CY OT LP Pm WI SC. rt Anonym cues w—— . NAME « ) an ioxRtiiy ta “84% 3 % « fenhal ly LELLILY A I TA? INT, SLAIN Br BL 5” He GET a ae a I al, ¥ wer ue,
no AL TEL SALT AS TR A A SEL TN PRUE. IP NOMI CTY SOM TO TUES. TUALY TORE 1 Ne HMA ETE 5 Ha nM 7A Wr BE TT AI. Bab Ae = Gi
GFs Sraan |
SN LWA —rdPEEIES QOFFIE GENE EVANS
rt PP SE BU TY Si ASAE TATE
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Form Nc. J-0-
Stock lv. P5-2.8D fred 73}
T
r
T
EVANS, Offie Gene Ee Number © 38016-133 Late 06/26/78
Oric. 6 yrs. Reg. Adult & 5 yrs. Reg. Adult (Concurrent) ; :
&§ P.V. 1,022 daysprfense Forge & Uiter U.S.Treas, Ck., Custody Clzzs. Ccmmunitu
Poss. Stolen Mail and Parole Violator
yment (not work relezse) ( ); work Release ( ); Study y Employ
Feigzse ( ): Otker Conmunity Activity 0X.
Xurrer of Irmates Involved: 1 Time and Late of Zscepe: 6:00 p.m, —- 06/23/7¢
Burervising Imrloypee: (if none, stzte nore): None - was on work pass from the Center.
Ferson First Reporting Escape: Earl Lawson, Case Manacer Time Reported: 11:30 p.m, = GE,33
Bureau Official Notified: Loretta Blackmon, Corr. Svcslzte: 06/26/78 Time: 9:15 a.m.
If Aprrehended, Date: ie Time:
Circunstances Surrounding Escape: Evans signed out of the Center at 5:00 a.m. on 06/23/78 and
was scheduled to return at 6:00 p.m. on the same date. His destination was listed as "Work".
He failed to return as scheduled, and was subseguently placed on Escape Status at 11:30 p.m.
‘that same night and the FBI was contacted at that time. This was done after attempts were mace
to located him in the community, which were all to no avail. 3
Evaluetion: (Staff Aneluysis) Evans has a history of drug abuse, and this more than likely con-
tributed to his absconding from our facility. On the day just previous to his absconding, we
had received notification from Fairfield Medical Labs that a urine specimen collected from Evans
on 06/19/78 had been returned as being Positive for Opium and Quinine. The matter had bean
discussed with him upon his return to the Center on 06/22/78, and he had been placed on restric-
tion with an incident report being prepared relative to this incident. The staff is of the
opinion that this was a contributing factor in his not returning to the Center as schedulec.
Chances in Facilities or Procedures Contemplated to Prevent Similar Occurrences:
None anticipated.
Other Fertinent Information:
None
oN
ro BR 06/26/78 | yy np ods)
rate Feport Submitter: /26/ Licnarture: 7 SN ar 0 Ly
PATE ESCAPE REPORT, IN DUPLICATE, SHOULD BEL SUEMITIED FOB EBACE INMATE INVOLVES)
AFT 1DAVIIT
On August 31, 1978, Offie Gene Evans was informed by his assigned
Case Manager that the following action was taken in absentia by the
Institution Disciplinary Committee at the Federal Community Center,
Atlanta, Georgia on June 27, 1978 as the result of your escaping from
that facility on June 23, 1978. The action taken by the committee in
response to the Incident Report charging Escape, dated June 23, 1978,
was as follows: forfeit 119 days Statutory Good .Time and upon apprehension,
to be returned to a federal institution. |
Mr. Evans was also advised of his rights to have the charges brought
before the Institution Disciplinary Committee at this facility where he
was returned to custody. He was informed of the.actions taken ac—= result
of his escape by the Institution Disciplinary Committee at our facility
and further advised that the IDC would be able to rehear his case at his
request which may result in the dismissal or modification of the charges
and resulting action. It was early Sipisindd to Mr. Evans that the
sanctions previously imposed by the aforementioned committee could not be
increased if he opted for a new hearing.
I, Offie Gene Evans, hereby @&Z===) (choose to exercise) the afore-
mentioned rights as advised above and verbally reported to me by my tase
Manager, Mr. D. K. Adams.
{an
@¥fie Gene Evans
Reg. No.: 39016-133
2/) August 31, 1978
D. K. Adams, Case Manager “ Date
AANA
|
Branones
pean
CERTIFICATE OF RECORD
I Barbara Ann Lathers
, hereby certify and attest that I am the
ADMINISTRATIVE SYSTEMS MANAGER
Bureau of Prisons/
of the
Southeast Regional Officeioanteqat Atlanta, Georgia
and as such that I am the official custodian of the records of the said Institution whose official
name is Southeast Regional Office/Bureau of Prisons
and that the following and attached records are true and correct copies of records of said Insti-
tution pertaining to one
Offie Gene EVANS
, Register No, 39016-133
ag and consisting of: GX Bomex aX X XE X EK HIgEnpXIK Xaad x X X (84 XC fre nt
Institution Discipline Committee Report dated September 6
y 1678
IN WITNESS WHEREOF, I have hereunto set my hand and seal at
this 13thgay of _ May AD. 1082
ARBARA ANN LATHERS
i Custodian of Records
ADMINISTRATIVE SYSTEMS MANAGER
Title
STATE OF GEORGIA
SS.
COUNTY OF _ FULTON
Subscribed and sworn to before me this 13thday of
May , 19.82
Pllngisir pr ITE
\ ZL Signature—al—Officer-Anhortzed
Fo—AdmmuTer-Odths (18-U.S.C-4064)
Notary Public, Georgia, State at Large
My Commission Expires Jan, 23, 1984
3
Record Form 92
April, 1978
e EXHIBIT "E"
FPI-LOM-7-78.12,700 SETS 1486
Original (White) - Requestor
First Copy (Pink) - Central File
i ry Attachment D
pSeenin J dia 2 100.5D
THSTITUTION DISCIPLINE COMMITTEE REPORT Vind i] iL A
Time: SEptemeer— 01570
Troe
NAME OF INMATE: EVANS, Offie REG. FO. _39016-133
The inmate has been advised of his rights before this Committee/ X / e copy of
advisement of Fights form is attached. .
This hearing is held to consider Te Incident Report(s) dated:
REHEARING ON REPORTS DATED 6/19/78 & 6/23/78.
The following persons appeared before the Committee:
Of fime Evans <tn
Summary of statements made and information presented to the Committea:
Inmate admits the charge(s): / _ / Yés / / No.
Evans had asked that Mr. Geouge represent him and Mr. -Geouge declined.
6/19/78: On this .charge of using drugs Evans admits he did sniff some
cocalin.
6/23/78 On the escape charge he pleaded guilty. States he went to
or Florida. He related to- the committee that he was part of an
" Z5 investigation dealing with drugs. States he was doing this on his own.
States officials were aware of his activities and he was trying to get
drug officials a lead. Says. he would be well paid for his part.
STATEMENT OF FACT:
The Cormittee finds that:
l= / The act was committed as charged. / Kc prohibited act was commlitiedf
Pat (If this is the finding, this |
/ / The following pct was committed: report and all related reports fF
be destroyed.)
Zction Taken: committee confirms the previous findings of forfeiture of
119 days BCT. Return to USP Atlante. 4.,..4.u6 Administrative Detention.
Reason for Action Teken:
Evans admitted being guilty of both charges held in absentia.
Lx / The ings has been advised of the findings and orders of this Committee.
“been advised of his right to appzal this action within 30 dey}
ecutive Officer. / x4 A copy of this report AD
+ we
: Aref 1 Eo NE 72,
J TH. Ep R N..H. GOP =. G. INGER
(Cc a ATRMA IR (MEMBER) TMDER )
1f.om,
wo nmip seed peste se TH Nanas es ® AX AnFE vA TAT any
0 ( °o KE
FELONY SENTENCE
Charge ~17} nd
Fulton Superior Court
Term, wel
vo. [3-8 105
THE STATE (Plea) (Verdict) of Guilty
S.
WHERE Mls It is oy and adjudged by the Court that the Defendant,
lenaocHee Adame
be taken from the Bar of this Court to the Jail of Fulton County, and be there safely kept until
a sufficient guard is sent for him from the Georgia Penitentiary, and be then delivered to, and be
by said guard taken to said Penitentiary, or to such other place as the Director of Corrections
may direct, where he, the said defendant be confined at labor for the full term of
sears to be computed according to law.
The costs of these proceedings are taxed against the defendant.
Arr . Tho. S57
Judge S. C.\. J. Af Presiding.
District Attorney
FILED IN THIS OFFICE. THIS
THE Se E8158)
Deputy Clerk, S.C., AC,
Coe ceramic
( id 3 0 EXHIBIT "F"
.:STATE OF GEORGIA, COUNTY OF FULTON.
IN THE superiod@burT OF SAID COUNTY.
THE GRAND JURORS selected, chosen and sworn for the County of Fulton, to-wit:
MURRAY D. BRADLEY,
H. T. SANDERS,
EMMA L. HARRIS,
JR: ,
JR. AsSt.
Secretary
ETHEL B. ANDRUS
MARY M. BALLARD
HENRY L. BLACKBURN
JOLIETTE BOATWRIGHT
EE Sabana a cd
10. JUANITA BROWN
11. BERTHA G. BURNETT
12. STEVEN B. HARVEY
13. RICHARD H. LOVELACE
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EDGAR RUSSELL WILLIAMSON, Asst. Secty.
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HELEN REGENSTEIN
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JULIE ROSS
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PATRICIA C. VEAL
ROY W. WALLACE, JK.
LUCRETIA G. WEIDMAN
CLARENCE D. YOUNG
MARY IL. BARTENFELD (lst Alt.)
DOROTHY BANKS (2nd Alt.)
in the name and behalf of the citizens of Georgia, charge and accuse
GLENN LEE ADAMS and OTIS LEE MILLER
did unlawfully and with malice aforethought, cause the death of James
E. Richardson, Jr., by shooting him with a Distol; =
contrary to the laws of said State, the good order, peace and dignity thereof.
LEWIS R. SLATON, District Attorney
Special Presentment.
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WITNESSES:
Henri Ann Carter
Constance Clay
Virginia Ann Dukes
Helen Turner
Randy Brown
Waddell Carter
Thomas Clem
. Harold Holley
® Steven Solomon
Vester Anthony
Stacy Culverson
Antonio Dubois
Seretha Holmes
Charles Gary Jackson
Annie Inez Lester
Linda Davis
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J R Freeman
G W Johnson
Jd J Jackson
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION FILE
ve. NO. C81-2434A
WALTER D. ZANT, Warden.
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITIONER'S MOTION TO ALTER OR AMEND
JUDGMENT ENTERED JUNE 10, 1982.
Comes now the petitioner, WARREN McCLESKEY, and moves the
Court to enter an order altering or amending the judgment of
June 10, 1982, so as to set the judgment aside. Petitioner seeks
reconsideration of the Court's order and judgment both with
respect to exhaustion as well as petitioner's entitlement to an
evidentiary hearing. In support of his motion, petitioner at-
taches the accompanying memorandum of law and affidavits in
support.
Respectfully submitted,
Pliert }. Ragen
ROBERY H. STROUP [f
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
Suite 2030
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
P—034—C
oe he
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
VS. : CIVIL ACTION
NO. C81-2434A
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
ORDER
This action is before the court on petitioner's motion
to alter or amend or to reconsider the court's order of
June 9, 1982 denying petitioner's motion for an evidentiary
hearing with respect to a number of the issues in this
action and dismissing the petition without prejudice for
failure to exhaust with respect to one of the ineffective
assistance of counsel claims. The Attorney General of the
State of Georgia did not file a brief in response to petition-
er's motion to alter or amend. The court will address the
grounds presented by his motion seriatim.
I. Petitioner asserts that the court's dismissal of
this petition on the ground that his claim of ineffective
assistance of counsel based upon trial counsel's failure to
examine the judge's sentencing report was not exhausted was
based on a limited state habeas corpus record. The peti-
tioner shows the court that petitioner's post-trial brief
submitted to the Superior Court of Butts County in support
of his state habeas corpus action presented the factual
grounds for this issue in the context of his claim of in-
effective assistance of counsel. Petitioner seeks to have
this brief made a part of the record in this court pursuant
to Rule 7(b) of the Rules Governing Section 2254 Cases in
the District Courts. The brief is ADMITTED. It appearing
P—034-C
0 eo
that this claim was presented to the state habeas court and
that the state habeas court also had before it a copy of the
trial judge's sentencing report, the court finds that peti-
tioner has exhausted this claim.
A review of the order of the state habeas court shows
that petitioner's claim of ineffective assistance of counsel
based on failure to review the trial judge's sentencing
report was not expressly resolved by the state habeas court.
Nor is the court able to find that the state court impliedly
found the material facts eb this claim. Thetefofe., an
evidentiary hearing on this issue is warranted. § 2254(d)(1l);
Townsend ve. Sain, 372 U.8. 293, 313 (19632). Accordingly,
petitioner's motion to alter or amend is GRANTED as to this
issue.
The court notes that in its order of June 9 it charac-
terized petitioner's contention (k) that counsel failed to
respond to the trial court's request that he review the
court's sentencing report as a failure to review the pre-
sentence report of the court. Properly characterized as a
failure to review the sentencing report of the trial judge,
this contention could still arise to a constitutional claim.
II. Petitioner seeks reconsideration of the court's
order denying him an evidentiary hearing as to his claim of
ineffective assistance of counsel for counsel's failure to
develop testimony regarding petitioner's life history which
would have been considered by the jury in mitigation of
guilt during the sentencing phase. Petitioner has submitted
two affidavits of persons who state that they would have
either supplied the names of persons whom trial counsel
could contact regarding petitioner's background or testified
on petitioner's behalf if requested to do so.
‘
From the face of these affidavits it does not appear
that these affidavits are more than merely cumulative or why
they could not have been obtained for presentation to the
state habeas court in the exercise of due diligence. The
affidavits of Reverend Johnson and of Gwendolyn Sharp are
the affidavits of persons known to petitioner whose names
could have been obtained in the exercise of due diligence.
Accordingly, petitioner's motion for reconsideration of the
court's denial of an evidentiary hearing as to this issue is
DENIED and petitioner's alternative request that these affi-
davits be made part of the record pursuant to Rule 7(b) is
DENIED.
Petitioner has also presented "newly found" evidence
relating to the Offie Evans claim. From the face of the
proffer presented, the court cannot determine that this
evidence could not have been discovered earlier. Accord-
ingly, petitioner's alternative motion to have the Certi-
ficate of Record, the Incident Report, Notice of Discipline
Committee Hearing, Standard Escape Report, Affidavit from |
Offie Gene Evans, and Institution Discipline Committee Report
dated September 6, 1978 made a part of the record pursuant
to Rule 7(b) is GRANTED on the condition that counsel show,
within fifteen (15) days of the filing date of this order,
why this evidence could not have been available for the
state habeas judge's review.
III. Petitioner has listed the material facts which he
understands to have been expressly or impliedly found by the
state habeas court and iH brtsor asks that the court adopt
these statements of fact. This request is based on the
court's finding in the order of June 9 that as to peti-
tioner's ineffective assistance Of counsel claim,. most of
the findings of fact made by the S6ate ALEEY court were
express but that for those issues where express findings
were not made, the state court impliedly found the material
-3- °-034—C
P—034—C
facts.
This petition is not at this time being considered on
the merits, and the court declines to make any findings of
fact at this time or to reconsider its order in the manner
requested by the petitioner. Both counsel and the court
have the state record available for the purpose of analyzing
the findings of the state court. The express findings of
the state court speak for themselves, and as to the implied
findings of the state court, this court will await deter-
mination on the merits of this petition. Petitioner's
motion for reconsideration on this ground is DENIED.
IV. Petitioner asks that the court reconsider its
holding that no evidentiary hearing is needed on his claim
that the death penalty is imposed in a racially discrim-
inatory fashion. Petitioner has presented new evidence in
the form of an affidavit regarding recently completed stud-
ies on the imposition of the death penalty.
In his petition McCleskey has asserted that the dea
penalty is imposed in violation of the Eighth Amendment and
of the due process and equal protection clauses of the Four-
teenth Amendment. Although it appears to the court that
petitioner's Eighth Amendment argument has been rejected by
this circuit in Spinkellink vs. Wainwright, 578 F.2d 582,
612-14 (5th Cir. 1978), petitioner's Fourteenth Amendment
claim may be appropriate for consideration in the context of
statistical evidence which the petitioner proposes to pre-
sent. However, petitioner's contention is not sufficiently
articulated for the court to be certain of its premise. It
appears that petitioner's premise is that any defendant,
irrespective of race, has standing to challenge the imposi-
tion of the death penalty on Fourteenth Amendment grounds
P—034—C
J ao
and may challenge such a sentence if it is imposed because
of the consideration of an irrelevant or perhaps imper-
missible detail of the crime (race of the victim). If this
is petitioner's contention, it is not clear whether he is
asserting that the violation of equal protection alleged may
be shown by pattern and practice evidence or whether it must
be proven on a case-by-case basis.
It appears that the study presented contains new evi-
dence sufficient to require a hearing before this court.
Accordingly, it is ORDERED that the parties appear for a
hearing on this issue on Friday, November 19, 1982, at 9:30
a.m.
In sum, petitioner's motion to alter or amend judgment
is GRANTED IN PART and DENIED IN PART. The parties are
ORDERED to appear before this court for an evidentiary hear-
ing on the ineffective assistance of counsel issue and on
petitioner's new evidence regarding discriminatory imposi-
-
IT IS SO ORDERED this /" “day of September, 1982.
Yan DL oe
. / OWEN FORRESTER
ore: STATES DISTRICT JUDGE
tion of the death penalty on a 18, 1882, at'9:30. st. m.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
CiVll ACTION FILE
NO. C81-2434A
Petitioner,
VS.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITONER'S SUPPLEMENT TO MOTION AND MEMORANDUM IN
SUPPORT OF MOTION TO ALTER OR AMEND.
Comes ne the Petitioner, WARREN McCLESKEY, and files the
accompanying affidavit of Dr. David C. AT The affidavit
has just become available to petitioner's counsel, and provides
a more detailed statement of the evidence which petitioner is
relying upon in seeking an evidentiary hearing on the "arbitrary
and capricious" claims. Petitioner asks that, on the basis of
this evidence, the Court schedule an evidentiary hearing on
those claims.
Respectfully submitted,
Rovers Forse $
ROBERT H. STROUP /
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
XY,
"The affidavit was prepared for use, initially, in a habeas pro-
ceeding filed on behalf of another petitioner.
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the
within and foregoing pleading upon:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
counsel of record for Respondent, by depositing a copy of same
in the United States Mail, adequate postage affixed thereto.
This 25th day of June, 1982.
Bote 3. Tring,
ROBERT H. STROUP
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
va. NO. C81-2434A
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
ALTER OR AMFND OR RECONSIDER. ~~" °
INTRODUCTION.
On June 10, 1982, the Court entered an order denying peti-
tioner's motion for an evidentiary hearing with respect to a
number of issues in this case, and dismissed, without prejudice,
the petition for failure to exhaust with respect to one of the
ineffective assistance of counsel claims. Petitioner has filed
a motion to alter or amend the judgment, seeking reconsideration
of the Court's June 10, 1982 order. In support, petitioner files
this memorandum of authorities.
I. PETITIONER APPRISED THE STATE SYSTEM
OF FACTS AND LEGAL THEORY UPON WHICH
PETITIONER BASED HIS ASSERTION, THERE-
BY EXHAUSTING FOR PURPOSES OF GALTIERI.
The Court dismissed the instant petition noting that "so
far as the Court can ascertain" the ineffective assistance of
counsel claim based upon defense counsel's failure to examine the
judge's sentencing report "was not presented to the state court.”
(Order, at.p. 6.)
The Court's judgment in this regard was based upon a limited
state habeas corpus record. Most particularly, the Court did not
have before it at the time of its June 10, 1982 order a copy of
"petitioner's Post Trial Brief," submitted to the Superior Court
of Butts County in support of petitioner's state habeas corpus
action. (See Exhibit "A", attached to Stroup Affidavit which
accompanies this Brief.)
Petitoner seeks to have this State Court pleading made a
part of the record in this case, pursuant to Rule 7(b), Rules
Governing Section 2254 Cases in the District Courts. That brief,
at page 42, shows that the claim with regard to the trial coun-
sel's failure to review the trial judge's sentencing report was
submitted to the state habeas court:
n20/
— A further indication of trial counsel's
abdication of his role is reflected in the
trial judge's sentencing report (Supp'l. R.
7) . That report indicates that, although
the trial judge tried on repeated occasions
to have Turner review the sentencing report
to provide additional information for the
report which the trial judge lacked, Turner
failed to respond to the trial judge's
requests."
Furthermore, the state habeas court had before it the trial
judge's own comments indicating that trial counsel had failed to
review the report either for accuracy or to provide information
which the report called for but was "unknown" by the trial judge.
(Respondent's Exhibit #1, attached to Respondent's Answer and
Response in this action, "Supplemental Record, at 7.)
Petitioner submits that such is sufficient under the stan-
dards of Galtieri v. Wainwright, 582 F. 24 348, 353 (5th Cir.
1978 (en banc). The state court was apprised of the facts and
legal theory upon which the allegation was based, Therefore,
the Court should reconsider its dismissal, and reinstate the
petition.
IT. IN LIGHT OF ACCOMPANYING AFFIDAVITS,
THE COURT SHOULD GRANT AN EVIDENTIARY
HEARING IN LIGHT OF NEWLY-DISCOVERED
EVIDENCE.
The petitioner also seeks reconsideration of the District
Court's order denying petitioner an evidentiary hearing. In
support of his motion, petitioner attaches hereto a number of
affidavits which detail the newly found evidence relating to the
Offie Evans claim, ineffective assistance of counsel claims, and
the arbitrary and capricious claims. On the basis of this evi-
dence, petitioner requests that the Court reconsider its denial
1/
of an evidentiary hearing.
Affidavit of Reverend Johnson
Subsequent to the state habeas corpus hearing, counsel for
petitioner learned that petitioner's family was referred to John
Turner initially through Reverend Robert L. Johnson. Rev. John-
son is the minister of Zion Baptist Church in Marietta. At the
time that he referred petitioner's family to John Turner, Rev.
Johnson viewed John Turner as his lawyer (Johnson Affidavit,
13,4).
Reverend Johnson was a readily available source of potential
references which a reasonable, independent investigation of
sources of evidence for the sentencing phase of petitioner's
trial would have tapped. Washington v. Strickland, 673 F. 2d
879 (5th Cir. Unit B, 1982). As the affidavit of Reverend
Johnson makes clear, John Turner never spoke with him regarding
names of persons Turner could contact regarding McCleskey's back-
ground, family life or reputation in the community. Further,
Reverend Johnson's affidavit indicates that one of the persons
whose name he would most likely have given to John Turner was
Mrs. Emma Owens - one of the people whose affidavit was sub-
mitted to the state habeas court previously.
1/
In the alternative, petitioner seeks to have the affidavits
made a part of the record pursuant to Rul2 7(b), Rules Governing
2254 Cases, or that they be treated as offers of proof of testi-
mony which petitioner would expect to offer if the Court were to
hold an evidentiary hearing.
Petitioner submits that this newly-discovered evidence,
taken together with the Fifth Circuit's decision in Washington v.
Strickland, supra, is itself sufficient grounds for setting
aside petitioner's death sentence, and the Court should grant an
evidentiary hearing on this matter.
Affidavit of Gwendolyn Sharp
Petitioner's counsel has also discovered, subsequent to the
state habeas hearing, that petitioner's ex-wife, Mrs. Gwendolyn
Sharp, has substantial information regarding petitioner's past
history which could have been offered in mitigation. Mrs.
Sharp's affidavit shows that petitioner's childhood was not an
entirely happy one, and that his stepfather was cruel to his
mother. Her affidavit (and that of Myrtle Bates, already on file
with the Court) shows that he had a close relationship with his
daughter, and that the problems he encountered began after his
marriage to his high school sweetheart fell apart. (Affidavit of
Gwendolyn Sharp, attached.)
This newly-discovered evidence is evidence which could have
been offered to the jury during the sentencing phase in mitiga-
tion. . Furthermore, it is the kind of evidence which a reasonable,
independent investigation by defense counsel would have discover-
ed. Washington v. Strickland, supra. Surely it is not unreason-
able for defense counsel to have contacted petitioner's ex-wife
in preparation for the sentencing phase. Her affidavit makes
clear that she was not contacted, and that she would have been
willing to testify in 1978 if she had been contacted.
On the basis of this affidavit evidence, petitioner requests
that the Court reconsider its order of June 10, 1982, and grant
petitioner an evidentiary hearing with respect to the ineffective
assistance of counsel claim.
5
III. PETITIONER REQUESTS RECONSIDERATION
OF COURT'S DETERMINATION REGARDING
"IMPLIED" FINDINGS OF THE STATE
COURT WITH RESPECT TO INEFFECTIVE
: ASSISTANCE CLAIM. :
The Court also ruled that as to the ineffective
assistance of counsel claim, "for those issues where express
findings were not made, the state court impliedly found the
material facts." (Order, at p. 6.)
Petitioner understands the material facts expressly
or impliedly found by the state habeas court to include the
following:
1. That Turner failed to interview any of the Dixie
Furniture Store employees or witnesses to the robbery, and
failed to interview any of the other potential witnesses listed
by the State as potential witnesses.
2. That the testimony of witnesses, Oliver, Nelloms,
Tyson and Grier, as reflected in their statements contained with-
in the prosecutor's investigative file, would have provided
substantial support to the defendant's alternate theory that
three defendants were not in the rear of the store at the time of
the shooting. (See statements of Nelloms, Grier, Tyson and
Oliver, Exhibit A of Parker Deposition.) This is sO in light of
what the witnesses heard, regardless of what they were able to
see.
3. That counsel was taken by surprise by the testi-
mony of Offie Gene Evans and Manie Thomas. Both surprises could
have been avoided if trial counsel had interviewed witnesses.
4. Trial counsel did not inspect the prosecutor's
investigative file until October 5, 1978, just four days prior
+o trial.
5. That trial counsel had the suspicion that the
appearance of Fulton County Deputy Sheriff's names on the
witness list meant that they would testify regarding statements
made at the Fulton County Jail, but nonetheless trial counsel
interviewed none of those potential witnesses.
® »
6. Trial counsel made no search for sentencing phase
witnesses, or if he made any search whatsoever, it was limited
to an inquiry about availability of witnesses addressed to
petitioner's sister. No independent search for sentencing phase
witnesses occurred.
If these are not the facts which the Court understands
were impliedly or expressly found by the State habeas court,
then petitioner requests reconsideration of the denial of an
evidentiary hearing because of the state habeas court's failure
to resolve such factual issues.
IV. NEWLY-DISCOVERED EVIDENCE REGARDING
KEY PROSECUTION WITNESS OFFIE GENE
EVANS ALSO JUSTIFIES EVIDENTIARY
HEARING WITH RESPECT TO CLAIMS A AND P.
Petitioner has recently discovered, through information made
available by federal officials with the Bureau of Prisons, that
Offie Gene Evans had, prior to his cooperation with prosecution
officials in petitioner's case, cooperated with state officials
in at least one other investigation in exchange for favorable
treatment.
Attached as Exhibit " " to Stroup Affidavit is a copy of an
Institution Discipline Committee Report dated September 6, 1978.
That report quotes Office Gene Evans as stating as follows:
"On the escape charge he pleaded guilty.
States he went to Florida. He related
to the committee that he was part of an
investigation dealing with drugs. States
he was doing this on his own. States
officials were aware of his activities
and he was trying to get drug officials a
lead. Says he would be well paid for his
part.”
This evidence offers support to petitioner's claim that
Evans' cooperation with the prosecution in petitioner's case
was with the understanding that he would receive favorable
treatment - his cooperation with prosecutor's on a prior occasion
was with similar strings attached. (The record already shows
Evans' subsequent cooperation with State prosecutors. See
Exhibit "P-16" in the State Habeas Record. Those documents show
‘ »
that Evans testified subsequently in another murder case and
received favorable treatment by the State as a result).
«. This evidence also provides support to the ineffective
assistance of counsel claim. Had Turner made his own independent
investigation regarding prosecution witnesses, it is clear at
least with respect to Offie Gene Evans that information affecting
his credibility was available to be placed before the jury. Over
and above Evans' expectation that he be paid well for his part
in cooperation with State officials on the June drug investiga-
tion, Evans' history of drug abuse (Standard Escape Report,
Community Treatment Center, included within Exhibit "Dp".
attached to Stroup Affidavit) was information which could have
affected his credibility with the jury.
On the basis of this evidence as well, petitioner seeks
recongideration of the Court's order denying an evidentiary
hearing. Alternatively, if the Court denies petitioner's re-
quest for an evidentiary hearing on this point, he requests that
these documents be nade a part of the record, pursuant to Rule
7(b), Rules Governing §2254 Habeas Proceedings, or that they be
treated as an offer of proof as to what petitioner would offer
if the Court were to hold an evidentiary hearing.
V. NEWLY-DISCOVERED EVIDENCE REGARDING
THE ARBITRARY AND CAPRICIOUS NATURE
OF THE DEATH PENALTY JUSTIFIES HOLDING
AN EVIDENTIARY HEARING.
As counsel has detailed in the accompanying affidavit (see
Stroup Affidavit, 446-11), nearly completed studies by Dr. David
Baldus of the Syracruse University Law School provide substan-
tial new support for petitioner's claim that the death penalty
2/
is imposed in a racially discriminatory fashion.
Baldus' studies are the kind of detailed study which was
suggested as necessary by the Fifth Circuit in Smith v. Balkcom,
671 r, 24 858, 859, n. 33 (former 5th Cir. 1282). His studies
consider a myriad of factors which might legitimately explain
2/ g"
“For the sake of brevity, counsel has not repeated within the )
text of the brief itself the detailed description of Dr. Baldus
study which is contained within the affidavit.
-7-
’ 4
imposition or non-imposition of the death penalty, but neverthe-
less find that these factors do not explain the significant
racial disparities.
As soon as the studies are finalized, petitioner will be in
a position to submit more detailed information to the Court; how-
ever, counsel anticipates that if an evidentiary hearing were
held, Dr. Baldus' studies would be available.
On the basis of the foregoing, petitioner submits that the
Court should reconsider its denial of an evidentiary hearing on
the arbitrary and capricious claim, and set the matter down for
hearing.
CONCLUSION.
On the basis of the foregoing authority, petitioner requests
that the Court reconsider its order of June 10, 1982; that the
Court vacate said order; and that the Court schedule an eviden-
tiary hearing on the issues briefed herein.
Respectfully submitted,
Robert 3 Broew
ROBERT H. STROUP /
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of
the within and foregoing Motion and Memorandum upon:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
counsel of record for Respondent, by depositing a copy of same
in the United States Mail, first-class postage prepaid.
This 18th day of June, 1982.
[loo (ER Poecs
ROBERT H. STROUP
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN Mc CLESKEY
VS
WALTER ZANT, Warden,
Civil Action No. C81-2434A
Georgia Diagnostic and Classification Center
JUDGMENT
“ The Court, Honorable J. Owen Forrester
United States District Judge, by order of this date, having
dismissed the action without prejudice
JUDGMENT is hereby entered in favor of the respondent (s)
and against the petetioner(s)
Dated at Atlanta, Georgia, this 10th day of June ys: 39°82.
-
BEN H. CARTER, Clerk
Yi Tha V4
EO
FILED AND ENTERED .
IN CLERK'S OFFICE
June 10, 1982
Ben H. CARTER, (Clerk
By
Deputy Clgrk
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
FILED IN CLERK'S OFFICE
ATLANTA DIVISION 17.8.D.C.-Atlanta
MAY 07,1982
BEN H. efor Clerk
WARREN McCLESKEY,
Petitioner, By:
\ wt Deputy Cie:
CIVIL ACTION
NO. C81-2434»2
V.
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
CONSENT ORDER
Upon consent of the parties, the Court hereby authorizes
and orders the release of documents to counsel for petitioner
and respondent as herein specified:
By consent of counsel and for good cause shown, this Court
makes the following Order in accordance with the provisions of
Rule 26 (c) of the Federal Rules of Civil Procedure and the Privacy
ACt of 1974, 5" 0.8.C."§ 552 al(bj) {ily ’
It is hereby Ordered that certain records on Offie Gene
Evans relating to a 1978 escape charge maintained by the U.S.
Bureau of Prisons and by this Court's RE ll of the
U.S. Parole Commission), which are part of systems of records
keyed to Evans' name or other personal identifiers, which are to
be disclosed to counsel for the parties by the federal agencies’
shall be disclosed under the following protections:
1. Federal Prison System Records in the Custody and/or
Control of Clifton Floyd, Director of Community
Programs, Federal Prison System, Atlanta, Georaia.
The Federal Prison System, and Clifton Floyd, shall release
to counsel for both parties in this litigation true and legible
copies of all records in his possession Or control regarding charges
of escape filed against Offie Gene Evans in 1978, including, but
0
not limited to, Halfway House Records regarding the circumstances
surrounding his escape, the charges lodged against him, and the
reasons for the disposition of those charges. Such release shall
be subject to the terms specified in paragraph 4 herein.
»
.
2. Federal Prison System Records in the custody and/or
Control of Barbara Lathers, Regional Administrative
Services Manager, Federal Prison System, Atlanta,
Georgia.
The Federal Prison System, and Barbara Lathers, shall release
to counsel for both Parties in this action true and legible copies
of the Federal Prison System regarding Offie Gene Evans, including,
but not limited to, any writings with regard to the filing,
consideration and disposition of escape charges against Offie Gene
Evans in 1978, and any writings regarding the deliberation of any
administrative committee with respect to the disposition of those
‘charges, including the reasons for the disposition of those
charges. Such release shall be subject to the terms specified in
paragraph 4 herein.
:
3. Probation Office Records in the custody and/or control
of Fred Rogers, Probation Office, U.S. District Court
for the Northern District of Georgia.
The Probation Office, and Fred Rogers, supervised Offie Gene
Evans in 1978 as a parolee on behalf of the U.S. Parole Commission.
There are 3 documents in the Probation Office pertaining to the
1978 escape charge against Evans. One document, a letter dated
August 18, 1978, discussed the escape matter and another Wnvelated
matter. Fred Rogers shall produce copies of each of these three
documents, except that the second paragraph and the second sentence
of the third paragraph in the August 12, 1978, letter dealing with
a matter other than the escape charge shall be blacked out and thus
masked. Mr. Rogers shall produce these three documents to counsel
for the parties at his deposition, which shall be limited to the
1978 escape charge and shall be held in the United States Attorney's
Office, 1800 United States Courthouse, 75 Spring Street, S.W.,
Atlanta, Georgia 30335, on say 17 ndss. at:10:00 a.m.,; Or such |
other date during the week of May 10-14, 1982, as counsel for the
parties and the United States Attorney may agree upon. Such release
of documents and the transcript of Mr. Rogers' deposition shall be
subject to the terms specified in paragraph 4 herein.
4. The release of the documents specified in 49 1 & 2,
supra, shall be accompanied with an appropriate certificate of
authentication of such public record. The documents in 13 shall be
authenticated by Mr. Rogers in his deposition. Further, the Court
orders that copies of the documents or the transcript of Mr. Roger's
deposition shall not be released to persons other than parties to
this lawsuit, their counsel, and agents, and to the Cony, "if
appropriate. All copies of documents released shall be returned
to the United States Attorney upon the close of this litigation.
This Order is entered pursuant to 5 U.S.C. §552 a (by {iLy,
which permits release of such materials upon court order and
constitutes the extent to which the above-named federal agencies
and federal officers need comply with subpoenas served on them ;
covering these matters. The witness fee checks shall be returned
to counsel for es
i 7
This. if? — day of Par y- 1982.
/
oP : /
. I
os ED STATES DISTRICT JUDGE
CONSENTED TO:
JAMES E. BAKER
UNITED STATES A EY “si ) \/\/ y Sango ) |
A/ &
XT $40 i C al, re
NICHOLAS DUMICH MYLES EASTWOOD
ASSISTANT ATTORNEY GENERAL ASSISTANT UNITED STATES ATTORNEY
ATTORNEY FOR RESPONDENT
Attorneys for Federal Officers
and Agencies served with subpoenas.
¢ lent AF Laz l=
ROBERT H. STROUP
ATTORNEY FOR Lon RA
4 | NG
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY, *
*
Petitioner, * CIVIL ACTION NO. C81-2434A
*
Az, *
* HABEAS CORPUS
WALTER D. ZANT, *
WARDEN, GEORGIA *
DIAGNOSTIC AND *
CLASSIFICATION *
CENTER, *
*
Respondent. *
RESPONSE TO PETITIONER'S MOTION FOR AN EVIDENTIARY
HEARING
In addition to this response to Petitioner's motion
for an evidentiary hearing, Respondent has filed a brief
in support of Respondent's answer and response, addressing
the issues which Petitioner admits have been adequately developed
on the record which has already been submitted to this Court.
The instant response will address the grounds which Petitioner
claims need further development by way of an evidentiary
hearing. The issues will be addressed in the same order as
addressed in Petitioner's memorandum in support of his motion.
For the following reasons, Respondent respectfully submits
that relief may be denied without the necessity of this Court
holding an evidentiary hearing.
.
F 1 2 »
Ld
I. THE STATE DID NOT WITHHOLD FROM THE
PETITIONER ANY MATERIAL EXCULPATORY \
EVIDENCE RELATING TO THE TESTIMONY
OF WITNESS OFFIE EVANS. (GROUND 3).
Under claim A, Petitioner asserts that an evidentiary
hearine is necessary because material facts were not adequately
developed at the state habeas corpus hearing pertaining to
whether or not the state improperly withheld from the defense,
evidence which may have been utilized to impeach the testimony
of witness Offie Evans at Petitioner's trial. This potentially
impeaching evidence allegedly consisted of promises of leniency
which were made by the state as an inducement to Evans' testimony.
The same issue was raised in the state habeas corpus action which
was filed in the Superior Court of Butts County, Georgia. Witness
Evans testified at the state habeas hearing that he had spoken
to Atlanta police cfficers and the district attorney about
Eheteiivereationg which he had with the Petitioner while they
were incarcerated in the Fulton County Jail. (HT. 117-118).%/
At the time Evans had spoken with the Atlanta police investigators
and the district attorney's office there were federal escape charges
pending against him, (HT. 116, 119-120). Evans also testified
at the state hearing that although potential escape charges
were pending against him, he did not actually feel he had,
escaped, but only violated a breach of trust. (HT. 120).
He also stated that he was told in August of 1978 that the charges
against him were going to be dropped. ?’ wir. 121). ‘Following a -
1/ References to the pagination of the state habeas corpus
transcript shall be referred to as (HT. ). References to
the pagination of Petitioner's trial transcript shall be referred
tO as (T. )-»
2/ According to Evans, he learned this information at the prison,
and there was no evidence presented to show the Atlanta police
or the state prosecutor had anything to do with the decision.
)
direct question by the state habeas court as to whether or not
at the time he testified at Petitioner's trial there
had been any promises made in exchange for his testimony, witness
Evans answered:
No, I wasn't. I wasn't promised nothing --
I wasn't promised nothing by the D.A. but
the dei=ctive told me that he would --
he said he was going to do it himself,
speak a word for ne. That was what the
Detective told me. (HT. 122).
Evans was referring to Detective Sid Dorsey of the
Atlanta Police Department. (HT. 122). Evans stated he
knew nothing about Parker making any kind of deal to insure
that Evans received a lesser sentence on his escape charge.
(HT, 129).
Although the state prosecutor did not testify at the
hearing because of a conflict in his working schedule, the
state habeas court admitted evidence of his testimony by way
of his oral deposition. As the state habeas court found:
The prosecutor at Petitioner's trial,
Russell J. Parker, stated that he was
unaware of any understandings between
Evans and any Atlanta Police Department detective
regarding a favorable recommendation to be
made on Evans' federal escape charge. (Parker .
Deposition, p. 9). Parker admitted that there
- STP OT HR SAAT 1
was an othortunity for Atlanta Fotoutives
to put in a good word for Evans with federal
authorities. (1d., p. 19). However, he further
stated that when any police officer has been
killed and someone ends up testifying for
the State, putting his life in danger, it
is not surprising that charges like those
against Evans, will be dropped. {Xd.).
In the absence of any other evidence,
the Court cannot conclude an agreement existed
merely because of the subsequent disposition
of criminal charges against a witness
for the state. See Fleming v. State, 236 Ga.
434, 438 (1976). (State Habeas Corpus Order,
p. 8).
In addition to the aforecited references to Mr. Parker's
deposition, it is also relevant to note that Mr. Parker stated
that the only time he had spoken to the federal authorities
pertaining to Offie Evans, was in regards to informing the
federal authorities of his testimony, the results of the
trial, and to inquire about segregating Evans for his
own protection. (Id. 10, 11). He specifically stated he was
not aware of any deals that were made in exchange for Evans’
testimony at McCleskey's trial. {318., 14, 17),
i It is now axiomatic that the rule of Brady v. Maryland,
373 U.S. 83 (1963), covers both impeachment evidence as well
‘as evidence favorable to the accused. United States v. Martino,
86483 P.2d 367, 384 (5th Cir. 1981). ‘Iu Giglio v. United States,
405 U.S. 150 (1972), it was held that a new trial was warranted
when an assistant prosecuting attorney had made promises of
immunity to a key state witness in exchange for said witness’
testimony, and when the witness perjured himself at trial,
stating no such promises were made. The court noted that
Brady v. Maryland, supra and Napue v. Illinois, 360 U.S. 264
(1959) required a disclosure of the agreement, because the
evidence would have been irreleva t to the credibility of the
key prosecution witness. The court also noted, however, that
before a reversal would be required a finding of materiality
was necessary, i.e., that "the false testimony could . . '. in
any reasonable likelihood have affected the judgment of the
Jurys. oo. Giglio at vp. 154.
In United States v. Martino, supra, the court held that
failure of the government to disclose information for impeachment
purposes mandates a reversal only if the defendants demonstrate
that the undisclosed evidence probably would have resulted in
an acquittal. Citing United States Vv. Anderson, 574 F.2d 347
. (5th Cir. 1978). Here, witness Evans' statements on their
face do not reveal any promises of leniency. Moreover, there
is absolutely no evidence of any bad faith on behalf of the
state prosecutor, nor is there any evidence that the prosecutor
had any knowledge whatsoever of Detective Dorsey's alleged
statement to witness Evans. Additionally, a review of the
discovery motion at trial (R. 29) reveals only a motion for
a list of witnesses to all conversations between law enforcement
officials and Petitioner McCleskey. Pinally, in light of: the
overwhelming evidence which was presented at trial against
the Petitioner, it is highly unlikely that the omitted evidence
would have created a reasonable doubt as to either the defendant's
guilt or punishment that did not otherwise exist, or that it
even would have affected the judgment of the jury.
Thus, Respondent submits that based upon the record which
is already before it, this Court is authorized to find there
is no merit to Ground A of the petition. Simmons v. Wainwright,
585. F.2& 95, 96 {5th Cir. 1978); Blasingame wv. Estelle, 604 F.2d
893, 895 (5th Cir. 1979); Tyler v, Phelps, 643 r.2d 1095, 1100-
1302 (5th Cir. 1981).
IT. PETITIONER'S DEATH PENALTY HAS NOT
BEEN IMPOSED IN AN ARBITRARY OR CAPRICIOUS
FASHION AND IS NOT CRUEL AND UNUSUAL
PUNISHMENT. (GROUNDS G, H, J AND K).
Under Ground G of the petition, Petitioner asserts that
the death penalty in Georgia has been applied whimsically,
arbitrarily and capriciously because there allegedly are
numerous similar cases to that of the Petitioner's or more
aggravated than the Petitioner's which have resulted in lesser
punishments than death. Petitioner claims there is no rational,
constitutionally permissible way of distinguishing those cases
from Petitioner's case.
Under Ground H, Petitioner contends that the death penalty
in Petitioner's case has been imposed pursuant to a pattern
and practice of Georgia prosecuting attorneys, courts, juries
and governors to discriminate on the grounds of race, sex and
poverty. Under Ground J, Petitioner contends that under the
circumstances of this case, Petitioner's death penalty constitutes
cruel and unusual punishment because there was no physical or
mental tories to the victim and because the death penalty has
rarely been imposed for the shooting of an Atlanta police officer
during the course of his duty.
Under Ground K, Petitioner contends that the Georgia
appellate review has failed to insure that the death penalty
in this case was not imposed in an arbitrary or capricious
fashion.
Arguments similar to those propounded by the Petitioner
have recently been considered and rejected in Smith v. Balkcom,
660 F.2z! 573, 584-586 (5th Cir. 1981). At the state habeas
hearing, Petitioner presented a compilation prepared by No
detective for the Atlanta Bureau of Police Services, which
consisted of a summary of the police bureau records pertaining
to cases from 1960 to the time of the habeas hearing, reflecting
situations where Atlanta police officers had been killed on
duty. A review of this summary shows only 16 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 of these involved situations where
a total of six black males had killed five white male police
officers. 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 the defendants. In regard to these four individuals, 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,
and the disposition of Nathaniel Ways' case appears to be that
he pled guilty and received a life sentence, and it finally
appears that the murder charge against Frank Lee was dismissed.
(See Petitioner's Habeas Corpus Exhibit 3, HC. 217-219).
Respondent submits that the evidence presented to the
state habeas court was simply insufficient to support his
allegations of a pattern or practice of arbitrary, or capricious
infliction of the death penalty against black males who have
killed white police officers in Atlanta. Moreover, Petitioner
in the state court failed to make any showing as to the
evidence which was actually produced at any of the trials
of the aforesaid defendants, fails to show backgrounds of those
indivduals accused or murdering Atlanta police officers, and
fails to take into consideration any of the aggravating or
mitigating factors which the jury may have considered.
Petitioner has also asserted that the review process
of the Georgia Supreme Court is insufficient to insure the
nonarbitrary penalty. He has based his argument on the cases
cited by the deoraia Supreme Court in their appendix to
Petitioner's case on appeal. However, a review of Petitioner's
case shows that his crimes fell well within the parameters
authorizing infliction of the death penalty under Georgia law.
Here, the state showed bhas the Petitioner ‘was a prime mover
in the robberies and the murder. His automobile was utilized
in the dncident, (7. 514, 531-532, 647-648), and the 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, Atlanta Police Officer Frank Schlatt. (7. 649,
655, 680, 725-727, 257, 412-415). Petitioner admitted to his
accomplices, and to a police informant that he was the triggerman.
(Tv. 658-659, 661, 870).
The death penalty in this case was authorized by the
jury's finding of two separate aggravating circumstances,
and the Georgia Supreme Court reviewed this case and
applied the standard of Jackson v. Virginia, 443 U.S. 307
(1979) in determining that the evidence was sufficient to support
the aggravating circumstances beyond a reasonable douht.
McCleskey v., State, 245 Ga. 103, 115-116, 263 S8.E.24 147 (1980).
In Spinkellink v, Walnwright, 578 F.24 582, 613-614 (5th
Cir. 1978), the court observed "that if a state follows a
properly draws statute in imposing the death penalty, then
the arbitrariness and carpiciousness and therefore the racial
discrimination - condemned in Furman v. Georgia, 408 U.S.
238 (1972) have been conclusively removed."
Respondent submits that the record from the state habeas
court and the complete record of Petitioner's trial amply
demonstrates hat Petitioner's death penalty in this case
is not arbitrary or capricious, and does not constitute
cruel and unusual punishment. Therefore, this Court should
find no merit to any of Petitioner's claims under Grounds G,
H, J or K. Simmons v. Wainwright, supra; Blasingame v. Estelle,
supra; Tyler v. Phelps, supra.
III. THE IN-COURT IDENTIFICATION OF THE
PETITIONER BY WITNESSES CLASSIE BARNWELL,
DAVID ROSS, DOROTHY UMBERGER AND ARTHUR
~ KIESSLING WERE PROPERLY ADMITTED INTO
EVIDENCE, AND THE TRIAL COURT CORRECTLY
DENIED PETITIONER'S AMENDED MOTION FOR
A NEW TRIAL WHICH CONTENDED IN RELTVANT
PART, THAT THE PROSECUTOR HAD ALLEGEDLY
CONDUCTED AN ILLEGAL, POST-INDICTMENT,
PRETRIAL LINEUP WHICH HAD "TAINTED"
SAID IN-COURT IDENTIFICATIONS.
(GROUND M) .
Under claim M, Petitioner asserts that the state prosecutor im-
properly conducted a lineup on the morning of trial. Although
Petitioner asserts that the state habeas court made no finding
on this issue,” the order of the state habeas court shows
that it was relying upon the review which had already been
conducted by the Georgia Supreme Court on direct appeal. (State
Habeas Corpus Order, p. 10-11). See McCleskey v. State, supra at
p. 110(2). Reviewing the transcript in this case, the Georgia
Supreme Court found that no illegal lineup occurred. Id. Not-
withstanding said court's finding that there was no impermissibly
suggestive identification procedure, the court further reviewed
the record to determine whether or not there was a substantial
ltkelihood of irreparable misidentification. After engaging
in a extensive review of the identification testimony, the ‘
court found that all of the identification evidence was established
as reliable. (14. at p. 110-112},
wo 1
It should also be noted that in the state habeas court,
Petitioner attempted to present evidence from witness Classie
Barnwell to undermine the Georgia Supreme Court's findings.
Ms. Barnwell stated unequivocally that her identification of
the Petitioner at trial was based upon her viewing him at
the scene of the crime. (HT. 113). This was similar to
her testimony at trial. (T. 228-229, 236-237). Of course
under United States v. Wade, 388 U.S. 218 (i967) and in
Gilbert v. California, 388 U.S. 293 (1967) the question which
must be determined upon an allegation of an improper pretrial
identification procedure, is:
'Whether, granting establishment of the
primary illegality, the evidence to which
instant objection is made has come at by
exploitation of that illegality or instead
by means sufficiently distinguishable to
be purged of the primary taint.' "Wade at p. 241.
In making the determination as to whether the in-court
identification was of sufficient independent origin so as
to avoid "a very substantial likelihood of misidentification,"
the reviewing court must examine the "totality of the circumstances."
Neal v. Biggers, 409 U.S. 188, 198-199 (1972). Although not
an exclusive list, several factors which should be considered
include the following: (1) the witness' opportunity to view
the criminal at the time of the crime; (2) the witness’ degree
of attention; (3) the accuracy of any prior description; i
(4) the level of certainty demonstrated at the confrontation;
and (5) the length of time between the crime and the confrontation.
Ié.
bry 1 I TEI IRR EO J ET
Applying a "totality of the circumstances" evaluation
in 'the case sub judice, including the application of the above
factors, shows that Petitioner's claims of an improper identification
at trial are clearly unmeritorious.
As noted previously, Classie Barnwell testified at the
state habeas corpus hearing that she had based her in-court
identification of the vert eibney HOON Do observ. tions of
him at the scene of the crime. (HT. 113-114). SiKewise. db.
trial Ms. Barnwell stated that she had an opportunity to
view the Petitioner on the day of the robbery when he came
through the front door and held a gun in her face. (T. 231-
233). She stated that she had a good opportunity to view him,
and that she gave a description of him to the police. (T. 234).
As part of her description to the police after the robbery,
she indicated that the Petitioner had a mustache, was light-
skinned and was wearing shaded glasses. (T. 234). The record
does not indicate whether or not Ms. Barnwell povided the
police with any further details of the Petitioner's description.
Ms. Barnwell testified that she did not go to the Petitioner's
preliminary hearing (T. 227), and only participated in one lineup
which was held within approximately one week of the robbery.
{T. 231,238). She did not recognize the Petitioner in the lineup;
however, there was no evidence or testimony that the Petitioner
was actually in the lineup which she had viewed. (T. 231, 238).
Although Ms. Barnwell testified that she did see a photograph
(supposedly of the Petitioner) in a newspaper which looked -
familiar to Het; nevertheless, she did not examine that picture
very closely and she specifically testified that her in-court
identification at trial was not based on the picture in the paper,
but on her recollection of the day of the robbery. (T. 228-229,
236-237).
no Be
Ms. Barnwell stated that during the morning immediately
prior to trial, and while in the courtroom she did observe three
people whom she recognized. (T. 229-231, 232, 240, 248). One
of the persons whom she viewed in the courtroom that morning
was the Petitioner. She recognized him as the man whom she had
seen during the robbery. (T. 231).: She also observed two
other people sitting near the Petition r, in the jury box, whom
had been in the Dixie Furniture Store prior to the robbery.
(T. 229-230). Ms. Barnwell indicated that when she identified
the three individuals in the Oh broom prior to trial, the courtroom
was not quite full; however, there were two or three times as
many people present as were there at the time while she was
testifying. (T. 248-249).
Mr. Paul David Ross, Manager of the Red Dot Store, testified
that the Petitioner had participated in a robbery of the store
on April. .l, 1978. "(%, 723, 727). According to Mr. Ross, he had
an opportunity to observe the Petitioner and two other accomplices
7,
when they walked past him on the street immediately prior to
the robbery. {T. 724).
Ross was shown at least two sets of photographs subsequent
to the robbery. One set was balck and white and the other in color.
(T. 734-735). Ross indicated that he could not identify the Petitioner
from the photographs until he viewed the color set. His statement
about being sure as to whether or not the Petitioner was depicted
in the photos, was directed towards his viewing of the black and
white set. (T. 735). Ross testified that he had observed a y
picture of the Petitioner in a newspaper on June 1, 1978, but did
not call the police. He indicated the man looked similar to
the perpetrator of the Red Dot robbery; however, he was not
positive. (T. 723-733).
-) 3
Emly
Ross had never participated in the viewing of a live lineup
and was not present at the Petitioner's preliminary hearing.
{T.. 736). Ris first live identification of the Petitioner was
in the courtroom on Monday morning during the calendar call.
(T. 736). Ross testified that the Petitioner had been sitting
in the jury box with five others, and that -he courtroom was
quite crowded. (T. 727). Aone was positive .hat the
Petitioner was the same man who had committed the Red Dot
robbery, (T, 737).
The testimony of Mr. Ross is buttressed by that of Dorothy
Umberger. Ms. Umberger testified that she was present in the
Red Dot Grocery Store on April 1, 1978, when a robbery occurred.
(T. 740-742). She stated in her testimony that she was ninety
percent sure that the Petitioner was one of the men. who had
robbed her. (T. 746-747, 754). She based her identification
upon her observation of the Petitioner for approximately ten
seconds during the course of the robbery. (7, 753). He was
holding a gun to her head at the time. (T. 747). Although
the Petitioner was wearing a stocking mask it was not pulled tight
and did not distort his features. (T. 752). On June 20, 1978,
Ms. Umberger was shown a photographic display and at that time
also identified the Petitioner. (TT. 745).
Although Ms. Umberger testified that she had also vided
the Petitioner in the courtroom on Monday morning immediately prior
to trial (T. 746, 753); nevertheless, it is also clear from Lie
aforesaid testimony that her in-court identification was based :
on her observations during the robbery of the Red Dot Grocery
Store.
Arthur Kiessling testified that he had also observed the
Petitioner participating in the robbery of Dot's Produce on
March 28, 1978. Mr. Kiessling was the Manager of the store.
(T. 887-888). Following the robbery, Mr. Kiessling directed
the drawing of a composite of the individual who fad robbed
him and identified the man from a phintoniibh {T. 888).
Kiessling's testimony indicates that he had ample opportunity
to observe the Petitioner during the robbery on March 28, 1978
(T. 887, 889), and his identification wax positive. (T. 896).
Again, Kiessling's testimony sufficiently shows an independent
basis for his in-court identification of the Petitioner other than
his observation in the courtroom on Monday morning immediately
Prior to tiial.
Lastly, there was an overwhelming amount of additional
evidence which would have supported and justified the Petitioner's
conviction even without the immediately preceding identifications.
Petitioner was also positively identified by Ms. Mamie J. Thomas,
who had observed the Petitioner both immediately before and |
during the armed robbery. (T. 289, 295). Ms. Thomas was one
hundred percent sure that the Petitioner was the man who had
robbed the Dixie Furniture Store. (TZ. 295, 296, 299), Petitioner's
co-defendant, Ben Wright, also testified that the Petitioner had
particiapted in the robbery and that the Petitioner had admitted
shooting Officer Schlatt. (T. 647-662) . Mr. Wright's testimony
corroborated that of David Ross and Dorothy Umberger concerning
the Red Dot Grocery Store robbery. (T. 665-680).
- The state also had in its possession the Petitioner's own
free and voluntary confession wherein he admitted his full
participation in the armed robbery. (t. 5311-530). Likewise,
Petitioner also admitted his participation in the robbery to
Lieutenant W. K. Perry while Petitioner was being transported
from Marietta to Atlanta. (T. 759-760)
In conclusion, Respondent submits that the record already
before this Court shows that Petitioner had a full and fair
hearing, before the Georgia Supreme Court on this identification
issue, and thus the findings of the state court should also be
adopted in this proceeding. Sumner v. Mata, °° U.S. r101 S.Ct.
R————
764 (1981). Alternatively, the record also shows that since
all of the witnesses' testimony was based upon their observations
of the Petitioner at the scene of the crimes, habeas corpus
-relief is not justified. United States v. Wade, supra at D. 242,
IV. THE EXCLUSION OF JURORS FOR CAUSE
WHO EXPRESSED CONSCIENTIOUS OPPOSITION
TO CAPITAL PUNISHMENT DID NOT CREATE
A PROSECUTION-PRONE JURY NOR DID IT
DEPRIVE PETITIONER OF ANY DUE PROCESS
RIGHTS. (GROUND 0).
Under Ground O in his memorandum in support of his request
for an evidentiary hearing, Petitioner asserts that he proposes
to introduce additional evidence to show that death-qualified
juries, such as the Petitioner's are less than neutral with
respect to guilt. Since this issue has already been decided
against Petitioner in Smith v. Balkcom, supra, an evidentiary
hearing in this area is unnecessary.
-16-
V. PETITIONER WAS NOT DENIED EFFECTIVE
ASSISTANCE OF COUNSEL, NOR DID THE
DENIAL OF PETITIONER'S PRETRIAL MOTION
FOR EXPERT WITNESSES DENY PETITIONER
DUE PROCESS OR A FUNDAMENTALLY FAIR
TRIAL. (GROUNDS B AND P).
Under Ground B, Petitiorne- contends that the trial court's
failure to provide funds for employment of an investigator
and a ballistics expert operated to deprive Petitioner due
process. Additionally, under Ground P, Petitioner claims that
he was denied effective assistance of counsel. The state habeas
court found both of these contentions were unmeritorious.
(State Habeas Corpus Order, p. 9-10, 16-20). Since these issues
are somewhat related, Respondent will address them both through
this portion of the response.
Pastalning to the question of the pretrial motion, the
record shows that on September 6, 1978, defense counsel Turner
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 sinte’s expense.
(R. 33-35). Petitioner's trial commenced on October 9, 1978,
without the trial court granting said motion.
It is clear from the record which was developed at the
state habeas proceeding, that the defense had complete access
to the prosecution's file, which included statements from all :
of the witnesses (except Offie Evans), and the reports from
the Georgia State Crime Laboratory.
a ————— 1 ———— | ——— - ir om
Vy
There was no request in the motion for a ballistics
expert, and even if an independent ballistics SHOE, Gomis
have testified that another weapon, other than a Rossi revolver,
possibly may have fired the fatal bullets, this still would not
have been sufficient in light of 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 7.248 680(1) (5th Cir. 1979).
Under Georgia law, the granting or denial of a motion
for the appointment of expert witnesses is a matter for
the trial court's discretion. ' Westbrook v. State, 242 Ga. 151
(1978); Patterson wv. State, 239 Ga. 409, 412 (1977). Here,
Petitioner's case was not unduly complicated, and the denial
of his request for an investigator or a trained psychologist
or psychiatrist did not violate Petitioner's due process
rights or right to a fundamentally fair trial.
Petitioner's trial counsel was present, and testified
in detail at the state habeas corpus proceeding. (HY, 23-93).
A review of the entire record and Attorney Turner's testimony
demonstrates that Petitioner received effective assistance of
counsel in accordance with the federal standards.
At the state habeas corpus evidentiary hearing, Turner
testified that he had been retained by the Petitioner prior
to the preliminary hearing in Fulton County, and 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 trial, and had numerous
“lB
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 statements of the various witnesses.
The review took place shortly before trial, so arguably Turner's
observations were still fresh in his mind.
Turner did not interview witnesses Oliver, Nelloms, Tyson
or Grier (present at the scene of the robbery and murder), because
he did not believe their testimony would have been materially
beneficial. All of those individuals were forced into a back
room at the furniture store, and none were able to see who
actually left the room or who shot Officer Schlatt. The value
of their testimony would have been negligible, especially in
light of the overwhelming evidence showing that Petitioner was
the only robber in front of the store when the shots were fired,
and in light of Petitioner's own statements to co-defendant
Wright and to witness Offie Evans wherein he admitted that
he shot Officer Schlatt. (T. 656-659, 869-870).
Witness Dan Oliver testified at trial, and was unable to
verify the actual number of robbers who orained in the back
room, because he was lying face down on the floor. (T. 269,
282-283). He knew that there were at least three robbers in
the room, and although he testified that he heard footsteps running
after the shots were fired, when questioned further by defense
counsel in an attempt to elicit that others may have been in the
front of the store, Oliver verified that he could not tell from
which direction the footsteps had come. (T. 282-283). Attorney
Turner, upon reading the witnesses' statements (See Exhibit A to
Russell Parker's Deposition - District Attorney's File), was
justified in concluding that these witnesses were not in a position
“lO
to accurately observe or hear anything that could have been
exculpatory to his client, especially in light of McCleskey's
steadfast testimony at trial that he was not even present at
the Dixie Furniture Store and knew nothing of the robberies.
(T. 809-315, 830-821, 826).
Likewise, it is inconceivable that the defense would have
benefited "-o any great degree, even if defense counsel had
known that witness Offie Evans had overheard Petitioner making
inculpatory statements at the Fulton County Jail. The state
had made no secret of Evans' past criminal reccrd, and that there
were 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 charges, and
Evans stated that his cooperation was not related to that
charge. {(T. 832). Turner also had no reason to believe that
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 Tatrier additionally instructed
him not +o do so. (HT. 76, 79).
The pretrial interviewing of Ballistics Expert Kelley Pils,
would not necessarily have been any more productive than |
Turner's cross—-examination of him at trial. Fite testified that
the state's Exhibit No. 23, a bullet removed from a couch near
the body of Officer Schlatt (T. 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).
WL
At that time, 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.” (TT. 419). On direct examination, Pite
stated twice that the Rossi was the only weapon that
produced the type of characteristics found on the examined
bullets. (.'. 413-414).
The fact that Mr. Fite in his deposition taken approximately
two years after trial, has stated that it is within the
realm of possibility that a weapon other than a kossi was the
murder weapon (Fite's Deposition, pp. 4-7), does not materially
cast doubt on the jury's verdict especially since none of the
other weapons were ever recovered, and when the totality of
the evidence showed that during the robbery and shooting, the
Petitioner was carrying a silver-plated, white-handled, .38 caliber
pistol which was similar to the pistol taken in a prior robbery
in which he had participated and which was similar to the pistol
which shot Officer Schilatt. . (T., 649, 6565, 680, 725-727, .757,
412-415). The failure to speak with Ballistics Expert Fite
prior to trial, should also be considered in light of Petitioner's
own inculpatory statements wherein he admitted that he shot
the police officer. (T. 658-659, 859-870).
As the state habeas court determined, Petitioner's contentions
that his attorney was ineffective during the actual trial are
also unmeritorious. First of all, objections to the trial court's
instructions or the district attorney's arguments would have
been in vain, since no error occurred. Although Petitioner contends
counsel failed to develop on cross—-examination of Offie Evans,
testimony regarding promises made to him by the Atlanta Police,
2]
Tay Y BY;
BI ne
the record shows counsel did propound such guestions and
thoroughly explored this area. (T. 872, 882-883). Since
it was clear that the eyewitness identifications of the
Petitioner were based upon their viewing him at the scene
of the various crimes (McCleskey v. State, supra at p. 110),
trial counsel was not remiss in moving for a continuance
in a. attempt to expand upon the witnesses viewing the Petitioner
in the courtroom prior to trial. Finally, in regards to the
sentencing phase of Petitioner's trial, Attorney Turner testified
that he had gone over McCleskey's background with him, and had
asked him if he had any witnesses or knew of anyone who would
be able to testify as to his character at the sentencing phase
of the trial. (HT. 80). Turner also had spoken to Petitioner's
sister who declined to testify and was unable to give him any
other names. (HT. 80-81). Also Turner was told that Petitioner's
mother could not testify because of an illness. (HT. 80).
Part of the problem in finding character witnesses resulted
from Petitioner's extensive criminal record and previous
incarcerations. (HT. 83). Although Petitioner presented affidavits
of several witnesses who supposedly would have been available
during the sentencing phase of Petitioner's trial; nevertheless
Attorney Turner testified that these names were never given
to him. (HT. 89-91). It is axiomatic that a ¢riminal defendant
is entitled to representation by an attorney reasonably likely
to render and rendering reasonably effective assistant. 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 F.2d 375
{5th+Cir. 1980). Of course, the standard does not require
errorless counsel nor counsel judged ineffective by hindsight.
United States v. Johnson, 615 F.2d 1125 (5th Cir. 1980); Clark v.
Blackburn, 619 F.2d 431. (5th Cir. 1980). The totality of the
—-22-
circumstances surrounding the trial and the entire record must
be considered in examining the performance of counsel. See
’
e.g., Lovett v. State of Florida, 627 F.2d 706 (5th Cir. 1980);
lee v. Hopper, 499 F,24456 (5th Cir. 1974).
Respondent submits that a review of the entire record of
Petitioner's trial and the state habeas corpus proceeding in
the Superior Court of Butts County, amply demonstrates that
Petitioner received effective assistance of counsel in accordance
with the federal standards, and it is thus not necessary for
this court to grant an evidentiary hearing on this issue.
Blasingame v. Estelle, supra; Brown v. Jernigan, supra.
CONCLUSION
Notwithstanding Petitioner's assertion that additional
facts need be developed in this federal proceeding, Respondent
submits that Yeiitioner had a full and fair direct appeal before
the Georgia Supreme Court and an opportunity for a full and
fair state habeas corpus hearing in the Superior Court of Butts
County. Petitioner made no assertions to the state habeas court
that witnesses would not voluntarily testify on his behalf nor
does he deny the opportunity to depose witnesses which allegedly
may have been beneficial. Indeed, the state habeas court permitted
depositions of Ballistics Eapert Kelley Fite and State Prosecutor
Parker, both at stats expense. Since the record before this
Cours sufficiently shows that federal habeas corpus relief is
not warranted, this Court may summarily dismiss the instant
petition.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
(Signatures Continued)
-23-
ROBERT S. STUBBS IT
Executive Assistant
a General
AAR 0. GORDON “ory NOS
Senior Assistant .. l General
—= a
OFS~Cy WALDEN ~
By Assistant Attorney General
iehilao & Lumids
NICHOLAS G. DUMICH
Assistant Attorney General
Please serve:
NICHOLAS G. DUMICH
132 State Judicial Bldg.
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3499
CERTIFICATE OF SERVICE
This is to certify that I have this date served a true
and correct copy of the attached response upon counsel for
Petitioner by placing same in the United States mail, with
sufficient postage affixed thereon, and addressed to:
Mr. Robert H. Stroup
Attorney At Law
1515 Healey Building
57 Forsyth Street, N. W.
Atlanta, Georgia 30303
This Ak; Aoril, 1982.
NICHOLAS G. DUMICH
WL, ¥ I
-
1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION PILE
vs. NO. C81-2434A
WALTER D. ZANT, Warden.
Georgia Diagnostic and
Classification Center,
Respondent.
P
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2
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AFFIDAVIT OF ROBERT H. STROUP
STATE OF GEORGIA)
) ss:
COUNTY OF FULTON)
Personally appeared before the undersigned officer, duly
authorized by law to administer oaths, ROBERT H. STROUP, who
after being duly sworn, deposes and says as follows:
l. My name is Robert H. Stroup. I am more than eighteen
years of age, and am under no legal disability of any kind. I
am one of the counsel or record for the petitioner in the above-
captioned action.
2. Attached hereto as Exhibit "A" is a true and correct
copy of "Petitioner's Post Hearing Memorandum" which was filed
in the Superior Court of Butts County. The brief was submitted
to the Court as part of the state habeas proceeding on behalf of
petitioner Warren McCleskey.
3. Attached hereto as Exhibit "B" is an affidavit from
Reverend Robert L. Johnson. The evidence contained therein is
evidence which came to my attention subsequent to the State habeas
corpus proceeding.
4. Attached hereto as Exhibit "C" is an affidavit from Mrs.
Gwendolyn Sharp, the petitioner's former wife. That evidence
also came to my attention after the State habeas corpus proceed-
ing.
4
5. Attached hereto as Exhibits "D" and "E" are records of
the Bureau of Prisons, Southeast Regional Office, regarding the
cirtumstances of Evans' escape from federal custody in June,
1978. This information came to light pursuant to depositions
scheduled in this proceeding.
6. With respect to newly-discovered evidence on the
arbitrary and capricious claims raised in the petition, co-counsel
for the petitioner, John Charles Boger, has been in contact with
Social Scientist, Dr. David C. Baldus, of the Syracuse University
Law School.
7. Dr. Baldus is in the process of completing two massive
studies of charging and sentencing practices in capital
sentencing in Georgia, both pre- and post-Furman. One of Dr.
Baldus' studies was funded by the LEAA of the United States
Department of Justice. That study analyses over 600 capital and
non-capital homicide cases from the filing of the charge through
appellate review.
8. The other study of Dr. Baldus, funded by the Edna
McConnell Clark Foundation, studies over 1100 murder/voluntary
manslaughter/involuntary manslaughter cases, from the filing of
charges through sentencing.
9. Employing data gathered through cooperation with the
Georgia Department of Pardons and Paroles and the Georgia Depart-
ment of Offender Rehabilitation, these two studies evaluate
hundreds of factors connected with each case studied, including
presence or absence of statutory aggravating circumstance,
strength of the evidence, presence or absence of mitigating cir-
cumstances, and the demographic characteristics of the defendants
and victims.
10. Preliminary analysis of both overlapping studies by Dr.
Baldus strongly supports the conclusion that racial disparities,
linked to the race of the defendant and race of the victim, are
a pervasive phenomenon through charging, indictment, plea
bargaining, trial and the sentencing process, and that such
disparities do not appear to be accounted for by any of the
dozens of legitimate factors considered in the analyses.
11. While Dr. Baldus' data and final report are still being
refined, counsel anticipates that if an evidentiary hearing were
held, the testimony and data offered by Dr. Baldus would fully
meet the criteria for proof of systemwide racial discrimination
and arbitrariness set forth in Smith v. Balkcom, 671 F. 24 858,
859 (former 5th Cir. 19382).
12. Attached hereto as Exhibit "F" is a true and correct
copy of the indictment and plea entered in Fulton Superior
Court in the State v. Glenn Lee Adams. Adams' plea, for the
shooting death during the course of a robbery of black Atlanta
Police Officer Jimmy Richardson, was entered too late for counsel
to obtain a copy for submission to the State habeas court.
This (8 day of June, 1982.
Rlert¥ Rroces in. 8.1
ROBERT H. STROUP
Subscribed and sworn to before me,
this / 577. day of June, 1982.
rh 24 < < J” Pa
/1 7 - 3
(LE ber 7). CALL
NOTARY PUBLIC
MY ) 3 \ IN , hk
My commission expires:
Cr emt Tiree V5 1694
E oS I~ ~TS WEN EY fl i 8
Viv Commission LApires June iJ, 9
:
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
vs. CIVIL ACTION FILE
WALTER ZANT, Warden, NO. C81-2434A
Georgia Diagnostic and
Classification Center,
Respondent.
AFFIDAVIT OF REV. ROBERT L. JOHNSON
STATE OF GEORGIA)
) ss:
COUNTY OF FULTON)
Personally appeared before the undersigned officer,
duly authorized by law to administer oaths, REV. ROBERT L.
JOHNSON, who after being duly sworn on oath, deposes and says
as follows:
1. My name is Reverend Robert L. Johnson. I am more
than twenty-one years of age, and am under no legal disability
of any kind. This affidavit is given for use in the above-
captioned lawsuit.
2. I am the pastor of the Zion Baptist Church in
Marietta, Georgia. I have held that position for twenty-one
years.
3. In May, 1978, one of my church members, Betty Myers,
came to me and asked for the name of a lawyer whom she could
contact to represent her brother in defense of murder charges
pending against him. Her brother is Warren McCleskey.
4. At that time I suggested to Betty Myers that she
speak with John Turner. I considered John Turner my lawyer
during that time period, and had had prior dealings with him in
a number of different situations.
5. Subsequent to that request, I did speak with John
Turner on a number of occasions wherein I asked him how the
EXHIBIT "B"
McCleskey case was proceeding.
" 6. During the period prior to trial, John Turner never
asked me for the names of any persons who he might contact re-
garding Warren McCleskey's background, education, family life or
reputation in the Marietta community where he grew up.
7. If John Turner had asked me for names of such
persons, I would have been able to suggest a number of names of
persons who, I am quite certain, would have been able to pro-
vide favorable information regarding his situation. One of the
persons whose names I would most likely have given John Turner,
had he asked me, was Mrs. Emma Owens.
This o29 7h day of Mdad _ , 1983.
(Ro (Bhd {Polis sy)
REV. ROBERT / JOHNSON
Subscribed and sworn to before me,
this £2 ££ day of Pray vy 1982,
¥, (die J. ov
; NOTARY PUBLIC
i OLS iy FULD, Gears v3, midis Large
iy Cammission Expires june 15, 19&4
t 13
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
: ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-VS~ CIVIL ACTIONFILE NO. C81-2434A
WALTER ZANT, Warden,
Georgia Diagnostic
and Classification
Center,
Respondent.
AFFIDAVIT OF GWENDOLYN SHARP
STATE OF GEORGIA)
)ss:
COUNTY OF FULTON)
Personally appeared before the undersigned officer,
duly authorized by law to administer oaths, GWENDOLYN SHARP, who
after being duly sworn on oath, deposes and says as follows:
l. My name is Gwendolyn Sharp. I am more than
eighteen years of age, and am under no legal disability of any
kind. This affidavit is given for use in the above-captioned
lawsuit.
2. I was formerly married to Warren McCleskey, the
petitioner in the above-captioned case. We were married in 1963,
right after high school, and we remained married until 1972. We
went to high school together, and we dated all through high
school.
3. Immediately after graduating from high school,
Warren had little odd jobs, about the first thing to a permanent
job was working for a maintenance outfit which cleaned Rich's
stores. He tried hard to find a good job, and in 1964, was
hired at Lockheed as a Parts Stocker.
EXHIBIT "COC"
4, While Warren was growing up, he was without things
a lot. His stepfather and mother didn't have any money, and
Warren went without a lot of things which other kids had.
: 5. I also understood from things he told me during
this time period that his family life while he was growing up was
not all that happy. Although there was love in the family, I
understood that his stepfather was kind of cruel to Warren's
mother.
6. Going without things that other kids had did have
a strong influence on Warren's life. He was the kind of person
who always wanted to have things to make up for not having them
when he was young.
7. He always tried to provide for Carla, our daughter,
and give her things she would need. Sometimes he would go over-
board with Carla, and buy her things that were excessive. I al-
ways have thought that this was because he went without SO many
things when he was young.
8. Our marriage started to break up early in 1970. It
was shortly after our marital problems started that Warren began
to get into trouble. He got with a crowd of fellows who wanted
to make fast, easy money.
9. My family always thought a lot of Warren. Both my
aunt, Cordia Clements, and my mother, Ruth Carmichael, were very
close to him. My aunt is no longer living; she died in 1978.
10. The lawyer representing Warren in 1978 did not con-
tact me to discuss with me Warren's background. I would have
been willing to testify at his trial in 1978 if I had been asked
to do so.
11. I knew and lived with Warren McCleskey for a fairly
long period of time, and he was not the type of person who would
shoot anyone.
this fe. Gay Of if timy . 1982,
Shitty re, (L. 8)
GWENDPOLYN SHARP
Subscribed and sworn to before
me, this CLI day ot, ’
1982.
] Vd ow v — Sle oF ‘
ALA Cee 7h, : Zann Lez
y NOTARY "PUBLIC
Notary Public, Georgia, Stats at Large
My Commission Expires June 1G, 1584
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
|
. REY, | WARREN McCLESKEY, ; N\A A-
| Petitioner, :
|
| vs. : CIVIL ACTION NO. C81-2434A
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent. $
This action is before the court on petitioner Warren
McCleskey's motion for an order directing a hearing on
certain of the constitutional claims presented in his
petition for a writ of habeas corpus pursuant to Rule 8 of the rules governing § 2254 cases and 28 U.S.C. § 2254 (4) .
Petitioner contends that an evidentiary hearing is
appropriate on six of the constitutional claims presented in
his petition. The issues will be addressed in the order in
which they are presented in the petitioner's memorandum in
support of his motion and will be identified by the letters
assigned them by the petitioner.
CLAIM A
Petitioner asserts that an evidentiary hearing is
appropriate regarding the alleged understanding between
state officers and trial witness Offie Gene Evans regarding his testimony at trial and the federal escape charges
pending against him at the time of trial. Petitioner contends that a hearing is appropriate because under 28
U.5.C. § 2254(d) (3) the material facts regarding this issue
were not adequately developed at the state court hearing.
Unless the petitioner establishes or it otherwise
appears that one of the circumstances provided under
| § 2254 (d) (1)-(8) exists, the district court should not
disturb the findings of a state court. Sumner v. Mata,
U.8, #=., 101: S.Ct. 764 (1981). ‘Here it does not appear,
nor has petitioner established, that material facts were not
adequately developed. Evans was cross-examined at the state
habeas hearing by petitioner's attorney regarding this
issue, and the Assistant District Attorney who prosecuted
petitioner testified regarding this issue by oral deposition
which was admitted as evidence by the state habeas court.
The court made findings of fact regarding Evans' communi-
cations with the detectives and with the prosecutor. The
material facts regarding any alleged understandings or
promises were fully developed, and therefore it is not
proper for this court to hold an evidentiary hearing on this
matter.
CLAIM B AND CLAIM P
Petitioner seeks an evidentiary hearing on the trial
court's denial of his pretrial motions to proceed in forma
pauperis and for funds to employ expert witnesses in his
behalf, specifically an investigator and a ballistics expert.
Petitioner contends that this denial contravened his due
process rights and is closely related to his claim of ineffec-
tive assistance of counsel, for which he also requests ail
evidentiary hearing. These claims therefore will be treated
together.
Petitioner urges that three grounds entitle him to an
evidentiary hearing on these issues. First, petitioner
contends that newly discovered evidence has come to light
since the state habeas hearing. Petitioner's claim of newly
discovered evidence is unsupported and is not specific.
Petitioner has merely made the conclusory assertion that
such new evidence exists. In the absence of a substantial
allegation of newly discovered evidence, a federal evidentiary
hearing is not required. Townsend ¥. Sain, 372 U.S, 293 [4
317 (1962); Jackson V. EStelle, 548 F.2d 617 (5th Cir.
1977); cf. Purkhiser v. Wainwright, 455 F.2d 506 (5th Cir.
1972).
Second, petitioner contends that counsel for petitioner
had less than one month to develop evidence for the state
habeas hearing, making it impossible to develop adequately
material facts regarding these claims. Petitioner has not
shown what specific material facts were not fully developed
which would have been developed had petitioner's counsel had
more time. In addition, after a careful review of petitioner's
separate contentions regarding his claim of ineffective
assistance and of the record, it does not appear that material
facts involving petitioner's claims (a)-(j) were not fully
developed at the state habeas hearing. The court will
address these claims seriatim:
(a) Counsel's failure to interview a single witness
prior to trial: The defense counsel testified regarding
this claim at the state habeas hearing. The record before
this court shows that the defense had access to the prosecu-
tor's file, including investigative reports (HH TR 33-42).
Counsel for the defendant at the preliminary hearing cross-
examined at least three of the state's witnesses and two of
the state investigating officers (H TR 27-28); defense
counsel had extensive conversations with the prosecutor (H
TR 42-43).
(b) Counsel's failure to secure the testimony of
witnesses who would have given testimony in support of
either of the two defenses which defense counsel recognized
were available to defendant: Defense counsel testified at
the state habeas hearing regarding his decisions on which
witnesses were important, the theory of the defense, and the
development of the defense on Cross-examination (H TR 37) (H
TR 45-48).
1 References to the state habeas transcript are identified
"H TR."
(c) Counsel's failure to develop expert testimony
regarding the identity of the murder weapon: Defense
counsel testified at the state habeas hearing regarding his
access to the investigative reports of the ballistics expert
who testified at trial.
(d) Counsel's failure to examine the prosecutor's
investigative file until the eve of trial: Defense counsel
testified at the state habeas hearing regarding his examina-
tion of this file (H TR 34-35).
(e) Counsel's failure to object at trial to trial
court instructions which were contrary to Supreme Court
standards: An evidentiary hearing is necessary only when
facts are at issue. Here the question is legal rather than
factual and no evidentiary hearing is needed. See Hicks Ye.
Wainwright, 633 P.2d4 1146, 1150 (5th Cir. 1981).
(£) Counsel's failure to object to the district
attorney's argument to the jury which directed the jury's
attention to the appellate processes wherein life sentences
had been reduced to 15 or 18 years: Whether or not this
failure to object constituted an error of constitutional
dimension can be determined by examination of the trial
record.
(g) Counsel's failure to develop on cross-examination
one of the state's key witnesses’ testimony regarding
promises made to him by Atlanta police detectives of favor-
able recommendations which would be made in exchange for his
testimony -- whether or not counsel's cross-examination was
adequate can be determined by examination of the trial
record. In addition defense counsel testified at the state
habeas corpus hearing regarding Evans' testimony (H TR 75-
80) .
(h) Counsel's failure to move for a continuance or
mistrial when he was taken by surprise by the pretrial
lineup procedure conducted in the courtroom the morning of
trial: Defense counsel testified at the state habeas
hearing regarding this matter (H TR 62-75).
(1) Counsel's failure to prepare for the sentencing
phase of the trial: Defense counsel testified regarding
this matter at the state habeas hearing (H TR 80-84), and he
testified regarding witnesses whose affidavits were presented
tOo the habeas court (H TR 97-98).
(J) Counsel's failure to develop testimony regarding
petitioner's life history which would have been considered
by the jury in mitigation of the guilt finding: Trial
counsel testified regarding this issue at the state habeas
hearing (H TR 80-84).
Petitioner's contention (k) supporting his claim of
ineffective assistance of counsel is that counsel failed to
respond to the trial court's request that he review the
court's sentencing report for accuracy. Facts regarding
this claim do not appear to have been Seveioned at the state
habeas hearing. Under Galtieri Vv. Wainwright, 582 F.2d 348,
353 (5th Cir. 1978) (en banc) "{[flor a claim to be exhausted
[under 28 U.S.C. § 2254], the state court system must have
been apprised of the facts and legal theory upon which the
petitioner bases his assertion." The Fifth Circuit has held
that if a petitioner alleges new facts in support of his legal
plea, the petition must be dismissed from the federal court
without prejudice to give the state court an opportunity to
review these newly surfaced facts. Hart v. Estelle, 634
F.2d 987 (5th Cir. 1981); Knoxson V. Estelle, 574 P.24 1339
(5th Cir. 1978). Further support for remanding such an
unexhausted factual allegation in support of a legal theory
can be found in the recent Supreme Court opinion of Rose Vv.
Lundy, 50 U.S.L.W. 4272 (March 3, 1982), in which the Court
held that a district court must dismiss habeas petitions
containing both unexhausted and exhausted claims. This rule
will not impair the state prisoner's interest in obtaining
speedy federal relief on his claims, since rather than
returning to state court to exhaust all of his claims the
petitioner can always amend the petition to delete the
unexhausted claims, although by doing so he would risk
| dismissal of subsequent federal petitions as an abuse of the
writ. Since petitioner's contention that his right to
effective assistance of counsel was violated by counsel's failure to review the presentence report could arise to a
constitutional claim, see Townsend ¥. Burke, 334 U.S. 736
(1947); see also United States Vv. Tucker, 404 U.S. 443
i (1971), and since so far as the court can ascertain this
claim was not presented to the state court, this petition | for writ of habeas corpus will be dismissed without prejudice.
Third and finally, petitioner contends that a hearing
on ineffective assistance is appropriate because the state
habeas court did not expressly resolve all of the specific
and controlling factual issues raised. Except as to subclaim
(k) noted above, it appears from the record that the merits
Of the factual disputes regarding petitioner's claims of ineffective assistance of counsel were heard and decided by
the state habeas court. Most of the findings of fact made
were express, and this court, in accordance with the United
States Supreme Court's holding in Townsend Vv. Sain, supra,
at 314, finds after a careful review of the record as
outlined above that for those issues where express findings
were not made, the state court impliedly found the material
facts. "Therefore, an evidentiary hearing on these issues is
not warranted. Section 2254(d) (1).
CLAIM O
In his motion petitioner requests an evidentiary
hearing on whether exclusion of two jurors from the guilt
|
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phase of the trial without any inquiry as to whether their
views on capital punishment would adversely affect their
determination as to guilt contravened petitioner's due
process rights. The Fifth Circuit has held that such a
claim presents legal questions, not factual ones, and,
therefore, an evidentiary hearing on this issue is not
warranted. Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981).
ClAIMS' G, H, 1, J AND X
Petitioner contends that the death penalty is arbitrary,
capricious, or cruel and unusual. He presents five grounds
regarding imposition of the death penalty for which he
argues that an evidentiary hearing is appropriate.
Petitioner argues overall that an evidentiary hearing
should be held because the state habeas court denied his
motion for funds for expert testimony and rejected the
evidence submitted by affidavit in conclusory form without |
findings of fact. Furthermore, petitioner claims to have
additional evidence developed subsequent to petitioner's
state habeas hearing.
Petitioner first contends that the death penalty is in
fact administered arbitrarily and capriciously though it is
constitutional on its face in that the Georgia Supreme Court
has upheld it without a rational, constitutionally per-
missible comparative review of similar cases. Whether or
not the Georgia Supreme Court followed the statutory mandate
Of 8 27-2537(c){3) is a question of law for which an eviden-
tiary hearing is not needed. Hicks v. Wainwright, 633 F.2d
1146, 1130 (5th Cir. 1931).
Second, petitioner contends that in this case the death
penalty was imposed pursuant to a pattern and practice of
discrimination on the basis of race, sex and poverty’ in the
administration of capital punishment.’ Petitioner asserts
that "black killers and killers of white persons are sub-
stantially more likely to receive a death sentence than
others."
Under the standard of Spinkellink v. Wainwright, 578
F.2d 582 (5th Cir. 1978), where a state's sentence review
system is constitutional on its face, a federal habeas court
should not intervene and review substantively whether that
statute is being applied arbitrarily and capriciously unless
the petitioner "can show that the facts and circumstances of
his case are so clearly undeserving of capital punishment
that to impose it would be patently unjust and would shock
the conscience," Spinkellink at 606 n. 28, or the petitioner
"can show some specific act or acts evidencing intentional
or purposeful racial discrimination against him." Spinkellink
at 614 n. 40; see McCorquodale VY. Balkcom, 525 7. Supp. 408,
426 (N.D.Ga. 1981).
Petitioner here has not shown that imposition of capital
punishment in his case would be patently unjust and would
shock the conscience. Petitioner also has not alleged or
shown any specific act or acts evidencing intentional or
purposeful discrimination against him. Rather, he alleges a
pattern and practice of racial discrimination. A showing of
"circumstantial or statistical evidence of racially dispropor-
tionate impact may be so strong that the results permit no
other inference but that they are the product of a racially
2/ -— Though petitioner contends generally that a pattern and practice of discrimination on the basis of sex and poverty
exists, he has not developed these grounds in his argument. Therefore, they will not be addressed here.
Y The court notes that the allegation in McCleskey's
petition tracks the language used by the petitioner in
Spinkellink V. Wainwright, 578 P.24 582, 616 n. 42 (5th Cir.
1978).
I
I
discriminatory intent or purpose." Smith v. Balkcom, 671
F.2d 858, 859 (former 5th Cir. 1982), per curiam, modifying
660 F.28 573, 585 (former 5th Cir. 1981) ,% citing Village
of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 266 (1977). Therefore, such evidence
of disproportionate impact may properly be the subject of an
evidentiary hearing, particularly where the petitioner is a
member of a suspect class, as may be the case here.
A hearing is not mandated here, however, since peti-
tioner has neither established nor does it otherwise appear
that the material facts regarding racially disproportionate
impact were not adequately developed by the state habeas court.
Further, in 1979 in two habeas cases this court received
evidence from the same expert whom petitioner apparently
would have presented at the state habeas hearing and whose
testimony was presented by affidavit there. (This court's
findings in those cases is a part of the state habeas record.)
He has not shown that an amplification by oral testimony in
this court of the evidence presented by affidavit in the
state habeas court would develop further any material facts
regarding disproportionate impact. The material available
to the state habeas court and to this court would not support
an inference that a higher proportion of black defendants
receive the death penalty in Georgia than do white defendants.
Though petitioner has made the conclusory allegation that
"new evidence" has come to light, in the absence of a sub-
stantial allegation of newly discovered evidence an evidentiary
4/ = This case was decided after October 1, 19281, and it is
not apparent whether the case was "submitted for decision"
within the definition of Section 9 of the Pifth Circuit
Court of Appeals Reorganization Act of 1980, P.1L. 96-452, 94
Stat. 1995 and the Eleventh Circuit's holding in Bonner v. City of Pritchard, 661 F.2d 1206, 1207-08 (llth Cir. 1981).
Therefore, it is not clear that Smith constitutes binding
precedent; however, this court will consider it controlling.
hearing is not required. Townsend Y. Sain, 372 U.5. 293,
317 (1962); Jackson V. Estelle, 548 P.24 617 (5th Cir.
1977); cf. Purkhiser v. Wainwright, 455 F.2d 586 (5th Cir.
1972).
Third, petitioner contends that the theoretical justi-
fications for capital punishment are groundless and that
death is therefore an excessive penalty which fails to serve
any rational and legitimate social interests and violates
the Eighth and Fourteenth Amendments. The Supreme Court has
held that the manner in which the death penalty is imposed
may be unconstitutional, but it has not held that the
imposition of the death penalty per se violates the
Constitution. Furman V. Georgla, 408 U.S. 233% (1971).
Petitioner apparently would have this court hold evidentiary
hearings on this issue. As a question of law the constitu-
tionality of the death penalty per se is not properly the
subject of an evidentiary hearing.
Fourth, petitioner argues that the imposition of the
death penalty is cruel and unusual in light of the cir- |
cumstances of the offense and the mitigating circumstances.
There being no showing why these factors are not evident
from the state court record, an evidentiary hearing is not
required.
Finally, petitioner contends that the Georgia Supreme
Court's review was not exercised so as to assure that the
death penalty was not arbitrarily and capriciously imposed
in petitioner's case, in that the court's comparative review
relied on cases dissimilar to petitioner's. This issue
appears to be closely related to claim (gd), supra, and is
also a question of law for which an evidentiary hearing is
inappropriate. The court notes in passing that the impression
conveyed by petitioner's brief is that the death penalty has
not been imposed recently for the murder of policemen. The -10-
contrary appears to be the case judging by the cases cited
by the Georgia Supreme Court in its Appendix.
CLAIM M
Petitioner requests an evidentiary hearing on the issue
of the admission of identification testimony at trial allegedly
tainted by an improper lineup procedure on the grounds that
the material facts were not adequately developed at the
state habeas hearing and that the state habeas court made no
findings on this issue, thereby failing to resolve the
merits of the dispute.
Petitioner has not shown nor does it otherwise appear
that the material facts were not fully developed regarding
this issue. Petitioner's trial counsel testified regarding
the alleged improper lineup and one of the witnesses whose
in-court identification of petitioner is alleged to be
tainted also testified at the state habeas hearing. Likewise,
petitioner has not shown nor does it otherwise appear that
the state court failed to resolve the merits of the factual
dispute. Petitioner contends that the state habeas court's
failure to make express findings on this issue constituted a
failure to resolve the merits of the factual dispute.
However, after hearing the evidence presented the state
court in its order expressly relied on the findings of the
Georgia Supreme Court on petitioner's direct appeal and
stated that petitioner had presented no new evidence to
indicate that its findings were in error. The habeas court's
findings are therefore impliedly those of the Georgia Supreme
Court and can be ascertained by this court. See Townsend Vv.
Sain, 372 U.S. 293, 313-16. An evidentiary hearing to
determine the circumstances of the alleged improper lineup
and tainted identification testimony is therefore not proper.
-11-
# ®
CONCLUSION
In sum, the petitioner has prescribed six constitu-
tional claims for which he contends an evidentiary hearing
is appropriate. The court holds that no evidentiary hearings
are necessary on the issues presented. As to the factual
allegation of claim (k) under petitioner's legal theory of
ineffective assistance of counsel, it does not appear that
this issue was presented to the state court. Accordingly,
this petition is hereby DISMISSED WITHOUT PREJUDICE for
failure to exhaust this claim.
IT IS SO ORDERED this > day of June, 1982.
CL ol Soo” so
J. OWEN FORRESTE
UNITED STATES DISTRICT JUDGE
-12-
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
CIVIL ACTION NO. C81-2434A
Petitioner,
V.
WALTER D. ZANT,
GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER,
HABEAS CORPUS
Respondent.
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OF
BRIEF IN SUPPORT OF RESPONDENT'S ANSWER AND
RESPONSE
The brief herein is being submitted in support of Respondent's
Answer and Response, and in opposition to Petitioner's memorandum
of law in support of his arguments urging this Court to grant
habeas corpus relief based upon the record and relating to
issues which he contends require no evidentiary hearing. An
additional response and brief is also being separately submitted
on the issues which Petitioner claims require an evidentiary
hearing.
PART ONE
STATEMENT OF THE CASE
On June 13, 1978, the Fulton County, Georgia 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. 33. The Petitioner,
1/ References to the pagination of the official record from
the Superior Court of Fulton County (Respondent's Exhibit I) shall
be designated in this brief as (RR. ). References to the
pagination of Petitioner's official trial transcript from the
Superior Court of Fulton County (Respondent's Exhibit 2, Volumes I
and 11) shall be referred to as (T. ). References to the
pagination of the transcript of Petitioner's state habeas corpus
hearing in the Superior Court of Butts County (Respondent's
Exhibit 5) shall be referred to in this Brief as (HC. ,
Warren McCleskey was tried separately on October 9-12, 1978,
and was found guilty on all three counts. {f. 110; BR. 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. [T. 1031? R. 56;
gee, Ga, Code Ann. § 27-2534.1(b) (2) and (b) (8)1. 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
to the United States Supreme Court was denied. McCleskey v.
State, 245 Ga. 108, 263 S.E.284 146 (1980), cert.~den., 449 U.S.
891 (1980).
Following the denial of certiorari, a new execution date
was set, and thereafter, on January 5, 1981, Petitioner filed
a state habeas corpus petition in the Superior Court of
Butts County, Georgia. Following an evidentiary hearing on
January 30, 1981, the Butts County Superior Court denied
relief in an order dated April 8, 1981. (See Respondent's
Exhibits 5 and 8). The Georgia Supreme Court denied Petitioner's
application for a certificate of probable cause to appeal on
June 17, 1981 (Respondent's Exhibit 9), and thereafter, Petitioner
filed a second petition for a writ of certiorari in the -
United States Supreme Court. Said petition was denied on
November 30, 1981. (Respondent's Exhibit 10).
A new execution date was again set by the Fulton County
Superior Court, and on December 30, 1981, the instant application
for a federal writ of habeas corpus was filed.
=
RR
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. 231-232,
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 Vv. 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 bp, 112,
Petitioner's co-defendant, Ben Wright, testified at
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 blue steel .25 caliber pistol. (T. 649-651),
While Dupree, Burney and Wright held several employees
in the back of the store, Petitioner was in the front. {P. . 656).
Unbeknownst to Petitioner and his cohorts, employee Classie
Barnwell had activated a silent alarm, which resulted in the
ayrival of Officer Frank Schlatt. {7T. 213-214). Shortly
after Schlatt entered the front of the store he was ambushed
and gunned down. After hearing two shots Wright observed
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 ¥aiming out of the
front door carrying a white-handled pistol; however, he could
not identify that individual. (T. 331-333).
The state also introduced the testimony of Mx. Offle
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. {T. 811).
Petitioner denied that he had made a statement to
Lieutenant Perry that he had participated in the rokbery,
(T. 822-823), and stated that he had made aifalse Stotdnent 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. {7T. 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 aBserved 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. (PT. 735, 737). Ross also testified that during
the course of the Red Dot robbery his nickle-plated .38 caliber
revolver was taken. {'r. 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.
{(T. 747). In addition to observing him at trial, Ms, Umberger
had also 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 ropbery of Dot's Produce on March 28, 1978. His
identification of the Petitioner was positive. (TT. 837-889,
896).
Additional facts will be recited when necessary to
augment the following Argument and Citation of Auithority.
- PART THREE
ARGUMENT AND CITATION OF AUTHORITY
I. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY
RELATING TO PRESUMPTIONS ON THE ISSUE OF
CRIMINAL INTENT DID NOT VIOLATE ANY OF
PETITIONER'S CONSTITUTIONAL RIGHTS. (GROUND C)%
Ground C of the petition, and Petitioner's first argument
in his brief, asserts that the trial court's charge to the
jury during the guilt/innocence phase of Petitioner's 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.
Petitioner further argues that the alleged erroneous instruction
may not be considered as harmless error. The trial court's
entire charge to the jury is set out on pages 987-1008 of the
trial transcript which has been submitted to this Court (Respondent's
Exhibit 2), and need not be repeated in this brief; however,
it may be advantageous to focus upon certain relevant portions
of the instructions as they relate to the issues raised in
this action.
On pages 996-997 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 3
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
discretion are presumed to be the product
of the person's will, and a person of sound
mind and discretion is presumed to intend
the natural and probable consequences
of his acts, but both of these presumptions
may be rebutted.
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,
ddheanoy, motive and all other circumstances
connected with the act for which the accused
is prosecuted. (T. 996-997).
In addition io the above, the Court also instructed on
the presumption of innocence in the defendant's favor, and
the burden which is upon the state to prove all allegations
of each count beyond a reasonable doubt. (T. 988). The
trial court gave a separate and detailed instruction on malice
as an element of malice murder. (T. 998-999, 1008).
In analyzing the challenged jury instructions in this
case, it is axiomatic that the trial court's charge must be
considered as a whole. Before relief may be granted in a
collateral attack, based upon erroneous jury instructions,
the court must find that the instructions so infected Petitioner's
entire trial that the resulting conviction violated due process.
Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cupp v. NN. ughten,
414 U.S. 141, 147 (1973). Careful attention must be afforded
to the words actually spoken to the jury, see, County Court
Of Ulster County v. Allen, 442 U.S. 140, 157-159, fn. 16 (1979)
and, ". . . 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
U.S. 510, 514 (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 toasonablesdoibe. 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 this case, there is no rational way a trier
of fact could have made the connection as permitted by the
inference. ' Ulster County, supra, 442 U.S. at P- 157. Ultimately,
the test of a presumption's constitutional validity in any given
case depends upon whether the evidentiary device undermines the
fact finder's responsibility at trial, based upon evidence adduced
by the state, to find the ultimate facts beyond a reasonable
doubt. 1Id., citing In Re Winghip, 397 U.S. 358, 364 (1970)
and Mullaney, supra at p. 702-703, n. 31.
As noted by Petitioner, recently the Fifth Circuit Court
Of Appeals in Tyler v, Phelps, 643 7.24 1095 (5th Cir. 1931),
held that an instruction similar to that challei ged in thls
case was unconstitutional; however, in reaching this conclusion,
the Court considered a number of factors in addition to the
precise wording by the trial court. The Court of Appeals
noted that the primary issue was whether the Petitioner had
possessed a specific intent to kill or do brews 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.
Xd. 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 instructions to
the jury. Such was not the case at Petitioner's trial. Likewise,
in Sandstrom Vv. Montana, supra, the court stressed that the
defendant had been charged with deliberate homicide, and he had
actually admitted the killing, but denied doing so purposefully
or knowingly. The key issue in that case pertained to whether
or not the defendant had formed the requisite mens rea. The
jury in Sandstrom had simply been instructed that "[t]he law
presumes that a person intends the ordinary consequences of
his voluntary acts.” The jury was not told that the presumption
could be rebutted. “gd, , at p. 517. The United States Supreme
Court found that a reasonable juror could have interpreted the
aforesaid instruction as creating a conclusive, irrebuttable
presumption, or alternatively may have interpreted the instruction
EF Th
as shifting the burden of proof to the defendant on the
element of intent. Id.
Of course, as in Phelps, the instruction in the instant
case was similar to that as given in Sandstrom; however, the
jury in the instant case was also told that the presumption
was rebuttable. Respondent submits that when the tricl court's
instructions are considered as a whole, it is clear that a
reasonable juror would not have interpreted the challenged
instruction as being conclusive, but would have understood
‘that its effect was only to create a permissive inference
which could have been deduced from the state's evidence,
in which the jury was free to apply or reject in light of
all the evidence in the case. Such an interpretation is
in accord with the Georgia Supreme Court's analysis of the
legal significance of instructions which were similar to
those as were given in this case. See Skrine v. State,
244 Ga. 520, 260 S.E.28 900 (1979); Adams v. State, 246 Ga.
113, 269 S.E.24 11 (1980); Bridges v. State, 246 Ga. 323, 324,
271 S.B.24 471.41930).
In Ulster County, supra, the court described the test
for a constitutional attack on a permissive inference, such
as in this case, as follows:
On reviewing this type of device the Court
has required the party challenging it to
demonstrate its invalidity as applied to him.
Because this permissive presumption leaves
the trier of fact free to credit or reject
the inference and does not shift the burden
of PRdol, At effects the application of the
'beyond a reasonable doubt' standard only if,
-11l«
under the facts of the case, there is
no rational way the trier could make
the connection permitted by the inference.
For only in that situation, is there any
risk that an explanation of the permissible
inference to a jury, or its use by a jury,
las caused the presumptively or rational
fact finder to make an erroneous factual
determination. ' Id. at p. 157. [Cases omitted].
The proper question thus becomes whether there was a
rational basis under which the jury might infer criminal
intent from the actions of the Petitioner and his co-defendants
as a result of their entering the Dixie Furniture Store in
Atlanta, Georgia, brandishing weapons, and demanding money
at gun point. The evidence, as noted in the aforesaid statement
of facts, overwhelmingly showed that when Atlanta Police Officer
Frank Soniavtinvrived at the scene, Petitioner hid in the
front of the store and shot at him. Respondent submits that
the aforesaid demonstrates Petitioner's criminal intent beyond
a reasonable doubt, and certainly a rational trier of fact
was authorized to make the connection permitted by the inference.
Alternatively, even if this Court should find that the
challenged instruction in this case created a burden-shifting
charge or relieved the state from the obligation of proving
all essential elements of the crime, this Court may further
conclude that any error was harmless. Recently in United States
“yg. Cawsel, ‘638 F.0d 441, 446-447 (5¢h Cir. 1981) and in
Mason v. Balkcom, 669 F.2d 222, 227 (5th Cir. 1982), the Fifth
Circuit Court of Appeals stated that even a burden-shifting
instruction does not necessarily, automatically require reversal
we Te
when there is evidence before the jury of objective conduct
demonstrating criminal intent or where evidence of guilt is
so overwhelming that the error could not have been a contributing
factor in the jury's decision to convict. Here, there was over-
whelming evidence of objective conduct demonstrating malice,
criminal intent, and the Petitioner's guile. Thus, under
the cases of Chapman v. California, 386 U.S. 18 (1967) and
Harrington v. California, 395 U.S. 250 (1969), this Court should
conclude that any alleged error was harmless and a reversal is
not warranted. This is especially true when it is considered
that the challenged instructions refer only to general intent
and do not actually felon to the malice element as Petitioner
argues in his brief. This has previously been recognized by
the Fifth Circuit Court of Appeals in Holloway v. McElroy, 632
F.2d 605, 618 (5th Cir. 1980), and is further supported by a
review of the totality of the instructions in this case. As
has previously been noted, the trial court gave distinct and
separate instructions on the element of malice. (T. 993-999, 1008).
For all of the aforesaid reasons, this Court should find
that there is no merit to Ground C of the petition.
-13
II. NEITHER THE EVIDENCE OF PETITIONER'S
PRIOR CRIMINAL ACTS WHICH WERE ADMITTED
DURING HIS TRIAL, NOR THE TRIAL COURT'S
INSTRUCTIONS TO THE JURY ON SAME, VIOLATED
ANY OF PETITIONER'S CONSTITUTIONAL RIGHTS.
(GROUNDS D AND F).
Under claim D of the petition, Petitioner McCleskey
asserts that the trial court erroneously instructed the
jury pertianing to the extent to which they were authorized
to consider prior acts of misconduct by the Petitioner for
which he had not been convicted. Under claim F of the petition
he contends that the testimony concerning the Petitioner's
participation in prior robberies for which he had not been
convicted, and testimony which was elicited pertaining to
several details of armed robberies for which he had been
convicted unduly prejudiced Petitioner and violated his
Eighth and Fourteenth Amendment rights under the United States
Constitution.
On direct appeal, the Georgia Supreme Court reviewed
the question pertaining to the admissibility of evidence
relating to armed robbery for which the Petitioner had not
been convicted. ' McCleskey v. State, Supra at p. 114, During.
the state's case in chief, witnesses Ben Wright, Paul David
Ross and Dorothy Umberger all testified cones ehtng Petitioner's
participation in a robbery at the Red Dot Grocery Store. (T. 665-
667, 723-727, 738-752). The testimony of these witnesses was y
properly admissible at Petitioner's trial, not to show that the
Petitioner was predisposed towards the commission of criminal
acts, but rather to establish identity, common plan or scheme,
state of mind, motive and intent. Under Georgia law, before
-14-
evidence of a prior independent crime becomes admissible,
the state must show: (1) that the defendant was, in fact,
the perpetrator of the independent crime, and (2) a sufficient
similarity or connection between the independent crime and the
offense charged so that proof of the former tends to prove
the latter. Hamilton v. State, 239 Ga. 72, 75, 235 8.8.24 515
(1977); French v. State, 237 Ga. 620, 229 S.E.24 210 {1976).
After the Petitioner had taken the witness stand, and
had put his character into 1358, certified copies of Petitioner's
prior convictions for armed robberies in Cobb, Fulton, Douglas
and DeKalb Counties were properly admitted into evidence. (T.
843-848, 854-855). See Timberlake v. State, 246 Ga. 488(6),
271 S.E.28 792 (1920)... No limiting instructions for these
convictions were requested by the defense.
Also, after the Petitioner had placed his character into
issue by taking the witness stand in his own behalf, and after
he had denied taking part in a robbery at Dot's Fruit Stand,
(T. 817-819, 837), the State on rebuttal introduced evidence
concerning Petitioner's participation in said robbery although
he had not been convicted of same. (T. 885-897). Evidence
of the Dot's Fruit Stand volibeny was introduced for purposes
of impeachment.
The trial court properly gave limiting instructions to
the jury relating to both the Red Dot and Dot's Fruit Stand
robberies. Pertaining to the Red Dot Grocery Store robbery,
the court instructed at the request of the defense as follows:
All right. Ladies and Gentlemen, in
the prosecution for a particular
crime, evidence which in any manner
) 5
shows or tends to show that the accused,
that is, the defendant in this case, has
committed another transaction, wholly distinct,
independent and separate from that for which
he is on trial, even though it may show a
transaction of the same nature. with similar
methods, in similar locations, . it is adnritted
into evidence for the limited purpose of
aiding and identification and illustrating
the state of mind, plan, motive, intent
and scheme of the accused, if, in fact,
it does to the jury illustrate those matters.
Now, whether or not this defendant was
involved in such similar transactions is
a matter for you to determine, and the
Court makes no intimation on that regard.
Furthermore, if You conclude that the defendant
now on trial was involved in this similar
transaction or these similar transactions,
you should consider it solely with reference
to the mental state or intent of the defendant
insofar as applicable to the charges in the
thAlGtuent, and the Court in charging you this
principle of law in no way intimates whether
such transaction, if any, tends to illustrate
the intent or state of mind of the defendant.
That is a question for the jury to determine,
but this evidence is admitted for the limited
Wy
purpose mentioned by the Court, and you will
consider it for no other purpose except the
purpose for which it is admitted. (T. 673-674).
As noted previously, this instruction was in accordance
with Georgia law. Hamilton v. State, supra; French v. State,
supra; Head v. State, 246 Ga. 360, 364, 271 S.E.2G 452 (1980).
Prior to the introduction of evidence pertaining to the
Dot's Fruit Stand robbery, the trial court instructed on
impeachment. The court stated:
Ladies and Gentlemen, this evidence, like all
the evidence since the defendant has rested,
is offered for the purpose of rebuttal or
impeachment purposes, to test the -- for
impeachment purposes, about which TI will give
you.a charge at the end of the trial. It
Is to be accepted for that purpose and for
no other purpose. Whether it does or does not
impeach any witness is for you to decide. The
Court makes no intimation in that regard.
CT. 883).
Prior to the jury's deliberations during the guilt/innocence
phase of the trial, the court again specifically instructed
the jury relating to its use of the prior criminal acts and
on impeachment. (T. 992-993; 990-991).
In Spencer v. Texas, 385 U.S. 554, 560-561 (1977), the
Court summarized its view relating to the regulation of state
evidentiary rules pertaining to evidence of prior offenses
and noted that:
-) F-
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,
« »i.stan element inthe crime... . ," identity,
«aie dmalice, i, Ll #wotive, . . . 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 "[tlhere
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).
The Court recognized in Spencer that states must be
given discretion in determining the other purposes for
which they will permit evidence of prior criminal acts. This
deference to state decision making reflects the practical
relization that, "[tlo 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 in woads Ana [the] entire complex code of state
criminal evidentiary law, and would threaten other large areas
of trial Jurisprudence." Spencer at p. 562. A state may regulate
ww] gw
the procedure of its courts in accordance with its own conception
of policy and fairness, unless in doing so 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, 105 (1934). It is clear that the
admission into evidence of prior criminal acts to prove relevan'*
factors other than the 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 F.2d 889, 892-895
{6th Cir. 1974).
Accordingly, evidence of Petitioner's participation in
the prior robberies at the Red Dot Grocery was properly admitted
to establish identity, common plan or scheme; state of mind,
motive and intent, and the evidence of the Dot Fruit Stand
robbery was admissible for impeachment purposes. Such evidence
falls within recognized Georgia exceptions to the genexal
rule against admissibility of other criminal activity, and
since Petitioner was positively identified as the perpetrator
of the Red Dot Robbery, and since there were sufficient similarities
or connections 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 at
P.. 114,
Evidence relating to the robbery at Dot's Fruit Stand was
also properly admitted under Ga. Code Ann. § 38-1802 since,
"a witness may be impeached by disproving the facts testified
to by him." Once the 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 admissible for the purposes of impeaching
his credibility. In addition, as noted previously,
«9
the jury was instructed by the trial court to consider the
evidence for impeachment purposes only. (T. 885,990-992).
Pertaining to Petitioner's convictions, as was previously
noted, under Georgia law a witness' conviction for a crime
involving moral turpitude may be considered in determining
his credibility. Shaw v. State, 102 Ga. 650, 29 8.8. 477
(1897); Powell v. State,.122 Ga. 571, 50 5.x. 361 (1905);
Timberlake v. State, supra. On direct testimony, Petitioner
also admitted that he had been convicted of numerous robberies
in 1970, (T. 805-806), thus any references to his prior
robbery convictions were minimally prejudicial.
Petitioner stresses that the state prosecutor committed
reversible error by questioning the patitioner about the
details of several of the robberies. He contends that this
questioning unduly focused the jury's attention upon the
Petitioner's alleged bad character. Notwithstanding Petitioner's
contentions, it is obvious that even 1f the prosecutor's
references to several of the details of Petitioner's admitted
convictions was erroneous; any such error was harmless beyond
all reasonable doubt when the references are considered in
light of the record as a whole. The state's case against
the Petitioner was overwhelming, and included Petitioner's
confession to the police wherein he admitted his participation
of the robbery. {(T. 511-531; 757-760, 765). Emplovees of
Dixie Furniture positively identified Petitioner as a participant
in the armed robbery, (T. 231, 242, 250, 289, 295-296, 299),
and additionally, one of Petitioner's co-defendants also testified
against him. (T. 647-665). Petitioner's co-defendant was also
instrumental in showing that Petitioner was actually the trigger-
man. His testimony showed that during the course of the robbery,
and when victim Frank Schlatt arrived at the scene, the Petitioner
“20
was the only robber at the front of the store. {P..656). After
Officer Schlatt was shot, co-defendant Wright observed the
Petitioner running out the front of the store. (T. 657-707).
During the getaway from the crime scene, Petitioner admitted
that he had shot Officer Schlatt. (T. 658-659). The Petitioner
later made similar admissions after his arrest and while incarcerated
in the Fulton County Jail. (T. 869-870).
To oppose the state's evidence, Petitioner offered only
a weak alibi defense which was not supported by the testimony
of any other witnesses. (T. 809-811).
In addition to the overwhelming evidence against the
Petitioner, this Court may also surmise from a review of the
Tecord that the state prosecutor's references to a few details
from two of the robberies covered only approximately two and
one-half pages of a 1,037 page transcript. (See T. 846-848).
Additionally, the references were quite minor, and the state
prosecutor did not even mention the convictions in his closing
argument to the jury. (See, T. 953-986). Respondent submits
that under such circumstances, the prosecutor's actions were
not so unfair as to deny Petitioner due process or a fundamentally
fair trial. Cobb v. Wainwright, 609 F.2d 754 (5th. Cir. 1980),
cert. den., 447 U.S. 907 (1980); Branch wv. Fstelle, 631 F.28 1229,
1233 (5th Cir. 1980). Indeed, in United States v. Mitchell, 427
F.2d 644 (2nd Cir. 1970), the Court found harmless error notwith-
standing the prosecutor's references to details of convictions
-
introduced for the purpose of impeachment. ' Citing Harrington v.
California, 395 U.S. 250 (1969) and Chapman v, California, 386 U.S.
18, 25 (1967).
w=
For all of the aforesaid reasons, Respondent submits
that this Court should find no merit to Ground D or Ground PF
the petition.
IIT. THE TRIAL COURT'S INSTRUCTIONS DURING
THE SENTENCING PHASE OF PETITIONER'S
TRIAL SUFFICIENTLY GUIDED THE JURY'S
DISCRETION SO AS TO AVOID AN ARBITRARY
OR CAPRICIOUS VERDICT. (GROUND E).
Under his Contention E, Petitioner asserts that the
trial court's instructions during the sentencing phase of
Petitioner's trial gave the jury unlimited discretion regarding
the use of Petitioner's participation in other armed robberies.
Petitioner also contends that his death penalty has been
unconstitutionally imposed because the trial court's instructions
permitted the jury to consider nonstatutory, prejudicial
aggravating circumstances such as the aforementioned armed robberies.
In support of his position, Petitioner cites Henry v. Wainwright,
661 P.2d 55 (5th Cir. 19381). The court in Henry v. Wainwright,
held that the admission of nonstatutory aggravating factors
into evidence, and the trial court's instructions allowing
consideration of all factors which were aggravating, including
but not limited to, the statutory aggravating circumstances,
operated to deprive that appellant of his Eighth and Fourteenth
Amendment rights. The additional, nonstatutory aggravating
circumstance which was introduced during the sentencing phase -
of £hat trial consivted of testimony from an arresting officer,
who over defense objection, testified that appellant Henry had
taken the officer's gun and had wounded him in an attempt to
avoid arrest. Henry v. Wainwright, 661 F.2d at p. 57. The court
found that the combination of the admission of the evidence,
plus the judge's instructions impermissibly increased the risk
that the death penalty had been arbitrarily or capriciously
imposed. Id. at p. 60.
A review comparing the Florida and Georgia death penalty
statutes reveals several distinctions which make the rationale
of Henry inapplicable to the instant case. The Florida death
penalty statute provides that aggravating circumstances shall
be limited to nine specific factors [see Henry v. Wainwright,
supra, at p. 57; Profitt-v. Florida, 428 U.S. 242, 248, fn. 6
(1976) ]; however, atehdugh the Georgia death penalty statute
also enumerates specific statutory aggravating circumstances,
it also permits the jury to consider not only those circumstances
but also "any mitigating circumstances or aggravating circum-
stances otherwise authorized by law . . .". Ga. Code Ann.
§ 27-2534.1 (0b). In approving the Georgia death penalty
statute, the United States Supreme Court specifically recognized
that the Georgia sentencing procedure permits the consideration
of both statutory and nonstatutory aggravating circumstances;
PT before a death penalty may be imposed there must be
a finding of at least one of the ten statutory aggravating
circumstances under Ga. Code Ann. § 27-2534.1(b). Gregg v.
Georgia, 428 U.S. 153, 163-165, 197 (1976).
Georgia did act, however, to narrow the
class of murderers subject to capital
punishment by specifying 10 statutory
aggravating circumstances, one of which
must be found by the jury to exist beyond
a reasonable doubt before a death sentence
can ever be imposed. In addition, the
he 2,
jury is authorized to consider any other
appropriate aggravating or mitigating
clrcumstances. § 27-2534.1(b) (Supp. 1975).
The jury is not required to find any
mitigating circumstance in order to make
a recommendation of mercy that is binding
on the trial court, gee § 27-2302 {Supp. 1975},
but it must find a statutory aggravating
circumstance before recommending a sentence
of death.
These procedures require the jury to
consider the circumstance of the crime
and the criminal before it recommends sentence.
No longer can a Georgia jury do as Furman's
jury did: reach a finding of the defendant's
guilt and then, without guidance or divetiion,
deci do whether he should live or die. Instead,
the jury's attention is directed to the
specific circumstances of the crime: . . .
In addition, the jury's attention is focused
on the characteristics of the person who
committed the crime: . . . As a result,
while some jury discretion still exists,
'the discretion to be exercised is controlled
by clear and objective standards so 25 Ld
produce nondiscriminatory application.’
[Cit] [Emphasis in Original].
Likewise, Justices White and Rehnquist in voicing their
approval of the Georgia statutory procedures, recognized that
additional aggravating circumstances other than the statutory
aggravating circumstances were permissible for consideration
by the jury in making its weighty decision on whether or not
7
the particular defendant should be sentenced to death. Gregg
V.. Georgia, 428 U.S. at p. 211.
The aforesaid opinions recognize that there are many,
many factors which may lead the jury to impose the death
penalty, including all of the facts and circumstances of
the crime, and the individual characteristics of the °
particular defendant. However, so long as the jury is
specifically guided in its decision by limiting instructions
which inform them that before they may impose the death
penalty at least one of the statutory aggravating circumstances
must be found under Code Section 27-2534.1(b), then the risk
that their decision may be arbitrary or capricious has
been sufficiently limited to comply with constitutional
standards.
Contrary to Petitioner's assertions, the sentencing
instructions in the instant case did not give the jury
unlimited discretion in considering Petitioner's prior
criminal activities in deciding whether or not to impose
the death penalty.
Of course, in considering jury instructions, they
must be examined as a whole, and in the context of the
overall trial. United States v. Park, 421 U.S. 658, 672
(1975); Cupb v. Naughten, 414 U.S. 141, 147 (1973).
Relief in federal habeas corpus may not be granted unless
35.
the instructions were so defective so as to deprive Petitioner
of due process and a fundamentally fair trial. Henderson Vv.
Kibbe, 431 U.S. 145, 154 (1977); Cupp v. Naughten, supra,
Bryan v. Wainwright, 588 F.2d 1108, 1111 {5th Cir. 1979).
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). Neither the defendant nor the state
presented any additional evidence during the sentencing portion
~ of the trial. (T. 1010). As previously noted, the trial
court's aforesaid instructions should not be considered in
isolation, but should be considered along with the others
given by the trial court. The court had also given previous
instructions to the jury that it should consider evidence
of the Red Dot“robbery only for purposes of showing motive,
identity, plan or scheme, and had instructed that evidence
of Dot's Produce robbery was to be utilized only for impeach-
ment purposes. (T. 673-674; 885).
Contrary to Petitioner's arguments, it was not improper
for the jury to consider Petitioner's prior convictions. In
Gregg v. Georgia, supra at p. 189, quoting Pennsylvania v. Ashe,
the court recognized that, "[flor 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,
-26-—
Ga. Code Ann. § 27-2503 provides for a presentence hearing
in Georgia's bifurcated death penalty procedure which presents
a defendant's history to the jury so that it may make the
proper decision as to punishment. See 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 glven 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 offered as a basis for
imposition of an enhanced sentence. Spencer v. Texas, 385
U.S. 554, 550 £1967).
Ga. Code Ann. § 27-2503 further provides that, "[u]lpon
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 Code § 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 doubt before a death penalty may be imposed.
Ga. Code Ann. § 27-2534.1(b). Here, the challenged instruction
ei
permitted the jury 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 (1973). Thus, the evidence of Petitioner's
prior convictions was properly before the jury during sentencing.
This in no way rendered Petitioner's sentence capricious
or arbitrary, so long as the jury was properly instructed,
as it was in this case, 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. Here, the jury was carefully instructed
on the proper consideration of both 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 it would have to find,
beyond a reasonable dsubi:, that either the murder was committed
while the Petitioner as engaged in the commission of 2% armed
robbery, or that the murder was committed against a peace
officer while he was engaged in the performance of his official
duties. : [See Ga. Code Ann. § 27-2534.1(b){2) and (HY (8)].
The jury was instructed on the definition of mitigating circumstances,
and was specifically told that it was not mandatory that a death
penalty be imposed even if one of the aggravating circumstances
existed. (T. 1028-1029).
Although Petitioner asserts that it was erroneous for
the prosecution to include evidence of Petitioner having
received three concurrent life sentences So his Douglas County
convictions, when said sentences were later set aside upon
the granting of a motion for a new trial and concurrent 18 year
sentences were imposed in their place pursuant to a plea of guilty;
De
nevertheless, this Court may initially surmise from the
record that there was no objection to the introduction of
the convictions and sentences. (T. 854-855). It has been
held that a failure to object to a violation of Ga. Code
Ann. § 27-2503 operates as a waiver. Wilcox v. State,
153 Ga. App. 719, 720, 266 S.E.24 356 (13580); Momg vv. State,
159 Ga. App. 317, 319, 238 8.BE.2¢ 257 (19817. Petitioner's
trial counsel was called as a witness at the state habeas
proceeding; however, no testimony at all was elicited pertaining
to his failure to object to the introduction of the convictions,
although Petitioner had a full and fair opportunity to present
evidence on the issue. Under Sah circumstances, Yetitioney
has failed to meet the burden of showing cause and prejudice
under Wainwright v. Sykes, 443 U.S. 72 (1977). See Tyler v.
Phelps, 643 #.28 1095, 1102 (5th Cir. 1981). Purthermore,
in light of Petitioner's testimony at trial that he actually
had TECRlVEE an eighteen year sentence, (T. 845), and in
light of the corrected sentence having been introduced,
Respondent submits that Petitioner has not shown any prejudice.
For all of the aforesaid reasons, this Court should find
that Petitioner's Ground E is unmeritorious.
IV. THE PROSECUTOR'S CLOSING ARGUMENTS
TO THE JURY DID NOT DENY PETITIONER
A FUNDAMENTALLY FAIR TRIAL. (GROUND L).
Under Ground L, Petitioner argues that the prosecutor's ~
closing arguments during the sentencing phase of Petitioner's
trial made impermissible references to the appellate process
in Georgia, and erroneously informed the jury that they could
~ 20
consider three invalid life sentences in their deliberations.
In order to justify the granting of 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 and sentencing
fundamentally unfair. "Donnelly wv. DeChristoforo, 416 U.S. 636,
643 (1974); Jones v. Estelle, 622 F.24 124, 127 (5th Cir. 1980).
The statements must be considered not in isolation, but in
the context of the entire trial including all of the closing
argument. Branch v. Egtelle, 631 7.24 1229, 1233 (5th Cir.
1980); Houston v. Estelle, 622 FP.24: 124, 127 (5th Cir. 1978).
It is cleax that under Georgia law [Ga. Code Ann. § 27-2206]
no attorney may argue in the presence of the jury that if convicted,
the defendant may not be required to suffer the full penalty
imposed, because of pardon, parole or clemency of any nature.
The challenged portion of the district attorney's argument is
listed on pages 1019-1020 of the trial transcript, and on pages
25-26 of Petitioner's brief. They need not be repeated at this
point. Here, the district attorney was simply arguing that
the protection of the community justified the need for the
death penalty in this case. It is not improper under Georgia
law for the prosecutor to argue for the implementation of the
death penalty or to give plausible reasons for its infliction.
Chenault v, State, 234 Ga. 216, 215 8.E.24 223 (1975); Strickland
wv, State, 209 Ga. .675(2), 75 8.8.24 6 (1953). The Petitioner
had an extensive, past history of violent crime, had an opportunity
to change his life and set commendable goals. However, he main-
tained his old ways, thus causing the death of an innocent Atlanta
Police Officer. A reading of the district attorney's argument
shows that he did not erroneously stress the three life sentences,
30
but was simply attempting to show the jury that although Petitioner
had received life sentences, these sentences were reduced to
18 years, and after serving his time, Petitioner had another
chance, but he did not take advantage of it. Similar arguments
have been approved in other death penalty cases. See Spraggins
V. State, 243 Ga. 72, 74, 252 3.B.24 494 (1979); Redd v. State,
242 Ga. 876, 880, 252 8.8.24 383 (1979).
Additionally, a review of the record in this case again
shows no objection by defense counsel to the prosecutor's
arguments. The failure to raise an objection operated as a
waiver. Jones v. State, 243 Ga. 820, 827, 256 S.E.2d 907 (1979),
cert. den., 444 U.S. 957. (1979); Bdwards v,. State, 224 Ga. 684,
164 S.E.2d 120 (1968). As noted previously, Petitioner's trial
counsel did testify at the state habeas proceeding; however,
no testimony was elicited as to his failure to object to the
prosecutor's closing statements, and thus, Petitioner has failed
to show any cause or prejudice as required by Wainwright v. Sykes,
supra. Under such circumstances, federal habeas corpus relief
should be denied. Tyler v. Phelps, supra.
Thus, since the prosecutor's statements were not a comment
upon the appellate process in this case, and since the prosecutor
was not referring the jury to the invalid life sentences as an
aggravating circumstance, and finally, since the failure to
object to the argument operated as a waiver, this Court should
find no merit to Ground L of the petition.
3
V... THE TRIAL COURT PROPERLY ADMITTED
PETITIONER'S CONFESSION INTO EVIDENCE.
(GROUND N).
Under Ground N, Petitioner asserts that his statement
which was introduced at trial (T. 506, et seq.), was involuntary.
Petitioner cites only his own testimony in support of this
contention. {r. 822, 823).
The Georgia Supreme Court examined this issue on direct
appeal, and found no merit to Pet’ticner's assertions holding
that his confession was freely and voluntarily given. McCleskey
Vv. State, supra ab p. 112.
At trial, and prior to the introduction of Petitioner's
statement, the trial court held a Jackson v. Denno hearing,
and concluded that Petitioner's statement was freely and
voluntarily given. (T. 426-505),
During the hearing it was established that Lieutenant
W. K. Perry and Sergeant McConnell of the Atlanta Police
Department had traveled to Marietta, Georgia on May 31, 1978,
in order to transport the Petitioner to Atlanta. (T. 477).
Upon being taken into custody the Petitioner was advised of
his full Miranda warnings. (T. 479). During the drive back
to Atlanta, Petitioner engaged in a conversation with Lieutenant
Perry wherein he proceeded to deny shooting Officer Schlatt,
but where he also admitted his full participation in the robbery.
(T. 480-481). Lieutenant Perry stated he did not threaten
Petitioner nor promise him anything to induce the statement.
(T. 482-482).
-32-
AA Sn i RN He rt
Upon arriving at the Atlanta Police Department; Lieutenant
Perry told Detective Jowers that the Petitioner wanted to make
a statement. (T. 42). The statement given to Lieutenant Perry
was essentially the same as that related to Jowers. (T. 480).
Upon being informed by Lieutenant Perry that Petitioner
wanted to make a statement, Detective Jowers had the Petitioner
execute a written waiver of counsel. (T. 428-430). The
waiver included full Miranda warnings, and a statement that
no threats or promises had been made to induce Petitioner's
signature. (T. 429-430).
The only people in the room at the time the confession
was taken were Detective Jowers; the typist, Ms. Margene Turner;
Detective Harris; and Sergeant Sturgis (who simply entered
and left the office at various intervals on other business).
A second typist, Officer Patricia A. Offutt was also present
after Ms. Turner had been relieved from duty. (T. 428, 458,
487, 488, 492, 497). As noted previously, in this statement to Jowers
Petitioner also admitted his full participation in the robbery,
but denied shooting Officer Schlatt. {T. 436-437). Petitioner
had a full opportunity to read the entire statement before
signing it. {T. 461),
The atmosphere surrounding the interview was relaxed
and designed to make the Petitioner feel at ease. {T. 434, 473).
This was corroborated by the testimony of Ms. Turner. (T. 491-495).
>
Ms. Turner observed that no one had threatened the Petitioner,
and in fact, the atmosphere was friendly. {T. 401,792,
797). Likewise, Officer Offutt testified she observed no threats
or coercion during the questioning. (T. 500).
-33-
The voluntariness of a confession need only be established
by a preponderance of the evidence. Lego v. Twomey, 404 U.S.
477, 489 (1972). In determining whether the state has met
this burden, the court must look to the totality of the circumstances.
Clewis v. Texas, 386 U.S. 707 (1967). A review of the totality
of the c’'rcumstances in this case amply shows that Petitioner's
statements were freely, voluntarily and intelligently made
and therefore properly admissible. Jackson v. Denno, 378 U.S.
395 (1964). Thus, this Court should find no merit to
Ground N of the petition.
ws 3h
Vi. THE TRIAL COURT PROPERLY EXCLUDED
FOR CAUSE TWO JURORS AT PETITIONER'S
TRIAL WHO HAD EXPRESSED UNYIELDING
OPPOSITION TO CAPITAL PUNISHMENT,
AND SAID EXCUSAL NEITHER DEPRIVED
PETITIONER OF A JURY COMPOSED OF
A REPRESENTATIVE CROSS SECTION OF
THE COMMUNITY, A JURY SUFFICIENTY
ATTUNED TO COMMUNITY VALUES, NOR AN
IMPARTIAL UNBIASED JURY. (Ground 0).
~ Under Ground O in the petition, Petitioner claimed that
the trial court improperly excused two prospective jurors
without adequate voir dire examination. Apparently, Petitioner
has attempted to amend his petition by adding additional
arguments in his brief which has been submitted to the Court.
In the brief under claim O, Petitioner additionally contends
that the Scial for cause of two jurors because of their
opposition to capital punishment denied Petitioner his right
to a jury drawn from a representative cross section of the
community, denied Petitioner a jury which maintained a link
between contemporary community values and the penal system,
and finally created a jury which was prosecution prone.
All of the contentions are unmeritorious.
Petitioner claims jurors Weston and Cason were improperly
excluded for cause, because the trial court did not sufficiently
determine that the jurors retained an unyielding opposition to.
capital punishment. The voir dire of these prospective jurors
is reflected on pages 96-99 and 128-130 of the trial transcript.
Both jurors expressed that they could not impose the death
penalty, regardless of the facts and circumstances which might
emerge in the course of the proceedings. Therefore, they were
-35-
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); and Adams v. Texas, 448 U.8. 38 (1980).
Contentions such as those raised by the Petitioner which
assert that he was denied a representative cross section of
the community, a fair and impartial jury, and that the exclusion
of death scrupled jurors created a prosecution prone jury
were argumen’s that have been considered and rejected in
Spinkellink v. Wainwright, 578 F.2d 582, 593-599 (5th Cir.. 1973),
cert. den., 8.8. , 99 Sup.Ct. 1548 (1979) and in Smith v.
Balkcom, 660 F.2d 573 (1981).
For the aforesaid reasons, this Court should find no
merit to Ground O of the petition.
“36
VII. THE STATE DID NOT IMPROPERLY FAIL
TO DISCLOSE IN VIOLATION OF BRADY V.
MARYLAND, 373 U.S. 83 (1963), A
MATERIAL, FAVORABLE STATEMENT MADE
BY THE PETITIONER. (Ground Q).
Under Ground Q, Petitioner has argued in his brief
that the prosecution erroneously failed to disclose Prior
to Petitioner's trial, a statement that Petitioner had made
to one Offie Evans while Petitioner and Evans were incarcerated
in the Fulton County Jail. Petitioner contends the prosecution
had a duty to disclose such statement, because of its potential
use for impeachment purposes.
During rebuttal testimony for the State at Petitioner's
trial, Mr. Offie Evans was called as a witness and testified
to various conversations he had with the Petitioner while they
were both incarcerated at the Fulton County Jail. (T. 865-371).
On direct Sizmination, Evans related that Petitioner had told
him Ben Wrights' girlfriend, Mary Jenkins, had helped him with
a disguise. (T. 871). Defense counsel elicited on cross -
examination that the alleged disguise consisted Of a scar
and some pimples. (T. 877). Previously, on cross-examination
of State's witness Mary Jenkins, defense counsel had questioned
her as to whether or not on the any of the robbery the Petitioner
had a scar on his face, pimples, or rough facial features. »
Ms. Jenkins replied that he did not. (T. 629-630).
It appears clear from the transcript that the prosecution
had opened its file to defense counsel, except for Mr. Evans’
statements and some testimony which had been before the grand
jury. (T. 176, 831-832). Although Petitioner asserts that
prior to trial defense counsel had filed a Brady motion seeking
all statements made by the Petitioner; nevertheless, a review
of the record reflects only a motion for a list of witnesses
to all conversations between law enforcement officials and
Petitioner McCleskey. (See R. 29). It should be noted that
indeed, the Petitioner was supplied with a list of Witnesses
which included the name of Offie Evans. (R. 36-37). Petitioner
had an opportunity to interview Mr. Evans concerning his
prospective testimony.
Even assuming that Petitioner had filed a valid Brady
motion, the State would have been under no obligation to
furnish defense counsel with a copy of Petitioner's prior
statements to Mr. Evans. Brady and Moore v. Illinois, 408
U.S. 786 (1972) held that due process was violated where
the prosecution suppressed requested evidence which was
favorable to the accused and material to either guilt or
punishment. The successful establishment of a Brady violation
requires proof of (a) suppression by the prosecution after
request by the defense; (b) evidence of a favorable character
for the defendant; and (c) materiality of the evidence withheld.
Moore v. Illinois, at p. 794-795; United States v. Delk, 586
P.2d 513, 518 (8th Cir. 1978).
The materiality of the evidence allegedly withheld is
important, because "Brady is not a discovery rule, but a
rule fairness and minimal prosecutorial obligation." United
States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1878), cert.
den., 440 U.S. 947 (1979). The level of materiality which
must be established varies from case to case. In United States v.
Agurs, 427 U.S. 97 (1976), the Court announced three tiers of
materiality.
For example, in cases where the prosecution has knowingly
utilized perjured testimony, the conviction must be set aside
if there exists a reasonable likelihood that false testimony
could have affected the jury's verdict. Where a pretrial
request has been made for specific evidence, the judgment
must be vacated where the suppressed evidence might have
affected the outcome of the trial. Finally, where there is
a general request under Brady or no request at all (such as
the situation in this case), the test is whether the ommitted
evidence creates a reasonable doubt as to the defendant's
guilt that did not otherwise exist. XG. at'p. XY2,
This Court may initially note that it would have been
highly unlikely for the defense to utilize, in any way,
Mr. Evans' testimony in the cross-examination of Mary Jenkins.
The defense was trying to elicit from Ms. Jenkins, and aid
elicit, that the Petitioner did not have scars, bumps or
pimples on the day of the robbery. Of course, Mr. Evans’
testimony pertaining to the Petitioner's statement was directly
contrary to this. and tended to show that Petitioner did
prepare a disguise. It certainly would have been foolish
for defense counsel to attempt to point this out on the
cross-examination of Mary Jenkins.
Since Petitioner has not shown that the prosecutor
wihheld a favorable, material statement which would have
created a reasonable doubt as to the defendant's gullt that
did not othewise exist, this Court should find no merit to
the arguments set out under Ground Q of Petitioner's brief.
~30
VI1l. REVIEWING THE EVIDENCE IN A LIGHT
MOST FAVORABLE TO THE GOVERNMENT,
IS CLEAR THAT THE EVIDENCE WAS
SUFFICIENT TO SUPPORT PETITIONER'S
CONVICTION FOR MALICE MURDER BEYOND
A REASONABLE DOUBT. (Ground R).
Under Ground R, Petitioner claims that the evidence
presented at the trial was insufficient to prove that the
Petitioner was the triggerman who shot victim Frank Schlatt,
and that the shooting constituted malice murder. Petitioner
does not argue that the evidence was insufficient to support
his conviction for armed robbery.
As a part of its review in this case, the Georgia Supreme
Court automatically examined the sufficiency of the evidence
and fond that the evidence factually substantiated and supported
a finding of the aggravating circumstances and Petitioner's guilt
beyond a reasonable doubt. McCleskey v. State, supra at Pp. 115,
Upon review of the sufficiency of the evidence supporting a
State conviction, a fedearl habeas corpus court must view the
evidence in a light most favorable to the State, and should
sustain the jury's verdict unless it finds that no rational
trier of fact could find the defendant guilty beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
As Petitioner has noted, the actual murder weapon was
not recovered. The State's theory of the case, placed the
Petitioner in front of the Dixie razniture Store, carrying a
nickel-plated .38 caliber Rossi revolver when Atlanta Police
Officer Frank Schlatt arrived at the scene. Petitioner's
co-defendant, Ben Wright, testified that during the robbery
Petitioner was carrying the .38 caliber nickel-plated revolver,
-d
co-defendant Dupree was carrying a .25 caliber revolver,
co-defendant Berney was carrying a .38 caliber snubbed-nose,
blue-steel, revolver, and Wright was carrying a sawed-off
shotgun. (T. 449-453). Witness Paul Ross, Manager of the
Red Dot Grocery Store testified that a -38 caliber nickel-plated
revolver was taken from him by the Petitioner during a prior
robbery of his store. {'e. 725, 727«728). "this was corroborated
by the testimony of Ben Wright. (7, 672, 675, 680). Wright
described the gun as being nickel-plated, with a gold and white
handle. (T. 680). Although Wright admitted that he had utilized
the gun on some Occasions (T. 682), he stated definitely that
the Petitioner was carrying it during the robbery of the Dixie
Furniture Store. {T. 649).
Wright also testified that during the rolbarY, he, Dupree
and Berney entered the rear of the store near the loading dock,
while the Petitioner entered the front of the store. Wright
was carrying a sawed-off shotgun and carrying a black leather
jacket. (T. 650-651, 653-654, 656). Classie Barnwell and
Mamie Thomas, employees of the furniture store who were in
the Front office, positively identified the Petitioner as the
robber who came through the front door of the store carrying
a silver gun. (TT. 213, 232-233, 242, 289-290, 295-298). Ben
Wright testified that during the course of the robbery, he,
Dupree and Berney remained in the back of the store and had
begun to tie up the employees, who they were holding at gun
point when the shots were fired. (T. 656-657). Wright stated
he was standing with a shotgun keeping the victims at bay in ;
the back of the store while Berney and Dupree taped them. {14.)
Store Manager Ronald Dukes verified that three of the robbers
came through the back of the store, and held he, Ben Tyson,
James Grier, Dan Oliver, and a Mr. Nelson at gunpoint. (T. 198-199,
201). The testimony of Dukes supported Wright's statement that
wd}
three of the robbers were at the back of the store when the
gunshots were fired. (T. 199-200). One of the robbers had
taken his watch. (T. 199, 204-205). Ben Wright had previously
testified that he had taken Mr. Ross’ watch, and later threw
it on top of an apartment house to prove that he was not at
the front of the store and did not kill Officer Schlatt. (T. 663-
665, 696).
Dan Oliver, who was also in the back of the store on the
loading dock, stated he was accosted by a robber carrying a
shotgun and a black jacket. (T. 266, 276, 280). After the
robbers forced the victims who were in the back of the store
to lie down in the storage room, the man with the shotgun stood
near Ronnie Dukes in front of the group, while the two remaining
robbers in the storeroom stood behind arguing about the tape
which was used on the victims. (T. 268-282). When the shots
were fired, Oliver heard footsteps running, but he could not
tell how many people were running. (T. 269, 280).
Edward New testified that he was in an automobile with
his wife in front of the Dixie Furniture Store, when they
saw Officer Schlatt arrive, draw his gun and enter the store.
(T. 330). Shortly after the shots were fired New observed a
black man running from the store carrying a white handled-pistol.
(7. 331-333).
Following the shooting of Officer Schlatt, Petitioner and
his co-defendants ran to their automobile. Ben Wright testified
that at this point Petitioner admitted that he had shot Officer
Schlatt when Schlatt entered the store. Petitioner had been
behind a sofa. As Schlatt walked by carrying his gun, Petitioner
told him to freeze. When he turned around the Petitioner shot
him. 7. 658, 661).
wld
Witness Offie Evans, who had been incarcerated in the
Fulton County Jail with the Petitioner following Pesiitonorts
arrest, testified that Petitioner also admitted to him that
he had shot Officer Schlatt. (T. 869-870). Evans overheard
Petitioner also say that even if there had been several policemen
present, he would have shot his way out. (T. 871, 280).
In Petitioner's statement tc the police, he admitted
participating in the robbery, but denied shooting Officer
Schlatt. (See T. 511-530). In his statement, Petitioner
stated that during the robbery Ben Wright was carrying a
shotgun. {T. 517}. He thought Dupree was carrying a .22
caliber pistol, did not know what weapon Bernie was carrying,
and stated that he was carrying a .22 caliber brown-handled
black revolver. (T. 528). Petitioner admitted that he ran
out the front door after the robbery. {T. 526).
At trial, Petitioner tendered a very weak alibi defense,
stasing that he Rad been playing cards in Marietta at the time
of the robbery. (7. 809-811). He named several people who
were present with him; however, none were called as witnesses
for his defense. Petitioner also stated that Ben Wright had
borrowed his car on the day of the robbery and did not return
it until 4:00 p.m., and at that time Wright admitted robbing
the store and utilizing Petitioner's auto. (T. 811-812).
Petitionerdenied admitting to Lt. Perry that he had participated
in the robbery, and stated that he had made false statements to
Detective Jowers of the Atlanta Police, because he was informed
of the evidence which the police had against him, the description
of his car, because of his prior convictions, and because he did
not have a good alibi. (T. 823-824).
Based on the aforesaid, and including the totality of
the evidence as reflected in the transcript, Respondent
respectfully submits that the evidence showing the Petitioner
committed the malice murder of Officer Schlatt was adequate,
and indeed was overwhelming. Thus, this Court should find no
merit to Ground R of the petition.
CONCLUSION
The aforesaid arguments were in response to Petitioner's
memorandum of law in support of the issues which he asserts
justifies granting of the writ without an evidentiary hearing.
Since it is clear from the record before this Court that none
of the issues have merit, they may be similarly dismissed
without the need for an evidentiary hearing. Blasingame v.
Estelle, 604 F.2d 893, 895 (5th Cir. 1975); Baldwin v. Blackburn,
653 F.2d 942, 946-947 (5th Cir. 1981); Brown v. Jernigan, 622
F.24 914, 916 (5th Cir. 1980).
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
ROBERT 8. STUBBS, II
Executive Assistant
Attorney General
EE WRERAR ARTS
. MARION O. ign TR
a Senior Assistant
Attorney General
Please serve: AN ed ;
CAE _—
NICHOLAS G. DUMICH Senior sistant
132 State Judicial Bldg. C pte General
40 Capitol Square, S.W. 7. / / 4
Atlanta, Georgia 30334 leds A LELP)id
(404) 656-3499 NICHOLAS G. DUMICH
Assistant Attorney General
ng ¥
CERTIFICATE OF SERVICE
This is to certify that I have this day served a true
and correct copy of the attached brief upon counsel for
Petitioner by placing same in the United States Mail, wiih
sufficient postage affixed thereon and addressed to:
Robert H. Stroup
1515 Healey Bldg.
Atlanta, Georgia 30303
N oh
This(C/)/ day of April, 1982.
Mickileol Ue isi
NICHOLAS G. DUMICH
Counsel for Respondent
Ee
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IN THE UNITED STATES DISTRICT CQURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
VS. NO. C81-2434A
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITIONER'S MEMORANDUM OF LAW IN SUPPORT
OF ISSUANCE OF THE WRIT.
INTRODUCTION.
Comes now the Petitioner, WARREN McCLESKEY, and files this
Memorandum of Law in support of the issuance of the writ on prove
constitutional issues raised herein as to which petitioner does
not seek an evidentiary hearing. This memorandum is submitted
pursuant to this Court's Order of March 17, 1982. This
memorandum is submitted contemporaneously with petitioner's
motion and supporting memorandum for an evidentiary hearing.
STATEMENT OF FACTS.
Petitioner was arrested on May 30, 1978, by Powder Springs
(Cobb County) Police, accompanied by City of Atlanta Police
Officers (Trial Tr. 350). He was arrested on an arrest and
search warrant issued by a Cobb County Magistrate for an armed
robbery of a Power Springs grocery store which occurred more than
two and a half months earlier, on March 11, 1978.
Shortly after his arrest, he was questioned by City of
Atlanta Police regarding the armed robbery of the Dixie Furniture
Store in Atlanta on May 13, 1978, and the shooting of Atlanta
Police Officer Frank Schlatt during the course of that robbery.
While in police custody in Atlanta the next day, petitioner
made a statement to police, indicating his presence at the Dixie
Furniture Store at the time of the robbery, but denying that he
was the triggerman who killed Officer Schlatt.
Petitioner's family retained the services of Attorney John
Turner, who represented McCleskey at his preliminary hearing on
June 7, 1978, and at his trial on October 9-12, 1978. McCleskey
was incarcerated at the Fulton County Jail from the time of his
arrest until his trial in October.
The State sought the death penalty against McCleskey, on the
theory that he was the triggerman who killed Officer Schlatt.
The death penalty was not sought against any of the three co-
defendants, two of whom were tried and sentenced to life, and
the third of which was allowed to plead guilty to a reduced
charge of voluntary manslaughter and sentenced to twenty years.
No murder weapon was ever recovered. No eyewitness testifi-
ed to the actual shooting. The State's theory that McCleskey was
the triggerman, rather than one of the other co-defendants, was
based upon the State's view that (1) the murder weapon was
probably a .38 Rossi; (2) that McCleskey had used a .38 Rossi on
other Cos ions a sat (3) that the officer was shot by someone
who was in the front of the store, and McCleskey had entered from
the front of the etire
McCleskey's trial counsel John Turner, recognized that,
although his client asserted an alibi defense, an alternative
defense was available - that other co-defendants were in the
front of the store at the time of the shooting. Turner tried to
develop this defense through cross-examination of the witnesses
called by the State.
At trial, the State offered the petitioner's statement that
he was present at the Dixie Furniture Store during the robbery.
To show intent and malice, the State offered the testimony of co-
defendant Ben Wright and of Offie Evans, a prisoner held in Fulton
County Jail on escape charges pending from a federal sentence he
was then serving.
1/
"Wright himself testified to having carried the same weapon on
occasion.
2/
“Wright's own trial testimony shows that he, too, had the oppor-
tunity to shoot the officer (Tr. 709). Evidence available to
defense counsel, but not introduced at trial confirmed that at
least some of the co-defendants went from rear to front of the
store prior to the shooting.
wD
Additional facts related to each of the constitutional
grounds asserted herein shall be incorporated within the argument.
ARGUMENT.
CLAIM "C"
THE TRIAL COURT'S CHARGE ON PRESUMPTION
OF INTENT CONTRAVENED THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.
1. Unconstitutionality.
The Supreme Court held in In Re Winship, 397 U. S. 358,
364 (1970):
"Lest there remain any doubt about the con-
stitutional stature of the reasonable doubt
standard, we explicitly hold that the Due
Process Clause protects the accused against
conviction except upon proof beyond a reason-
able doubt of every fact necessary to con-
stitute the crime with which he is charged."
Subsequently, in Mullaney v Wilbur, 421 U. S. 684
(1975), the Court held that a trial court instruction that shifted
the burden to the defendant to disprove the element of "malice
aforethought" necessitated reversal of a defendant's murder con-
viction. Though defendant Wilbur had given a statement to police
and had offered no evidence at trial, his counsel "argued that the
homicide was not unlawful since [Wilbur] lacked criminal intent,"
and his conduct had thus constituted manslaughter at most,
Mullaney v. Wilbur, supra, 421 U. S. at 685. Wilbur challenged
the instruction in habeas corpus proceedings as one which uncon-
stitutionally shifted the burden of proof to him on that issue.
Relying heavily on Winship, the Court accepted Wilbur's
argument. The charge, it found
"affirmatively shifted the burden of proof
to the defendant. The result, in a case
like this one where the defendant is required
to prove the critical facts in dispute, is to
increase further the likelihood of an erroneous
murder conviction." 1Id., at 701.
In Sandstrom v. Montana, 442 U. S. 510 (1979), the
Supreme Court directly confronted the validity of an instruction
which would authorize a jury to presume intent from a defendant's
acts. Defendant Sandstrom had been charged with the brutal
murder of an elderly woman. The police had obtained a confession
from Sandstrom, Sandstrom v. Montana, supra, 442 U. S. at 512,
-3-
and his defense counsel informed the jury at trial that Sandstrom
had admitting killing the victim. Id. The only issue for the
jury was whether Sandstrom possessed the requisite mental state
at the time of the crime necessary to constitute "deliberate
homicide" under Montana law.
The trial court charged the jury that:
"[T]lhe law presumes that a person intends
the ordinary consequences of his volun-
tary acts.” 148.
Sandstrom was convicted, and the Supreme Court of Montana affirm-
ed.
The United States Supreme Court granted certiorari and
reversed. The Court reasoned that a juror might have interpreted
the instruction as either a "conclusive" presumption -- offering
the jury no choice but to find intent once it established the
underlying acts -- or as a "permissive" presumption -- that is,
"a direction to find intent upon proof of the defendant's
voluntary actions. . . unless the defendant proved the contrary
by some quantum of proof." Id. at 517 (emphasis in original).
The charge given in this case runs Gountas to the
Supreme Court standards enunciated in Mullaney, supra, and Sand-
strom, supra.
The Fifth Circuit, in Tyler v. Phelps, ‘622 F. 24 172
(5th Cir. 1980), vacated on other grounds, 643 F. 2d 1095 (5th
Cir. 1981), found constitutionally infirm a charge similar to the
one at issue in this case. In Tyler v. Phelps, supra, (like this
case) there was an issue at trial both as to (1) whether or not
the petitioner had actually fired the pistol; as well as (2) if
so, whether the requisite intent required under the statute
existed. 18., at 175, fn. 2.
In this case, the charge was critical, because the
jury returned a verdict of malice murder, although they had the
choice of returning a felony murder verdict. A proper charge,
which did not cast the burden onto the petitioner with respect
to this element of the crime, might have resulted in a felony
murder conviction, or no conviction whatsoever, as opposed to the
4 »
malice murder verdict. C£. Holloway v. McElroy, 632 F. 24 605, at
617 (5th Cir. 1980) ("Had the jury found Holloway guilty of
malice murder, the trial court's instructions on malice would
certainly have been relevant").
A panel of the Fifth Circuit, Unit B, recently applied
the principles of Mullaney and Sandstrom to a jury instruction
based upon the same language as used by the trial court herein.
Mason v. Balkcom, F. 28 + No. 80-7344 (5th Cir., March i,
1982).
This Court in McCorquodale v. Balkcom, No. C79-95A
(per Evans, J.), (N. D. Ga., October 21, 1981) held that
as to precisely the same charge on intent:
"The objected-to charge is quite similar to
those struck down in Sandstrom and Tyler,
(fn. omitted). After Sandstrom, the Georgia
Supreme Court specifically disapproved its
further use in Georgia courts. Hosch v. State,
246 .Ca, 417,27) 8S. BE. 24 817 (1980). . If the
language of the charge is the controlling
factor here, petitioner's attack may well be
meritorious. However, the Court finds that
under the somewhat unique facts presented here,
the language of the charge is not the controlling
consideration."
(Order, at pvp. 11).
Those "somewhat unique facts" are not present herein.
Rather, the decision of the Court in McCorquodale, when taken to-
gether with the Fifth Circuit's decisions in Tyler v. Phelps,
622 FP. 24 172, at ‘175, vacated and aff'd. on other grounds, 643
FP. 28 1095 (5th Cir. 1981), and Mason v. Balkcom, ¥. 28
S———
No. 80-7344 (5th Cir., March 1, 1982), makes clear that the charge
contravened Sandstrom and Mullaney.
2. Retroactivity.
Although the United States Supreme Court has never
addressed the question of retroactivity of Sandstrom, supra, the
Fifth Circuit has previously indicated that a charge similar to
the one used by the Court herein would violate Mullaney, supra.
Tyler v. Phelps, 622 F. 24, at 175, n. 4. The decision in Mul-
laney preceded the petitioner's trial by more than three years.
Alternatively, the Supreme Court has repeatedly held
that the constitutional principles upon which Sandstrom is
based, require retroactive application. The Supreme Court
decision in In Re Winship, supra, was given retroactive applica-
tion in ivan v, City of New York, 407. U. 5. 203, 32 1. rd. 24
659 (1972) and Mullaney v. Wilbur, supra, was given retroactive
application in Handerson v. North Carolina, 432 U. S. 233, 53 L.
Ed. 2d 306 (1977). There is no reason why the rationale of those
Supreme Court cases does not apply with equal force to Sandstrom,
supra. Accord, Holloway v. McElroy, 474 F. Supp. 1363 (N. D. Ga.
1979), aff'd. on other grounds, 632 P. 248 605 (5th Cir. 1980).
The Pifth Circuit in Mason v, Balkcom, supra, applied
the principles of Sandstrom and Mullaney to a jury instruction
given at Mason's ..° trial in January, 1975, which was long
prior to Sandstrom. Finally, the Eighth Circuit held Sandstrom
to have retroactive application in Dietz v. Solem, 640 F. 24 126
(8th:Clx. 1981).
3. Harmless Error.
Nor can it be said in this case that the challenged
instruction was simply a matter of harmless error. Petitoner
submits initially that there is never harmless error under
Sandstrom. The Supreme Court in Sandstrom, supra, reserved the
issue of harmless error, 442 U. S. at 526-27, remanding to the
Montana Supreme Court on that issue. The Montana Supreme Court
subsequently held the error not to be harmless and directed a
new trial. State v. Sandstrom, Mont. 1: 603: 2, 2d 244,
245 (1979).
The Supreme Court has recently granted certiorari in
Connecticut v. Johnson, U. S. y 50 0. S.: 1... W. .3648
(February 23, 1982) (No. 81-927) to decide whether a Sandstrom
error "should have been analyzed for harmlessness under Chapman
v. California. . .and if so, [whether the] error was harmless
beyond [a] reasonable doubt?"
The Fifth Circuit opinion in Hammontree v. Phelps, 605
F. 2d 1371, at 1380 (5th Cir. 1979) comes very close to holding
that Sandstrom error can never be harmless. Such a holding would
be fully consistent with Chapman v. California, supra, 386 U. S.
at 22, which cautioned "not to treat as harmless those constitu-
tional errors that 'affect substantial rights' of a party,” I4.,
at 23, and stated that "there are some rights so basic to a fair
trial that their infraction can never be treated as harmless
error." 34.
Instructions to the jury on the elements of a crime,
and on which party must bear the burden of proving those ele-
ments, are clearly matter "basic to a fair trial." The Supreme
Court itself has in the past suggested that an erroneous or
equivocal instruction to a jury on "a basic issue" in a criminal
case can never be "one of those 'technical errors' which 'do not
affect the substantial rights of the parties." Bollenbach v.
United States, 326 U. S. 607, 614 (1946); see, e.g., United
Brotherhood of Carpenters & Joiners v. United States, 330 U. S.
411-12 (1946). Moreover, the inevitable effect of such an
erroneous instruction, by shifting the burden of proof to the
defendant, is to deprive him of the presumption of innocence on
that issue. The presumption of innocence has been described as
"that bedrock 'axiomatic and elementary' principle whose 'en-
forcement lies at the very foundation of the administration of
our criminal law." In re Winship, 397 U. 8S. 358, 363 (1970),
quoting Coffin v. United States, 156 U. S. 432, 453 (1895); see
Taylor v. Kentucky, 436 U. S. 478 (1978); Estelle v. Williams,
425 U. S. 501, 503 (1976) ("The presumption of innocence, al-
though not articulated in the Constitution, is a basic component
of a fair trial under our system of criminal justice.") The
presumption "extends to every element of the crime," Morisette wv.
United States, 342 U. S. 246, 275 41952), and the fact that a
defendant may have committed the act alleged does not deprive
him of the presumption of innocence on the mental state which
affects the degree of culpability. See, e.g., Mullaney v.
Wilbur, 421 U. S. 684, 698-99 (1975).
Even if a harmless error standard is applicable, it
simply cannot be said that the charge was harmless error beyond
a reasonable doubt.
As noted, supra, the jury could have returned a felony
murder, as opposed to malice murder, verdict. Further, it would
appear that the jury had some questions about the intent, or
malice aforethought, question, as the jury returned to ask the
Court to repeat the malice murder instruction (Tr. 1007-08);
1084).
If one looks to the arguments to the jury, as the con-
curring opinion in Mason v. Balkcom, supra, suggets is appro-
priate to determine harmless error, it is clear that the
defendant was harmed by the trial court's instructions.
As the prosecution argument in this case shows, the
State relied primarily upon the testimony of Ben Wright and
Offie Evans for proving that petitioner acted with the requisite
malice aforethought. The District Attorney's malice aforethought
argument was as follows:
"That is what I want you to believe, and
that is why Ben Wright was put on the stand,
and that is where the conversation comes in
at that car, that they get in the car and they
ask what happened, McCleskey says the police
slipped up on him. He says he saw the car
pull in, and if he saw the car pull in then
the police didn't slip up on him, he could have
gotten out of the back door just like the other
three did, but he chose not to do that, he
chose to go the other way, and just like Offie
Evans says, it doesn't make any difference if
there had been a dozen police come in there, he
was going to shoot his way out. He didn't have
to do that, he could have run out the side
entrance, he could have given up, he could have
concealed himself like he said he tried to do
under one of the couches and just hid there.
He could have done that and let them find him,
here I am, peekaboo.
He deliberately killed that officer on
purpose. I can guess at what his purpose was,
I am sure you can guess what it was, too. He
is going to be a big man and kill a police
officer and get away with it. That is malice."
{Pr, 974-75)
Defense counsel's main line of attack on the malice
aforethought issue was to insist that "the defense doesn't have
to prove anything to you" (Tr. 909) and to attack Wright's
credibility, which he did on a number of occasions in his
argument (Tr. 9211, 921, 936, 938-39, 943, 951, 952). He also
attacked Evans' credibility (Tr. 948-49, 952). The prosecution
countered with its argument that Wright was the most credible of
all the witnesses (Tr. 976; see also, Tr. 955).
The problem for the defense which was posed by the
challenged instruction was that, even if the jury had disbelieved
Wright and Evans, the instruction permitted the jury to find
intent on the basis of the presumption, and defendant's failure
to rebut. On this factual basis, the error is not harmless
beyond a reasonable doubt.
Furthermore, as briefed in detail, infra, Claim D, the
trial court instructed the jury that it could use evidence of
independent criminal acts (which the prosecution introduced for
purposes of identifying the petitioner) as illustrative of the
petitioner's intent, or state of mind, as to the murder charge.
This instruction, petitioner contends, infra, was wrongful in it-
self. But, separately, in the context of the intent instruction
given the jury which is the subject of the Sandstrom scrutiny,
the petitioner submits that the instruction regarding use of the
independent criminal acts to show intent or state of mind further
compounded the intent problem herein, as it further relieved the
prosecution of its appropriate burden to show intent. Herein,
the Court is faced with the obverse of McCorquodale. Here, the
unique fact situation heightens, rather than takes away, the
Sandstrom error.
J
:
[ B
3/
probative of the accused's intent to commit malice murder.
Prior to admission of the evidence of a robbery at the
Red Dot Store, the State made the following statement of its
purpose for offering the evidence of this independent act:
"MR. PARKER: Your Honor, that is the matter
I intended to go into. I have some other
witnesses. I intend to to into the identity
of Mr. McCleskey, 1f the Court has some
doubt about the party who was identified in
that robbery. The State is claiming that
this is a similar transaction, that is this
is where the murder weapon came from, and the
State is proceeding on that basis." (Emphasis
added); (Tr. 667-68).
Despite this clear statement from the prosecution that
the purposes for which the prosecution sought to admit the
evidence of the Red Dot Store robbery was for purposes of prov-
ing the identity of petitioner at the Dixie Furniture Store
robbery, the Court instructed the jury, inter alia, that the
jury could use the other transaction evidence for »jllustrating
the state of mind, . . .motive [or] intent. . .of the
accused. +. " A{Tr. 993).
Similarly, this same instruction to the jury at the
guilt phase of the trial permitted the jury to use evidence of
a second independent act [a robbery of the Dot Fruit Stand],
which had been introduced for the purposes of impeaching the
credibility of the defendant, (Tr. 884), as evidence of
reflecting the "motive, intent, or state of mind” of the
accused. For the reasons as stated herein regarding the over-
broad instructions regarding the use of the independent act
offered to show identity, so the Court erred in giving an over-
broad instruction regarding use of the independent act offered
to impeach the petitioner's credibility.
This overbroad instruction to the jury cast into grave
doubt the reliability of the jury's fact-finding with respect
to the guilt determination. The jury was told that it could
use the evidence of independent transactions to judge the mental
3/
If the Court was instructing the jury to consider the indepen-
dent act on petitioner's intent to rob, as opposed to intent
to murder, the instruction was still too broad, as the Court
nowhere limited its instruction to apply only to intent to rob.
-11-
state of the defendant with respect to the malice murder charge.
This is contrary to the prevailing view in the American jurisdic-
tions that use of evidence of independent transactions other than
that for which the accused is on trial, must be used with great
caution and only with instructions that very narrowly limit the
jury's use of that evidence. (See Claim F, infra.)
The Supreme Court long ago noted the problem with the
use of such evidence. Michelson v. United States, 335 U. S. 469,
at 475-76 (1948) ("The overriding policy of excluding such
evidence [of a prior criminal record], despite its admitted
probative value, is the practical experience that its disallow-
ance tends to prevent confusion of issues, unfair surprise and
undue prejudice"). Accord, United States v. Martinez, 555 F. 2d
1273 (5th Cir. 1977); United States v. Tumlin, 551 F. 24 1001
{5¢h Cir. 1977).
The trial court's overly broad instruction to the jury
regarding the use of independent acts evidence with reference to
the mental state of the defendant created a situation analogous
to that condemned by the court in Beck v. Alabama, supra. There, |
the United States Supreme Court, in finding a violation of due
process in a trial court's failure to give a lesser included
offense instruction, reasoned as follows:
"While we have never held that a defendant
is entitled to a lesser included offense in-
struction as a matter of due process, the
nearly universal acceptance of the rule in
both state and federal courts establishes
the value to the defendant of this procedural
safeguard. That safeguard would seem to be
especially important in a case such as this.
For when the evidence unquestionably establishes
that the defendant is guilty of a serious,
violent offense - but leaves some doubt with
respect to an element that would justify
conviction of a capital offense - the failure
to give the jury the 'third option' of con-
victing on a lesser included offense would
seem inevitably to enhance the risk of un-
warranted convictions.
Such a risk cannot be tolerated in a case
in which the defendant's life is at stake.
As we have often stated, there is a significant
difference between the death penaley and lesser
punishments:
'[D]leath is a different kind of punishment
from any other which may be imposed in this
country. . . From the point of view of the
w]2
defendant, it is different in both its
severity and its finality. From the
point of view of society, the action
of the sovereign in taking the life of
one of its citizens also differs
dramatically from any other legitimate
state action. If is of vital importance
to the defendant and to the community
that any decision to impose the death
sentence be, and appear to be, based on
reason rather than caprice or emotion.
Gardner v. Florida, 430 US 349, 357-358,
Bl IT. Ed. 28 383, 97 8. Ct. 1197 (opinion
of Stevens, J.).
To insure that the death penalty is
indeed imposed on the basis of 'reason
rather than caprice or emotion,' we have
invalidated procedural rules that tended
to diminish the reliablity of the sentenc-
ing determination. The same reasoning
must apply to rules that diminish the
reliability of the guilt determination.
Thus, if the unavailability of a lesser
included offense instruction enhances
the risk of an unwarranted conviction,
Alabama is constitutionally prohibited
from withdrawing that option from the jury
in a capital case.”
65 L. Bd. 24, at 402-03.
The same rationale applies here. The common rule in
"American jurisdictions is that instructions on the use of other
acts evidence will be carefully designed to prohibit the kind of
risks to the fact-finding process which was allowed by the
Court's instructions herein. The safeguard not present herein
was especially important in a case such as this. Indeed, the
jury's finding of malice murder or intent as part of the malice
murder finding could as a direct result of the trial court's
instruction, have been based not on "reason, (but) rather upon
caprice or emotion.”
Just as the Supreme Court has invalidated procedural
rules that tend to diminish the reliability of the sentencing
determination, the Supreme Court has also invalidated state rules
that diminish the reliability of the guilt determination. Beck
v. Alabama, supra. In light of the overbroad instruction to the
jury regarding the use which the jury could have made of the
evidence regarding the Red Dot robbery and Red Dot Fruit Stand
robberies, the petitioner's due process rights were violated.
The Court should order a new trial on this ground.
“]l3-
to present or the jurors might discern in
the testimony opens too wide a door for
the influence of arbitrary factors on the
sentencing determination. By sanctioning
consideration of the aggravating factors
plus anything else the jury determines to
be aggravating, such an instruction broadens
jury discretion rather than channels it and
obscures any meaningful basis for distin-
guishing cases in which the death penalty
is imposed from those in which it is not.
* * *
Guarding against the arbitrary and
discriminatory imposition of the death
. penalty must not become simply a guessing
game played by a reviewing court in which
it tries to discern whether the improper
nonstatutory aggravating factors exerted a
decisive influence on the sentence deter-
mination. The guarantee against cruel and
unusual punishment demands more."
Id4., 58-60.
The same situation applies herein. In addition to the
prescribed statutory aggravating circumstances which the jury
was permitted to consider, the instruction permitted considera-
tion of the following additional aggravating circumstances:
l. Evidence of certain prior convictions (including
certain convictions that were subsequently invalidated) submitted
to the jury by the State pursuant to Ga. Code Ann. §27-2503(a);
2. The evidence of petitioner's alleged participation
in an unindicted robbery of the Red Dot Store, introduced initial-
ly by the State for purposes of showing the identity of the
Dixie Furniture Store murderer;
3. Evidence of petitioner's alleged participation in
the unindicted Dot Fruit Stand robbery introduced initially
for the purpose of impeaching the defendant.
The broad instructions to the jury permitting their
consideration of such evidence without any instructions whatso-
ever as to what role, if any, these factors could play in the
imposition of the death penalty, creates the same situation
found unconstitutional in Henry v. Wainwright, supra.
1. Prior Convictions.
As for evidence of petitioner's prior convictions, al-
though Georgia Code Ann. §27-2503(a) permits consideration of
"the record of any prior criminal convictions and pleas of gulity
-15-
or pleas of nolo contendre of the defendant" in aggravation of
punishment, nowhere is any guidance given to the jury as to
what weight, if any, should be given to those prior convictions.
Even more objectionable than the absence of instructions, nowhere
is the State authorized by the Legislature to put before the
jury evidence of convictions which have subsequently been set
aside, prior to the actual trial. Suchwas precisely the situa-
tion in this case, wherein the State introduced evidence of the
prior imposition of three life sentences all of which had been
set aside by the granting of a motion for a new trial. There
was absolutely no reason for the introduction of evidence of
those three prior life sentences other than to improperly in-
fluence the jury with respect to the penalty to be imposed in
this caves
In related contexts, courts have condemned use of
evidence of invalid convictions. For example, convictions which
were invalid because of some constitutional infirmity, have been
held an improper basis for enhancement of penalty at a subse-
quent trial. Burgett v. Texas, 389 U.S. 109,:19:1L., E4, 24 319
(1967). convictions which were subject to an appeal are, in some
circumstances, inadmissible. Spiegel v. Sandstrom, 637 F. 2d
405 (5th: Cir. 1981). And in some circumstances, convictions
subject to pardon or certificates of rehabilitation are not
admissible, Rehman v. Immigration and Naturalization Service,
544 F. 2d 71 (2nd Cir. 1976); Weinstein's Evidence, 4609][08].
This situation is even more compelling than those, as
the three life sentences had already been set aside at the time
that the State introduced them at the sentencing phase of
petitioner's trial. The introduction of evidence was aggravated
4/
“Under Georgia law, evidence of imposition of the three life
sentences which were subsequently set aside is not "evidence of
a conviction." In Georgia, conviction is defined as "a final
judgment of conviction entered upon a verdict or finding of
guilty of a crime or upon a plea of guilty." Ga. Code Ann.
§26-401(d). Because the life sentences were set aside on the
motion for new trial, they were not final under Georgia law.
See, Daniel, Georgia Criminal Trial Practice, 420-20, fn. 16.5
(1980 Supp.); Ga. Code Ann. §77-309(c). Federal law also de-
fines conviction in such a manner as to not include a sentence
hy §
Ei i
by the prosecutor's argument that such evidence be considered
as the jury weighed the penalty to be imposed. There was no
legislative authorization for the jury to consider such evi-
dence, and it was error for such to occur.
2. Evidence Not Resulting in Conviction.
Furthermore, there is nothing in the Georgia statutory
SCheme which permits the consideration by the jury, at the
penalty phase, of alleged criminal activity by the defendant
which has not resulted in a conviction. The trial court's
instruction to the jury permitting them to consider all the
evidence received in court presented throughout the trial, in-
vited the jury to consider, inter alia, the evidence of peti-
tioner's alleged participation in the Red Dot Store robbery and
the Dot Fruit Stand robbery. Nor was this evidence an inconse-
quential portion of the trial. Three different State witnesses
testified regarding the circumstances surrounding the Red Dot
Store robbery. (Ben Wright, Paul Ross & Dorothy Umberger). One
other witness (Arthur Kiessling) testified regarding the circum-
stances of petitioner's alleged participation in the Dot Fruit
Stand robbery, and petitioner was himself cross-examined re-
garding both of these alleged other acts.
Permitting the jury to consider such evidence, results
in the same situation condemned by the Court in Henry v. Wain-
wright, supra. That is, the Court's instruction broadened the
jury discretion rather than clannelling it and obscured any
WRANLABEAL basis for distinguishing this case in which the death
penalty was imposed from those in which it was not imposed.
It is simply impossible to discern whether the jury's considera-
tion of the improper non-statutory aggravating factors exerted
a decisive influence on the sentence determination. As the
Court said in Henry v. Wainwright, supra, "the guarantee against
cruel and unusual punishment demands more." At 59-60.
4/ Continued:
which is set aside subsequently. 28 U, S. C. §2201(s); 18 u.s.c.
§4241(e). If the life sentences were not convictions under
Georgia law then they were not admissible pursuant to Ga. Code
Ann. §27-2503(a).
-) Fe
The failure to properly limit the exercise of the
jury's discretion in the sentencing phase is contrary to the
heart of the Supreme Court's decisions in Gregg v. Georgia, 428
U. 5. 153, 49 I. E4. 24 859, at 887, n. 47 (1976) ("Where the
ultimate punishment of death is at issue, a system of standard-
less jury discretion violates the Eighth and Fourteenth Amend-
ments"); Godfrey v. Georgia, 446 U. S. 420, 64 .1., EA. 28 398
(1980). In Godfrey, the Court made clear that in order to meet
constitutional requirements:
"It, [the State] must channel the sentencers' 5/
discretion by 'clear and objective standards' 6/
that provide 'specific and detailed guidance,'™
and that 'make rationally reviewable the process
for imposing a sentence of death. '".l/
5/
“Gregg v. Georgia, supra, 428 U.S., at 198,
quoting Coley v. State, 231 Ga. 829, 834, 204
S«B..24 612, (1974).
6/
“Profitt .v. Florida, supra, 428 U.S., at 253
(Opinion of Stewart, Powell and Stevens, JJ.).
1
“Woodson v. North Carolina, supra, 428 U.S.
at 303 (Opinion of Stewart,Powell. and Stevens,
JJ. Ye
64 L. E4. 24 at 406.
The standardless instruction to the jury in this case
permitted the jury to use the evidence of other criminal acts in
a matter that is simply a "subject of sheer speculation" just as
was the jury's interpretation of the statutory language found
defective in Godfrey, supra. While the Georgia statutory scheme
upheld in Gregg, supra, expressly limits imposition of the death
penalty to a jury finding of a statutorily-defined aggravating
circumstance, the jury in this case was not instructed to assure
that it was not motivated by aggravating factors such as peti-
tioner's prior convictions or his alleged participation in other
criminal acts for which he had not been indicted or convicted,
which are not a part of the statutory scheme.
Other state courts have condemned the very practice
followed by the Georgia courts in this case. In State v. McCor-
mick, 387 N. E. 2d 276 (Ind., 1979), the Court held that due
process rights of the defendant were contravened when the State
ww) Be
relied upon evidence of other criminal acts for which defendant
had not been convicted as a basis for a finding of aggravating
circumstances justifying the death penalty.
In Cozzolino v. State, 584 S. W. 2d 765 (Tenn. 1979),
the Tennessee Supreme Court held that defendant's due process
rights were violated by the State's introduction of evidence
that defendant committed crimes subsequent to the murder for
which he was on trial. Just as in the case herein, such evi-
dence was not relevant to the proof of any aggravating circum-
stances submitted to the jury. The Court stated:
"When the statute is considered as a whole,
it is clear that the only issues that the
jury may properly consider in reaching a
decision on the sentence to be imposed are
whether the State has established one or
more of the aggravating circumstances be-
yond a reasonable doubt. And, if so, whether
any mitigating circumstances have been
shown that would outweigh those aggravating
circumstances. Any evidence that does not go
to the proof of one or the other of those
issues is irrelevant to the jury's delibera-
tions. We cannot believe that the legisla-
ture intended that irrelevant evidence would
be placed before the jury, fraught as such
a procedure would be with the 'substantial
risk that (the death penalty) would be in-
flicted in an arbitrary and capricious manner.’
Gregg v. Georgia, 428 U. S. 153, 188."
(Emphasis supplied.)
In Elledge v. State, 346 So. 24 998 (Fla. 1977), the
Florida Supreme Court held improper the admission of evidence of
a robbery and second murder for consideration by a jury at the
sentencing phase.
Therefore, the petitioner's sentence in this case
should be set aside as contrary to the Eighth and Fourteenth
Amendments to the United States Constitution.
-19-
CLAIM "PF"
ADMISSION OF EVIDENCE OF INDEPENDENT
TRANSACTIONS PURSUANT TO RELAXED GEORGIA
RULE ON ADMISSIBILITY, CONTRAVENES
ETGHTH AND FOURTEENTH AMENDMENTS.
In petitioner's State Court trial, the trial court per-
mitted the State to introduce evidence of two instances of inde-
pendent, untried, criminal acts, as well as details regarding a
number of prior convictions. The trial court permitted the State
to introduce, such evidence, without the exercise of any meaning-
ful judicial scrutiny as to the propriety of the introduction of
such evidence.
The trial court acted consistently with the general
Georgia practice of permitting evidence of other acts of criminal
conduct to come in. Although the Georgia courts adopted the
common law rule favoring exclusion of such evidence in Bacon v.
State, 203% Ga. 261 (1952), since that decision the Georgia courts
have moved away from the Anglo-American tradition to the point
where evidence of independent crimes or alleged crimes is ad-
mitted freely. This change in the Georgia rule is traced by
former Justice Ingram of the Georgia Supreme Court in his dissent
in Hamilton v. State, 239 Ga. 72, at 77-78 (1977):
"I dissent to the judgment of the Court in
this case primarily because, without express-
ly saying so, the majority has greatly
weakened the doctrine of Bacon v. State,
supra. . .I cannot honestly say that this
jury was not significantly influenced by
the illegal admission of this evidence by
independent crime. If you doubt that the
Bacon doctrine is being eroded, read the
following cases. Cf. Rosbobough v. State,
209 Ga, 362 (2) {72 5.2.2d 717) (195%);
Howard v. State, 211 Ga. 186 (3) (84 S.E.
24 455) (1954); Wilson v. State, 212 Ga.
412 (2) (93 5.B.2d 354) ,(1956,; Wood Vv.
State, 224 Ga. 121 (5) (180 S.E.24 3568)
(1968) with Campbell v. State, 234 Ga. 130
(214 S.F.24 656) (1975); Allanson v. State,
235 Ga. 584 (1) (221 S.E.2d 3) (1975); and
' Fears Vv, State, 236 Ga. 660 (1) (225 S.F.24
4) (1976). These cases show a remarkable
trend, in my judgment, towards the liberal
admission into evidence of independent crimes.
If this is to be the new rule, why not just
say boldly and plainly, that the barrier has
been lifted and defendants will now be tried
on their record irrespective of any connection
with the alleged crime on trial." 5/
5/
“The following case exemplifies the relaxed standard applied by
Wir 3 | T°
l. The Rule In Other Jurisdictions.
The majority of American jurisdictions, both State and
Federal, do not apply the relaxed standards regarding admissi-
bility as is followed by the Georgia courts. In most of these
jurisdictions, the Courts have developed strict standards which
must be met prior to the evidence of independent criminal con-
duct being admitted to the jury.
Among the safeguards which the other jurisdictions
generally impose are the following:
(1) The State must make a clear showing of the
probative value of the evidence to an element
of the crime chntgeds
(2) The evidence will not be admitted if offered
for proof of an element of the crime which is
not contested, or is duplicative of other
evidence on that adnts
(3) In cases where the evidence of independent
alleged criminal acts is offered to show the
5/ Continued:
the Georgia Court in admitting evidence of other criminal con-
duct: In Hamilton v. State, supra, an armed robbery trial, the
Court approved introduction into evidence of testimony of four
witnesses regarding three other acts of armed robbery for which
the defendant was not on trial and had not been indicted or con-
victed. Of the four witnesses to the three other acts, three
were unable to identify defendant as one of the persons who
had robbed them.
6/
“State v. Hernandez v. State, 437 P. 24 952 (Ariz. 1968); State
v. Billstrom, 149 N.W.2d 281 (Minn. 1967); State v. Stevens, 238
N.W.24 251 (N. Dakota 1975); State v. Watson, 252 N.E.24 305
(Ohio 1969); State v. Whalon, 464 P.2d 730 (Wash. 1970); Bullard
v. United States, 395 F.2nd 658 (5th Cir. 1968); 2 Weinstein's
Evidence, 4404108].
1/
“State v. Bly, 523 P.2d 397 (Kan. 1974); People v. Gay, 104 Cal.
Rptr. 812, 28 C.A.3rd 661 (1972); People v. Flansburgh, .l130 N.W.
24 373. (Mich, 1970); Jones v. State; 481 S.W.28 900 (Tex. 1972);
United States v. Flerson, 419 FP. 24 1020 (7th Cir. 1970); 2
Weinstein's Evidence, at 404-45; Fox v. State, 491 P.2d4d 721
(Nev. 1971).
“2
identity of the perpetrator of the crime
[such as was the case in petitioner's trial
herein], a high degree of similarity between
the other acts and the act being tried must
be onl
The Federal Courts have from time to time identified
the substantial prejudice which accrues to the defendant when
such safeguards are not present. See, inter alia, United States
v. Harding, 525 F. 2d 84 (7th Cir. 1975) ("The rule that it is
error to inquire about the details of prior criminal conduct is
so well established that such error is cognizable despite the
absence of any objection by defense counsel"); United States v.
Martinez, 555 F.. 28 1273:(5%h Cir. 1977); United States v, Tumb-
lin, 551 F. 24 1001 (5th Cir. 1977); 3 Weinstein's Evidence,
4609[05], fn. 13; United States v. Davenport, 449 F. 2d 696 (5th
Cir. 1971) (witness may not be impeached by inquiry about
specific acts not resulting in conviction); United States v.
Meyers, 550 F. 24 1036, at 1046 (5th Cir. 1977) (Use of indepen-
dent acts to show identity strictly limited). |
The absence of these safeguards substantially dimini-
shes the reliability of the jury's fact-finding on the question
of guilt. Beck v. Alabama, supra.
The lack of safeguards led to prejudice to the peti-
tioner in the following particulars:
1. The trial court admitted evidence of the Red Dot
Store robbery for "identity" purposes in the absence of any
striking similarity between the Red Dot Store robbery and the
Dixie Furniture Store robbery. This is contrary to the prevail-
ing rules in American jurisdictions. See, e.g., United States v.
Meyers, supra; McCormick, Evidence, 2d Ed. (190.
2. The admission of cumulative evidence by three
8/
“State v. Hernandez, supra, n. 6; People v. Romero, 334 N.E.2d
305 (T11. 1975); State v. Billstrom, supra, n. 6; State v.
Stevens, supra, n. 6; Bobo v. State, 324 So. 24 336 (Ala. Court
of Crim. App., 1975); State. v, Watson, supra..n. 6; Drew v.
United States, 331 F.2d 85 (D. C. Cir. 1976); McCormick Evidence,
2nd Ed. 94190 ) "The device used must be so unusual and distinc-
tive as to be like a signature.")
he dy
different witnesses in addition to petitioner's cross-examination
regarding the Red Dot Store robbery was contrary to the prevailing
rule that duplicative evidence of independent act testimony not
be admitted. See, e.g., citations in fn. 7, supra. This
cumulative testimony unnecessarily focused the jury's attention
on extraneous evidence of the petitioner's alleged propensity for
wrongful conduct;
3. The admission of details of prior convictions, over
and above evidence of the convictions themselves, was contrary
to prevailing authorities. See inter alia, United States v.
Harding, supra; 3 Weinstein's Evidence, (609[05], fn. 13.
Introduction of the details of petitioner's prior con-
victions again unduly focused the jury's attention upon peti-
tioner's alleged "bad character." On two of the petitioner's
prior convictions, the prosecutor elicited pre Sudiolal testimony
regarding the details of those prior convictions, even though
petitioner had admitted guilt on those convictions. That
testimony is as follows:
"QO: But you were guilty in all of the robberies
in Cobb County and Douglas County, is that
correct?
A: I have stated I am guilty for them, but for
the ones in Fulton County, no, I wasn't
guilty of it. I pleaded guilty to it be-
cause I didn't see no harm it could do to me.
Q: _Now,one of those armed robberies in Douglas
County, do you recall where that might have
been?
A: You mean place?
Q: Yes, sir.
A: I know it was a loan company.
Q Kennesaw Finance Company on Broad Street, is
that about correct?
A. That sounds familiar.
0 And did you go into that place of business at
approximately closing time?
A: I would say yes.
Q: Did you tie the manager and the -- the manager
up?
A: No, I didn't do that.
Q: Did somebody tie them up?
hu 1
Ac: Yes, sir,
Q: Did they curse those people?
A: Did they curse them?
Q: Yes, sir.
A: Not to my recollection.
Q Did they threaten to kill those people?
A Not to my recollection.
Q: Did somebody else threaten to kill them?
A: I don't remember anybody making any threats. I
vaguely remember the incident, but I don't
remember any threats being issued out.
Q: Now, the robbery in Cobb County, do you remember
where that might have been?
A: Yes, sir, that was at Kennesaw Finance, I
believe.
Os And do you remember what time of day that
robbery took place?
A: If I am not mistaken, I think it was on the
23rd of July.
QO: 19707
A: ‘Right.
OQ: About 4:30 P.M.?
A: Yes, sir.
Q: Were you found inside the store on the floor
with a .32 Caliber revolver?
A: Yes, sir, they caught me red-handed, IT
couldn't deny it.
Or And did you arrive there with an automobile
parked around the corner?
A: I didn't have no automobile.
Q: Did that belong to Harold McHenry?
A McHenry had the automobile.
Q: And was he with you at the robbery?
A Xess, Sir.
0: And was the automobile parked around the corner
with the motor running?
A: At that time I don't know exactly where it was
parked because I didn't get out right there
around the corner, I got up on the street from
the place and he was supposed to pick us up
right there, but unfortunately he didn't make
it.” (Tr. 845-848)
“Dh
There was simply no reason for the examination of
petitioner regarding the details of the Douglas and Cobb County
robberies, other than to unduly prejudice him in the eyes of the
jury. Petitioner had admitted guilt on those and documentary
evidence was introduced into evidence. Such was contrary to
long-standing principles in the American jurisdictions, and
substantially undermined the fact-finding processes of the jury,
contrary to Beck v. Alabama, supra.
In addition to the Supreme Court's concern regarding
the reliability of the fact-finding processes in a death
penalty case, the Supreme Court has also held that the due pro-
cess clause imposes restrictions upon state evidentiary rules in
the context of capital felony trials. Green v. State of Georgia,
442 U. sS., 95, 60 L. E4. 24 738 (1979).
The constitutional requirements regarding admissibility
of evidence of independent acts of crime, particularly when it is
to be relied upon by the jury in the sentencing phase, are
heightened. Presnell v. Georgia, 439 U. S. 14, 16 (1978);
Gardner v. Florida, 30 U. S. 349 (1977); Lockett v. Ohio, 438 U.
S$. 58, 57 1... BEd. 24 973, at 989 (19783).
For the foregoing reasons, therefore, the application
of the relaxed Georgia admissibility rules on evidence of
independent criminal acts or alleged criminal acts, denied
petitioner of rights guaranteed under the Eighth and Fourteenth
Amendments. Petitioner's conviction should be set aside.
CLAIM "L"
PROSECUTOR'S IMPROPER ARGUMENT AT THE SENTENCING
PHASE CONTRAVENED THE EIGHTH AND FOURTEENTH
AMENDMENTS.
1. Impermissible References To The Appellate Process.
At the sentencing phase of the trial the Assistant
District Attorney, in seeking the death penalty, asked that the
jury consider the following when the jury considered aggravating
circumstances and the penalty to be imposed:
"Ladies and Gentlemen, this is the sentencing
phase of this trial, and I expect the Court
is going to charge you with a couple of points,
that you can return a verdict of life in prison
“D5.
Or you can return a verdict of death, . ,
(Tr. 1016). If you find a sentence for this
man of life for murder, if you sentence
him to life for armed robbery, and to life
for armed robbery, and to life for the second
armed robbery, and if you don't specify how
these are to run, they are going to run to-
gether. . .{(Tr. 1017).
Now, what should you consider as you are deli-
berating the second time here, and I don't
know what you are going to consider. I would
ask you, however, to consider several things. . .
I would also ask you to consider the prior con-
victions that you have had with you in the
jury room, and particularly the one where he
got three convictions. I believe if you look at
those papers carefully you are going to find,
I think, on one of those he got three life
sentences to begin with, and then there is a
cover sheet where apparently that was reduced to
what, eighteen years or fifteen years or something,
which means, of course, he went through the appel-
late process and somehow got it reduced.
Now, I ask you to consider that in conjunction
with the life that he has set for himself."
(Tr. 1019-1020)
The Assistant District Attorney's direct request that,
in considering whether to impose the death sentence or life
imprisonment, the jury consider the fact that three life
sentences previously imposed upon the defendant had been reduced
"in the appellate process" contravened the petitioner's Eighth
and Fourteenth Amendment rights.
In asking the jury to consider what had occurred in the
appellate process, the jury was invited to impose the death
penalty so as to avoid the possibility that life sentences like
the three prior life sentences would be reduced.
American jurisdictions, including Georgia, have univer-
sally condemned any reference to the appellate processes which
in any way would suggest to the jury that it's deliberations
regarding Sentonte need not be viewed as final, given the fact
that reviews will take place. Prevatte v. State, 233 Ga. 929
(1975). As long ago as 1848, the Georgia Supreme Court held
improper the remarks of a trial judge to the effect of those
made here by the prosecutor:
"We think, too, that the remark which fell
from the court, reminding the jury of the
existence of an appellate tribunal, to which
the case with which they were then charged
might be carried up, if the evidence of-
fered by the prisoner had been wrongfully
5
withheld -- however well intentioned, was
calculated, nevertheless, to lessen their
[the jurors'] sense of their own responsi-
bility."
Monroe v. State, 5 Ga. 85, 139 (184838).
The rule is followed elsewhere in most United States
jurisdictions. For example, the North Carolina Supreme Court
noted in State y. Ketchie, 286 N. C. 387, 211 S..E. 24 307
(1975):
"This reference to the parole statute was
clearly erroneous. Neither the State nor
the defendant should be allowed to speculate
upon the outcome of possible appeals, paroles,
executive commutations or pardons. (Citations
omitted.) The jury's sentence recommendation
should be based solely on their balancing of
the aggravating and mitigating factors before
them. The possibility of parole is not such a
factor, it has no place in the jury's recommen-
dation of the sentences to be imposed." Ketchie,
251. 8. BE. 28, at 429,
The prosecutor's arguments in this case are very
similar to those of the prosecutor in Evans v. State, 541 P. 2d
269 (Court of Criminal Appeals of Oklahoma, 1975). In that case,
the resulting sentence was set aside. For a collection of the
rules in American jurisdictions regarding references to the
appellate processes in death penalty cases see Annotation at
3 ALR 3rd 1448. See also, 16 ALR 3rd 1137.
The Fifth Circuit has recently recognized that prejudi-
cial arguments by the prosecutor, particularly in a death case,
can be the grounds for overturning a conviction. Spivey v.
Zant, 651 FP. 24 464 (5th Cir. 1981), fn. 1, citing Bruce v.
Estelle, 483 F. 2d 1031, 1040 (5th Cir. 1973), cert denied 429
U. S. 1053, 97.8. Ct. 767,.50 L. Ed. 24 770 (1977), overruled
in part on other grounds Zapata v. Estelle, 585 F. 2d 750, 152
(5th Cir. 1978). Bruce was a habeas proceeding wherein the
court held that the prejudicial remarks of the prosecutor
jeopardized the jury's deliberative processes and hence infring-
ed upon the accused's right to a fair hearing on the merits of
the case. The effect of the arguments in Bruce was not dis-
similar to the effect of the prosecutor's argument herein.
DY
The prosecutor's argument in reference to the appellate
processes focused the attention of the jury on the possibility
that a life sentence would be overturned on appeal, instead of
focusing the jury's attention on its task of determining, within
appropriate guidelines, whether the petitioner should live or
die. This is contrary to the Supreme Court's rulings that the
jury's life or death decision should rest on "consideration of
the character and record of the individual offender and the
circumstances of the particular offense." Woodson Vv. North
Carolina, 428 J. 8. 280, 304 (1976): locket: v. Ohio, 438 U, S.
586, 603-08 (1978). The jury's induced consideration of the
possibilities of appellate reversal leads it into an area where
it has no guidelines and in which its conclusion must be entirely
speculative. In this realm, the jury's life-or-death sentencing
decision may be based at least in part on the juror's notions
regarding the appellate processes, rather than on the peti-|
tioner's crime, his character and his record. The challenged
argument thus improperly leads the jury far beyond the consti-
tutional safeguards of due process of law.
The prosecutor's argument, by injecting an irrelevant
and speculative consideration into the penalty determination,
diverts the jury's attention from the central issue and thereby
"creates the risk that the death penalty will
be imposed in spite of factors which may call
for a less severe penalty. When the choice is
between life and death, the risk is unacceptable
and incompatible with the commands of the Eighth
and Fourteenth Amendments."
Lockett v. Ohio, supra, 438. U. 8., at 605. See also, Beck v.
Alabama, 447 U. 8, 625, at 638, 642 (1980).
On this basis alone, petitioner's sentence of death
should be set aside.
-27a-
2. Prosecutor's Argument That Jury Should
Consider As Aggravating Circumstances
Three Life Sentences Which Had Been
Set Aside on a Motion for New Trial
Was Error Under Henry v. Wainwright.
The prosecutor's argument to the jury directing the
jury's attention to petitioner's prior convictions was also
error under Henry v. Wainwright, 661 F. 2d 56 (5th Cir., Unit B,
1981). That case holds that it was error to admit into evidence
for juror consideration non-statutory aggravating factors. See
Claim "E", supra. It follows from that holding that it was also
error for the District Attorney to argue to the jury that non-
statutory aggravating circumstances should be considered by the
jury in its deliberations on penalty.
As noted supra, at Claim E, there is no statutory
construction of Georgia law which would allow treatment of
the three life sentences as "aggravating circumstances" under
the Georgia death penalty scheme. They were set aside on a
motion for new trial. As such, they did not even constitute
"convictions" under Ga. Code Ann. §27-2503(a), and there is no
justification for their consideration by the jury. Further,
there is no justification for the prosecutor's argument based
upon this extra-statutory aggravating circumstance.
CLAIM "N"
INTRODUCTION OF PETITIONER'S INVOLUNTARY
STATEMENT CONTRAVENED PETITIONER'S RIGHTS
GUARANTEED BY THE FIFTH, SIXTH, AND FOUR-
TEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Testimony regarding a statement given by petitioner to
Atlanta Police Bureau detectives was introduced at petitioner's
trial (Trial Tr. 506, et seq.). Because the statement was not
freely, voluntarily given after a knowing waiver of petitioner's
rights, it was error to admit such testimony.
The involuntary nature of petitioner's testimony is
shown in petitioner's testimony:
"A: Yes, After -- [Lt. Perry] questioned me
for a while, you know, after I kept
telling him I didn't know anything about
it and I didn't have no involvement in it,
and he said, "They are trying to stick it
on you.,' 'l1:said, 'what?' He said 'If you
-28"
know anything, you ought to tell me or you
are in a world of trouble.’
Q: Did he explain what a world of trouble meant?
A: Yes.
Q: What did he say?
A: He said that my car had been seen in the robbery
and they had a tag number, that they had two
eyewitnesses that seen me around the place, and
he said with the evidence they had got they had
enough to burn me.
Q: Okay. Did he mention anything about Earl Lee?
A: Yes. Before he mentioned that he mentioned
something about Earl Lee. He -- he had got
bored from me telling him I didn't know any-
thing about it, and he said I was a damn lie
[sic] said he ought to just throw me out of
the car and do me like Earl Lee did Knowles.
Q: Did he explain what that was?
A: No.
Q: What else was said?
A: After he told me he had two eyewitnesses to
verify that they seen me come out of the place
running, and that he said they had a description
of my car, had the tag number, and he said they
had enough to burn me, you know, and he said
with the evidence -- he said with the evidence
that he has got, he said the best thing for me
to. do is, iF I didn't do no shooting, is to
try to own up to my part that I played in it,
the robbery part, you know." (Trial Tr. 822-23.)
The statement elicited from the petitioner within a short period
of time of these statements by Lt. Perry cannot be a voluntary
statement, Brewer v. Williams, 430 U. S. 387, 51 L. Ed. 24 424
(1977). Therefore it was error to admit such into evidence.
CLAIM "O"
TRIAL COURT IMPROPERLY EXCUSED FOR CAUSE
TWO PROSPECTIVE JURORS WITHOUT ADEQUATE
EXAMINATION OF THEIR VIEWS REGARDING THE
DEATH PENALTY. : i
1. Witherspoon/Adams.
The trial court excluded two prospective jurors, Miss
Barbara J. Weston and Mrs. Emma T. Cason, because of their anti-
death penalty views (Trial Tr. 96-99; 128-130).
The relevant examination of Mrs. Cason can be set out in
a brief exchange with the District Attorney:
ie 1 TO
"Q: Mrs. Cason, are you conscientiously opposed
to capital punishment?
A: Yes,
Q: You are?
A: Yes,
Q If you had two alternatives in a case as far
as penalties go, that is, impose the death
sentence or life penalty,could you at least
consider the imposition of the death penalty?
A: TI don't think so, no. I would have to say no.
Q: Under any circumstances you would not consider
iE?
A: No.
MR. PARKER: Thank you.
THE COURT: Any questions?
MR. TURNER: No questions.
THE COURT: Mrs. Cason, I will excuse you and
let you return to the jury assembly
room on the fourth floor. (Whereupon,
the jury was excused from the court-
room. )
MR. TURNER: For the purposes of the record,
again, I would note the objection
I made in the last similar situation
and would renew it at this time
insofar as this particular juror is
concerned.
THE COURT: Yes, sir."
The exclusion of Mrs. Cason and Mrs. Weston for cause
was premature. The Supreme Court has madé clear as recently as
Adams v. Texas, 448 U. 8S. 38, 65 1L. Ed. 28 581 (1980), that it
is not sufficient to excuse a juror, such as Mrs. Cason, who has
indicated her opposition to the death penalty, without further
examination into her ability to set aside her own convictions and
abide by her oath as a juror. No such examination, as mandated
by Witherspoon and Adams, occurred.
The Supreme Court further enunciated the Witherspoon
standard in Adams, supra:
"The State [in Witherspoon] was held to have
no valid interest in such a broad-based rule
of exclusion, since ' [a] man who opposes the
death penalty, no less than one who favors
it, can make the discretionary judgment en-
trusted to him. . .and can thus obey the
oath he takes as a juror.' Witherspoon v.
Illinois, 391 US, at 519, 20 1... Fd. 24 1776
88S. Ct. 1770, 46 Ohio Ops 24 368. ‘The
defendant, on the other hand, was seriously
w30~
prejudiced by the State's practice. The jury
which sentenced him to death fell ‘woefully
short of that impartiality to which the
petitioner was entotled' on the issue of punish-
ment, l14., at 518, 20 1, Ed. 28 775, 88 5. Ct.
1770, 46 Ohio Ops 2d 368. By excluding all
those who opposed capital punishment, the State
‘crossed the line of neutrality' and 'produced
a jury uncommonly willing to condemn a man to
ie.’ Id., at 520,.523, 20 1. F8. 24 776, 38
8. Ct. I770, 46 Ohio Ops 24 368.
In Boulden v. Holman, 394 US 478, 483-484,
22. L.Ed. 24 433,89 5. Ct. 1138 (1969), we
again emphasized the State's legitimate interest
in obtaining jurors able to follow the law:
"[Ilt is entirely possible that a
person who has a 'fixed opinion against’
or who dies not 'believe in' capital :
punishment might neverthe less be perfect-
ly able as a juror to abide by existing
law -. to follow conscientiously the in-
structions of a trial judge and to con-
sider fairly the imposition of the death
sentence in a particular case.”
And in Lockett v. Ohio, 438 US 586, 595-596, 57
L..B4. 24 973, 98.8. Ct. 2954, 9 Ohio Ops 3rd
26 (1978), we upheld against a Witherspoon chal-
lenge the exclusion of several jurors who were
unable to respond affirmatively to the following
question:
"[D]Jo you feel that you could take
an oath to well and truly [sic] try this
case. . .and follow the law, or is your
conviction so strong that you cannot take
an oath, knowing that a possibility
exists in regard to capital punishment?"
This line of cases establishes the general
proposition that a juror may not be challenged
for cause based on his views about capital
punishment unless those views would prevent or
substantially impair the performance of his duties
as a juror in accordance with his instructions
and his oath. The State may insist, however,
that jurors will consider and decide the facts
impartially and conscientiously apply the law as
charged by the Court.
1d., at 588-89.
. . .if prospective jurors are barred from jury
service because of their views about capital
punishment on 'any broader basis' than inability
to follow the law or abide by their oaths, the
death sentence cannot be carried out. Wither-
Spoon v. lilinolis, 391 US, at 522, n. 21, 20
L. Ed. 24 776, 88 S. Ct. 1770, 46 Ohio Ops 24
368."
Id4., at 591.
The Fifth Circuit reached a similar conclusion in Burns
v. Estelle, 626 F. 24 396 (en banc) (5th Cir. 1980), wherein the
w3l-
Court concluded that the examination ended prematurely:
"Further questioning, which was denied, might
well have revealed that she could lay her
personal views aside, follow the court's in-
structions, and do her duty as a citizen, or
made unmistakably clear that she could not
or would not do so. What her answers might
have been will never be known. She was
prematurely excused. . . ." Burns, at 398.
In this case, neither juror was asked to consider her
ability to lay her personal views aside. Nor were they asked
whether they would be able to abide by their oaths as jurors, or
their ability to follow the court's instructions. The failure
to follow through is exemplified in a recent decision of the
Georgia Supreme Court. In Allen v. State, 248 Ga. 676 (1982)
further examination of a prospective juror (Mrs. Freeman) after
her initial "I don't think so" response (comparable to Mrs.
Cason's response) showed that her initial negative response was
not an inflexible negative. The continued examination of both
Mrs. Cason and Mrs Weston might have shown the same. It was
error to excuse for cause without examination regarding their
9/
ability to set their personal views aside and obey the law.
2. The Systematic Exclusion For Cause Of
Jurors With Scruples Against Capital
Punishment Violated Petitioner's Rights
To Be Tried by (i) A Jury Drawn From A
Representative Cross-Section Of His
Community, And (ii) A Jury Which Main-
tained A Link Between Community Values
And The Penal System On Sentence.
Even if Witherspoon v. Illinois, 391 U. S. 510 (1968)
did not prohibit the systematic exclusion from petitioner's jury
of two prospective jurors with conscientious scruples against the
death penalty, their removal for cause violated two additional
rights guaranteed to petitioner by the Constitution: (i) his
9/
"Mrs. Cason's negative response to the question "under any cir-
cumstances you would not consider it?" does not constitute un-
mistakable clarity that she would automatically vote against
the imposition of capital punishment without regard to any
evidence that might be developed at the trial of the case before
her. It is quite possible, of course, that the juror was unable
to think abstractly of any circumstance wherein she would consider
the death penalty without considering expressly whether, if the
evidence presented before her, and the law as instructed by the
Judge, called for such, she would put aside her convictions and
consider the penalty.
“3
right under the Sixth and Fourteenth Amendments to a jury select-
ed from a representative cross-section of the community, Taylor
v. Louisiana, 419 U. S. 522 (1976); Ballew v. Georgia, 435 U. S.
223 (1978); Duren v. Missouri, 439 U, 8. 357, 53 L. Ed. 24 579
(1979); and (ii) right under the Eighth and Fourteenth Amend-
ments to a jury which maintains a link between contemporary
community values and the penal system. Woodson v. North Caro-
lina, 428 Uv. S. 280, 295 (1976); Trop v. Dulles, 363 U. 8S. 86,
10/
I01. (1958).
3. The Systematic Exclusion of Jurors
With Scruples Against Capital
Punishment Violated Petitioner's
Right To A Jury Selected From A
Representative Cross-Section Of
The Community.
In Taylor v. Louisiana, 419.0. 8S. 522 (1976), the
Supreme Court reversed the conviction of a capital defendant be-
cause the petit jury in his case had been selected pursuant to
methods that dustenatiealiy eliminated most women from service
on his trial jury. The "unmistakable import of [our prior]
opinions," the Court held, "is that selection of a petit jury
from a representative cross-section of the community is an es-
sential component of the Sixth Amendment right to a jury trial."
Taylor v. Loulsiana, supra, 419 U. 8S. at 528, citing, inter alia,
Smith v. Texas, 311 U. 8. 128, 130 (1940); Glasser v. United
States, 315 U. 8. 320, 330 (1°70). This "fair cross-section
requirement," the Court continued, "is not provided if . . .large
distinctive groups are excluded from the [jury] pool.: Id, at
530. The Court had no difficulty concluding that Louisiana's
systematic underrepresentation of women amount to the "exclusion"
of such a "distinctive group." Since the state could not advance
"weightier reasons" beyond "merely rational grounds" to support
the exclusion, the petitioner's conviction was reversed.
10/
© Petitioner is aware that these claims have been decided ad-
versely to his position in Smith v. Balkcom, 660 F. 2d 573 (5th
Cir. 1981). Petitioner respectfully submits that Smith is
wrongly decided, and petitioner has included the briefing herein
in order to preserve his claim in the event that Smith, supra, is
reversed.
-33-
The Court has subsequently expanded and reemphasized
this "representative cross-section" requirement. In Ballew v.
georgia, 435 U. S. 223 (1978), the Court, ruling that a jury of
five violated the Sixth Amendment by "fail[ing] to represent
adequately a cross-section of the community," stressed that
"meaningful community participation cannot be attained with the
exclusion of minorities or other identifiable groups from jury
service." Ballew v. Georgia, supra, 435 U. S., at 236-37. In
Duren v. . Missouri, 439 -U. 8S. 357, 58 L. Ed. 24-579 (1979), the
Court extended Taylor to invalidate a jury system that did not
discriminate against women, but merely permitted them greater
opportunity to be automatically excused. In the course of its
opinion, the Court clarified two points implicit in Taylor itself.
First, discriminatory intent or purpose is not a necessary ele-
ment of a Sixth Amendment "fair cross-section" violation, nor is
the lack of such intent or purpose a defense: "Systematic dis-
proportion itself demonstrates an infringement of the defendant's
interest in a jury chosen from a fair community cross-section.
The only remaining question is whether there is adequate justifi-
cation for this infringement." Duren v. Missouri, supra, 58 L.
Ed. 2d, at 589, n. 26. Second, in order to establish a prima
facie violation, the defendant need only establish (Id. at 4090):
(1) that the group alleged to be excluded is
a "distinctive" group in the community; (2)
that the representation of this group in
venires from which juries are selected is not
fair and reasonable in relation to the number
of such persons in the community; and (3)
that this under representation is due to
systematic exclusion of the group in the jury
selection process.
The Supreme Court has not yet considered whether death
qualification violates a defendant's Sixth Amendment rights to
1Y/
a jury drawn from a representative cross-section of the community.
But application of Duren's prima facie criteria demonstrates that
11l/
~ In Lockett v. Ohio, 438 U. S. 586, 596-97 (1978), the Supreme
Court did hold that the Sixth Amendment does not prohibit the
state from excluding for cause a juror who has "explicitly
indicated an inability to follow the law and the instructions of
the trial judge" on the issue of guilt or innocence. That narrow
holding does not control this case.
—-34-
it does. First, individuals unalterably opposed to capital
punishment constitutes a "distinctive group in the community."
In Castaneda v. Partida, 430 U. S. 482, 494 (1976), the Supreme
Court recognized that groups characterized by well-defined
attitudes or ideologies are just such a "recognizable distinct
Class." In Peters v. Kiff, 407 U. S. 493 (1972), a plurality of
Court examined whether the exclusion of blacks from grand juries
"deprives the jury of a perspective on human events that may have
unsuspected importance in any case that may be presented" and
found itself
"unwilling to make the assumption that the
exclusion of Negroes has relevance only
for issues involving race. When any large
and identifiable segment of the community
is excluded from jury service, that effect
is to remove from the jury room qualities of
human experience the range of which is un-
known and perhaps unknowable."
Peters v. Kiff, supra, 497 U. S. at 503-04. In accordance with
this reasoning, courts have invalidated convictions imposed by
juries drawn under schemes systematically excluding atheists
and agnostics, Schowqurow v. State, 240 Md. 121, 213 A. 24 475
(1965).; State v. Madison, 240 Md. 265, 213 A. 24 880 (1965), daily
wage earners, Labat v. Bennet, 365 F. 2d 698 (5th Cir. 1966),
cert.denied, 386 U. S. 991 (1967), common laborers, Simmons vV.
State, 182 So. 24 442 (Fla. Ct. App. 1966), and students, People
v. Attica Brothers, 79 Misc, 24.492, 359 N.Y.8. 24 699 (NHN. Y. sup.
Ct. 1974). Case law thus makes it clear that groups shaped by a
well-defined attitude or ideology are an "identifiable group" for
purposes of the Sixth Amendment. By definition persons unal-
terably opposed to the death penalty constitute a group shaped by
such a well-defined attitude or ideology.
The remaining two requisites of a prima facie Sixth
Amendment violation have also been met here. There is no
question that persons opposed to the death penalty were under-
represented on petitioner's jury -- indeed they were not repre-
sented at all. And their underrepresentation was due solely to
their "systematic exclusion. . .in the jury selection process."
Taylor recognized that the right of a defendant to a
35
jury drawn from a fair cross-section of the community is not
absolute. But it "cannot be overcome on merely rational
grounds. There must be weightier reasons." Taylor v. Louisiana,
supra, 419 U. S. at 521. In this case, the State has offered no
reasons whatever to support its exclusion. And it is apparent
that no "weightier reasons" existed here.
At the guilt-innocence stage of the trial, there were
simply no grounds whatsoever for excluding veniremen like Ms.
Weston or Ms. Cason. The "jury-nullification" argument -- that
jurors unalterably opposed to capital punishment might refuse to
convict a guilty defendant if they knew that he might subse-
quently be sentenced to death -- has no validity, for neither
prospective juror stated that her views on capital punishment
might "prevent [her] from making an impartial decision as to the
defendant's guilt." Witherspoon v. Illinois, 391 U. S. at 513~
14, 522, n. 21. Indeed, neither were questioned at all in that
regard.
As the Court in Witherspoon recognized, "[i]t is entire-
ly possible. . .that even a juror who believes that capital
punishment should never be inflicted and who is irrevocably
committed to its abolotion could nonetheless subordinate his
personal views to what he perceived tobe his duty to abide by
his cath as a juror and to obey the law of the State." 14., at
514, n. 7 (emphasis added). Since there is no evidence whatso-
ever that these jurors could not fairly judge the issue of guilt
or innocence, there was no reason for excluding them from the
jury, at least at the guilt-innocence stages
Nor can the State argue that such jurors should nonethe-
less have been excluded because they could not have been impar-
tial at the sentence stage of the trial. In the first place, as
12/
~ In Spinkellink v. Wainwright, The Fifth Circuit found such
"weightier reasons' to exist in Florida's "reasoned determina-
tion" that inclusion of such veniremen "risk[ed] a defendant-
prone jury." 58 F. 2d, at 597. There is no evidence in the
record that Georgia has made any such "determination."
“30
Witherspoon recognized, it is the jury devoid rather than in-
clusive of death-scrupled persons that cannot be impartial,
Witherspoon v. Illinois, supra, 391 U. S., at 518-20, and peti-
tioner's right to a representative cross-section is no less
vital at the sentencing phase than it is at the guilt phase.
Moreover, even if these jurors could not have served
impartially during the sentencing phase, the State clearly could
have provided "one jury to decide quilt and another to fix
punishment," Id4., at 391, n. 18, "death-qualifying" only the
sentencing jury. The Constitution prohibits a state from
weighing the expense of providing such a system against peti-
tioner's constitutional right to a trial on the issue of his
guilt or innocence by an impartial jury that is drawn from a
representative cross-section of the community. See, e.g., Bounds
v. Smith, 430 U. Ss. 817, 825 (1977).
4. The Systematic Exclusion of Jurors With
Scruples Against Capital Punishment
Violated Petitioner's Right to A Jury
Which Would Maintain A Link Between
Contemporary Community Value And The
Penal System. :
In Witherspoon, the Supreme Court quoted Trop v. Dulles,
365 U.S. 86, 101 (1958), in asserting the need for the jury "to
maintain a link between contemporary community values and the
penal system -- a link without which the determination of
punishment could hardly reflect 'the evolving standards of
decency that mark the progress of a maturing society.'"
Witherspoon signifies the Court's recognition that the practice
of death-qualifying capital trial juries implicates Eighth
Amendment concerns.
Recent Supreme Court decisions have reaffirmed this
recognition that the jury's ability to "'maintain a link between
contemporary values and the penal system, '" Woodson v. North
Carolina, 428 U. S. 280, 295 (1976) (plurality opinion), has
become an essential ingredient of any death-sentencing procedure
under the Eighth Amendment. In 1976, the Court held that
mandatory death penalty statutes violated the Eighth Amendment
on the grounds that they were incompatible with "contemporary
-37-
values," as demonstrated by the results of discretionary jury
sentencing. Id.; Roberts v. Louisiana, 428 U, S. 325, 336
(1976). And in Gregg v. Georgia, 428 U. S. 153, 206 (1976), the
Court plainly relied upon the notion that juries’ reflections
of contemporary community attitudes would keep infliction of
the death penalty in line with the evolving standards of decency
which are the measure of the Eighth Amendment.
Veniremen opposed to the imposition of capital punish-
ment bespeak widespread community attitudes toward the death
penalty that are indicators of "evolving standards of decency"
and they are guarantors that such standards will not be ignored
when the jury exercises its discretion to impose or reject a
sentence of death and to determine whether the death penalty is
an appropriate sentence in any particular case. Juries selected
by the systematic exclusion of veniremen who will not impose a
death sentence cannot possibly perform the vital constitutional
function assigned to capital jurors by the Court's decisions
in Gregg, Woodson, and Roberts.
Death-qualifying a jury thus substantially impaired
petitioner's Eighth Amendment right to a jury reflecting contem-
porary community values on the issue of punishment. Since the
Eighth Amendment reflects a categorical limitation on society's
right to impose punishment, there was no state interest which
could justify the Georgia procedure that avoided the restraints
of this basic and unyielding prohibition.
13/
Accordingly, petitioner's sentence must be vacated.
5. "Prosecution Prone" Jury.
Petitioner also brings a claim that the systematic
exclusion of jurors with scruples against capital punishment
violated petitioner's right to an impartial jury on the issue
13/
"A similar Eighth Amendment claim was raised in Spinkellink
and rejected on the grounds that the Supreme Court did not
decide "the question of appropriate jury composition under the
Eighth Amendment," and that "[i[n in any event," the Fifth
Circuit had already demonstrated that the jury composition in
Spinkellink was not violative of the Sixth Amendment, 578 F.
2d at 599. Since neither reason is an appropriate basis for
decision, Spinkellink should not be deemed controlling in this
case.
-38.
of guilt or innocence, as such a jury is biased in favor of
conviction. In petitioner's accompanying motion for an eviden-
tiary hearing, petitioner has briefed the reasons why petitioner
should be permitted to introduce evidence in support of this
claim.
CLAIM "Q"
WITHHOLDING OF STATEMENTS MADE TO OR BY
PROSECUTION WITNESSES MATERIALLY PREJUDICED
PETITIONER IN CONTRAVENTION OF HIS DUE PROCESS
RIGHTS.
Prior to trial, defense counsel filed a Brady motion
seeking, inter alia, statements of the defendant. The State
failed to produce to the petitioner the alleged statement of the
defendant, made to Offie Evans. The statement was not produced
prior to trial, although the State offered it at trial (Tr. 869-
71).
Such was error under Brady v. Maryland, 373 U. S. 83, 10
L. Ed. 24d 215 (1963). The statement was, in a number of respects,
inconsistent with statements of other prosecution witnesses.
(Compare, testimony of Mary Jenkins (Trial Tr., at 629) and
Offie Evans (Trial Tr. 871), regarding allegations that Jenkins
put make-up on petitioner the morning of the trial). The State
should not be permitted to withhold a statement, even one
allegedly made by petitioner, which has impeachment value.
Martinez v. Wainwright, 621 F. 24 184 at 188 (5th Cir. 1980);
Monroe v. Blackburn, 607 ¥. 24 148, 152 (5th Cir. 1979); Hudson
vy, Blackburn, 601 PF. 28 785, at 789 (5th Cir, 1979), cert. denied
444 U. S. 1086.
On the foregoing authority, therefore, petitioner's
: 14/
rights under Brady were violated, and the writ should issue.
14/
~ To the extent that Brady, supra, is also applicable to the
State's failure to disclose its understanding with Offie Evans
regarding his federal escape charge, (Claim "A") that matter
will be briefed subsequent to the evidentiary hearing in this
case.
-39-
CLAIM "R"
THE PETITIONER WAS CONVICTED ON THE BASIS
OF EVIDENCE WHICH FAILED TO PROVE HIS
GUILT BEYOND A REASONABLE DOUBT.
The evidence presented to the trial jury was insufficient
to prove, beyond a reasonable doubt, (1) that the petitioner was
the triggerman who shot Officer Frank Schlatt; and (2) that the
shooting occurred whith malice aforethought.
No murder weapon was ever recovered. The person whose
.38 Rossi gun the State insisted was stolen and subsequently used
to shoot Officer Schlatt, i.e., Paul Ross, testified not that
the gun was a .38 Rossi, but rather that his gun was a
"McCluskey" (Tr. 725). Finally, as to the murder weapon, the
State's expert was able to testify only that it was probably
a +38 Rossi (Tr. 413).
As to who possessed the alleged murder weapon at the
time of the trial, the State theorized that it was McCleskey.
However, the State's own witness, Ben Wright, who testified that
McCleskey had the Rossi on the day of the trial, also testified
that he, himself, had carried that very weapon in the weeks
prior to the shooting (Tr. 682).
No witness testified at trial that they saw the actual
shooting take place. The closest thing the State had to "eye-
witnesses" were Classie Barnwell and Mamie Thomas, two Dixie
Furniture Store employees who were situated in the front of the
Dixie Furniture Store at the time of the robbery and the shooting.
However, neither of these two witnesses saw the shooting. Further-
more, Classie Barnwell was unable to state which of the co-defen-
dants who were in the front of the store -- (at least two were in
the front, Tr. 214) -- during portions of the robbery was the
triggerman (Tr. 245). Nor could she state which of them said
"The cops are here" (Tr. 244). The other eyewitness, Mamie
Thomas, was unable to tell from what direction the shot originated
(Tr. 293-94).
The State's theory that McCleskey had to be the trigger-
man because he was the only co-defendant in the front of the
-40-
store who could have seen and then shot Officer Schlatt was
undercut by Ben Wright's own testimony. Wright, the co-defendant
who pled guilty in exchange for a twenty-year sentence, testi-
fied:
"Q: Let me ask you this question. Did
anyone ever say, 'Here comes the
police officer,' or 'Here comes the
cops'?
A: TI said, 'Here is the police out here,
man, let's go.' I said, 'Here is the man,
let's go.' I saw the police pull his car
in and I told them immediately, "The man
is out there, let's go.'
Q: Where were you when you said that?
A: Standing where I could see all the way
up the aisle to the front door."
{Trial Tr. 709).
This evidence, then, shows a reasonable doubt as to the
identity of the triggerman and therefore the evidence upon which
petitioner was convicted was insufficient to meet constitutional
standards. Jackson v.Virginia, 443 U.. 8S. 307, 61-1. E88. 28 560
£1979).
The evidence in support of the State's theory that the
killing of Officer Schlatt occurred with malice aforethought was
also insufficient under Jackson v. Virginia, supra. To show
intent and malice aforethought, the State relied on alleged
statements of McCleskey made to Ben Wright shortly after the
robbery, and to Offie Evans while petitioner and Evans were
incarcerated in Fulton County Jail.
This evidence was insufficient for a showing of malice
aforethought and intent. Wright, himself, testified that he
would lie to gave his own skin.
"Q: That is true, very true, Let me
ask you this one last question.
Would you lie to keep from getting
convicted of murder in this case?
A: Every person will lie to keep from
getting convicted.
Would you, personally?
Me?
Yes, sir.
P
O
y
D
Yes, sir, I vould."
{Trial Tr. 716-17)
-d I~
Wright was the only one of the co-defendants who fled the
jurisdiction after the shooting (Tr. 644, 647). It was Wright
whose deal with the State for 20 years was dependent upon his
testimony at McCleskey's trial (Tr. 647).
Nor was the testimony of Offie Evans any more compelling.
Evans had an escape charge with the Federal government then
pending. As his testimony at the state habeas hearing revealed
for the first time, he had an understanding with the Atlanta
police detectives for his cooperation (Habeas Transcript 122).
Nor was this the last time that Offie Evans would testify that
a defendant had confessed a highly publicized crime to him while
incarcerated in the Fulton County Jail. As Petitioner's Exhibit
16, introduced at the state habeas hearing shows, Offie Evans
subsequently testified at the trial of Wilbert Anderson, charged
with the highly publicized shooting of a shopper in the downtown
Rich's store, that Anderson had confessed to the shooting to
Offie Evans while in Fulton County Jail (Tr. 1222). That exhibit
also shows favorable treatment which Evans also received in re-
sponse to his testimony (Tr. 1451, et seq.). This subsequent
behabior on Evans' part casts in substantial doubt the varacity
of his testimony given at McCleskey's trial.
On the basis of the foregoing, then, the State failed to
show the requisite intent and malice aforethought by proof beyond
a reasonable doubt.
CONCLUSION.
For the foregoing reasons, therefore, the Petition for
a Writ of Habeas Corpus should be granted.
Respectfully submitted,
ober. Rroecn
ROBERT H. STROUP/
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
“dD
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the
within and foregoing "Petitioner's Memorandum of Law In Support
of Issuance of Writ" upon:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
counsel of record for Respondent, by depositing a copy of same
in the United States Mail, first-class postage prepaid.
This g day -of April, 1982.
| JOHN R. MYER
IN THE UNITED STATES DISTRICT CQURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
f
-vs- NO. C81-2434A
WALTER ZANT, Warden.
Georgia Diagnostic and
Classification Center,
Respondent.
PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING
Comes now the petitioner, WARREN McCLESKEY, and pursuant to
Rule 8 of the Rules Governing Section 2254 Cases in the United
States District Courts and 28 U. S. C. §2254(d), respectfully
requests an evidentiary hearing concerning certain of his
constitutional claims.
In support of this motion, petitioner submits the accom-
Roloc Figuip
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
panying memorandum of law.
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
-vs- NO. C81-2434A
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
PETITIONER'S MEMORANDUM IN SUPPORT OF MOTION FOR AN
EVIDENTIARY HEARING
INTRODUCTION.
Petitioner, Warren McCleskey, has moved for an order pur-
suant to Rule 8 of the wules Governing Section 2254 Cases and 28
U.S.C. §2254(d) directing a hearing on certain of the constitu-
tional claims presented in his petition for a writ of habeas
corpus. Taking each of the issues seriatim, petitioner sets
forth the reasons why an evidentiary hearing is appropriate.
"CLAIM A"
I. THE WITHHOLDING OF INFORMATION REGARDING
PROMISES TO OFFIE GENE EVANS.
An evidentiary hearing is appropriate in this in-
stance because the "material facts were not adequately developed
at the State Court hearing," and counsel anticipates that
substantial new evidence regarding the federal escape charges
will be forthcoming in scheduled Seraititons.
Evidence of an understanding between State officers
and Offie Gene Evans was first discovered in the State habeas
corpus hearing (Habeas, Tr. 122). Prior to that time, the
State's position was that no understanding or promises had been
made (Trial Tr. 868).
1/
“Depositions of three federal employees with information regard-
ing the escape charge have been scheduled for April 19 and April
20, 1982.
On the basis of Townsend v. Sain, 372 U. 8. 293, 313,
317 (1963) and 28 U. 8. C. 8§2254(4), such is grounds for an
evidentiary hearing on this claim.
"CLAIM B"
DENIAL OF MOTION TO PROCEED IN FORMA
PAUPERIS, AND MOTION FOR FUNDS.
Petitioner seeks an evidentiary hearing on this claim
because of its close relationship to the ineffective assistance
of counsel claim (Issue P, infra, at 4). Such is an appropriate
basis for an evidentiary hearing. Collier v. Estelle, 488 F. 2d
929 (5th Cir. 1974): Salkay v. Walnwright, 552 F. 284 151, 153
(5th Cir. 1977).
"CLAIMS G;, H, J, & Kk"
THE DEATH PENALTY IS IN VARIOUS FASHIONS,
ARBITRARY, CAPRICIOUS, OR CRUEL AND
UNUSUAL.
Petitioner has raised a number of issues regarding
the arbitrary and capricious nature of the imposition of the
death penalty in this case. Petitioner sought funds for the
submission of expert testimony at the State habeas hearing, but
that motion was denied (Habeas Tr. 10). Certain evidence was
submitted in affidavit form, but was rejected in conclusory
fashion by the State Court, without factual findings by the State
habeas court. Such is basis for the granting of a hearing on
this issue. Cuyler v. Sullivan, 446 U. S. 335, 341-42, n. 5
1980); Thomas v. Estelle, 587 F. 24 695, 697 (5th Cir. 1979).
Moreover, additonal evidence has been developed in a
number of other federal habeas hearings, and some evidence has
developed subsequent to petitioner's state habeas hearing, which
makes it appropriate for this Court to grant a habeas hearing on
these issues. 28 U. 8. C. §2254(4) (3).
A panel of the Pifth Circuit, Unit B, recently held
that evidence of the nature which petitioner seeks to submit
would, in proper form, be admissible on an evidentiary hearing.
Smith v. Balkcom, F. 24 , No. 81-7043 (on petition for re-
hearing, March 29, 1982).
"CLAIM M"
THE IMPROPER LINEUP ON THE MORNING
OF THE TRIAL.
The record shows that, on the morning of the trial,
the State showed petitioner, along with several other defendants,
in a suggestive display in the jury box (Tr. 239)... The prosecu-
tor, in his examination of one of his own witnesses, referred to
the display as a lineup (Tr. 250). The prosecutor, in his own
closing argument to the jury, made clear that the display was an
intentional one -- that he had carefully planned the showing of
the petitioner to the witnesses on the morning of the trial
(Tr. 963).
The State habeas court made no findings whatsoever
on this issue, (Habeas Order, at 10-11), and the petitioner's
trial counsel admitted that the evidence took him by surprise,
and he was unable to develop a record at trial (Habeas Tr. 62-70).
The merits of the dispute were not resolved by the State court
hearing, and the material facts were not adequately developed at
any State court hearing. For these reasons, an evidentiary
hearing is appropriate.
"CLAIM O"
WITHERSPOON - DEATH PRONENESS OF THE JURY.
Counsel is, contemporaneously with this motion,
briefing the Court on one aspect of the petitioner's Witherspoon
claim -- that two jurors were improperly excused from the panel
because the Court made inadequate inquiry regarding their
scruples with respect to the death penalty.
Petitioner is requesting an evidentiary hearing on
another aspect of the Witherspoon question -- whether exclusion
of those jurors from the guilt phase of the trial, without any
inquiry as to whether their views on capital punishment would
adversely affect their determination as to guilt, contravened
petitioner's due process rights.
Petitioner submits that this question remains open
under Witherspoon v. Illinois, 391 U, S. 510, at 520, note 18.
Petitioner proposes to introduce evidence which would show that
death-qualified juries, such as petitioner's, are less than
neutral with respect to guilt, Petitioner submits that, contrary
to the legal conclusion of the State habeas court, this is a
factual issue, not foreclosed by prior Supreme Soars decisions,
and that an evidentiary hearing is io rcdisee & The habeas
court made no factual findings on the issue whatsoever. Peti-
tioner sought funds for expert witnesses, but that motion was
denied by the State habeas court.
"CLAIM P"
PETITIONER WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL.
A hearing on this issue is appropriate because the
State habeas court did not resolve all of the specific and con-
trolling factual issues raised; newly discovered evidence, both
as to guilt and at the penalty phase, have come to light since
the State habeas hearing. Counsel for petitioner was given less
than a month to develop evidence for the State habeas hearing
(the hearing occurred on January 30, 1981, the petition was filed
on January 5, 1981), thereby making it impossible for petitioner
to adequately develop the material facts at the State court
hearing.
For these reasons, this Court should permit an
evidentiary hearing on each of the issues requested by the
petitioner.
2/
As noted in petitioner's brief filed contemporaneously with this
motion, petitioner is aware that the Fifth Circuit decision in
Smith v. Balkcom, 660 F. 24.573 (5th Cir. 1981) is counter {to
petitioner's position. Petitioner respectfully submits that
Smith, supra, was wrongly decided.
Petitioner seeks to submit evidence on the process of
capital jury selection which is in response to the Supreme Court
in Witherspoon v. Illinois, 391 U. S. 510, 520, n. 18 (1968) for
evidence on a constitutional issue which that Court indicated was
open for proof. The District Court's holding that the issue is
closed as a matter of law is consequently erroneous. Petitioner
should be afforded a full evidentiary opportunity to demonstrate
the truth of his contentions.
Respectfully submitted,
obey G Alu fl —
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JACK GREENBERG
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the
within and foregoing Motion and Memorandum upon:
Nicholas G. Dumich, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
counsel for respondent, by depositing a copy of same in the Unit-
ed States Mail, first-class postage prepaid.
This & day of April, 1982.
OHN R. jeer
P-034-C
v RS
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA i a
ATLANTA DIVISION MAR 2 © 1087
WARREN McCLESKEY,
Petitioner,
VS. : CIVIL ACTION NO. C81-2434A
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
ORDER OF THE COURT
1]
Petitioner has advised the court that issues enumerated
"B" and "M" may also require certain additional evidence.
Accordingly, he shall present argument on the timetable here-
tofore established on why an evidentiary hearing on those
issues would be appropriate.
SO ORDERED this 2% day of March, 1982.
i
17 | {
wr Ile ak
JT. OWEN FORRESTER
UNITED STATES DISTRICT JUDGE
Ci
J
FPI-MAR—3-9.77-100M-7188
P-034-C
¢ ®
IN THE UNITED STATES DISTRICT COURT y.s.D.C. - Atlanta
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MAR 1 7 1982
BEN H. GARTER, Clerk [Ai [ ; UTS By: —7F—| okay
Petitioner, : /
WARREN McCLESKEY,
VS. : CIVIL ACTION NO. C81-2434A
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent
ORDER OF THE COURT
This court's order in which this case was referred to a
magistrate is hereby RESCINDED in its entirety.
Except for issues denominated in the petition as A, G,
H, K and P and such other issues as the attorney for the
petitioner may designate by March 15, 1982, the petitioner
shall file a brief in support of the petition by April 3,
1982. The State advised that they had not as yet had time
to brief the merits of the points raised in the petition,
and so they may respond to the brief just ordered provided
that their brief is filed by May 3, 1982.
The issues reserved may require evidentiary hearings
according to the petitioner. He shall by April 8, 1932
submit a brief showing why, under the provisions of 28 U.S.C.
§ 2254(d) an evidentiary hearing is required. The respondent
is allowed until May 8, 1982, to present its arguments to the
contrary.
Heretofore a motion for new trial was filed before The
Honorable Sam Phillips McKenzie, Judge of the*Superior Court
Of Pulton County. By March 15, 1982, the parties shall report
to this court on the status of that motion. It is the intent
of the court to hear all issues which the petitioner has.
FPI-MAR—3-9.-77-100M.7188
erk
P-034-C
¢ ®
Such evidentiary hearing as is allowed shall commence
on Monday, June 7, 1982, at 10:00 a.m. and shall continue
from day to day thereafter until concluded. The evidentiary
record shall be complete at the end of this hearing. Peti~
tioner's brief in support of the issues reserved For hearing
shall be due ten (10) ‘days from the conclusion of said
hearing, and respondent shall be allowed ten (10) days
additionally for the filing of his brief.
Ae Le
SO ORDERED this Viner day of March, 1982.
7 ;
1 / f rd . bi \ A 3 iT Z
Sd SIRE 7 /
J. OWEN FORRESTER
/
/UNITED STATES DISTRICT JUDGE
FPI-MAR—3.9.77.100M-7188
4 “
IN THE UNITED .STATES DISTRICT COURT U.S.D.C. ay
FOR THE NORTHERN DISTRICT OF GEORGIA Re
ATLANTA DIVISION
FEB 2.31087
Py: 13 \ ~~, { / i oN Keelf Petitioner, \ | Deputy Cf
Vs. : CIVIL ACTION NO. C31-2434A |
WALTER ZANT, Warden,
Georgia Diagnostic and
a fy yp EN . Classification Center :
Respondent.
ORDER OF THE COURT
Petitioner, Warren McClesky, seeks a writ of habeas
| corpus releasing him from his sentence of death imposed by |
the Superior Court of Fulton County on October 12, 1978.
Fourteen months later on January 24, 1980, the Georgia Supreme
Court affirmed petitioner's conviction and sentence. The
Supreme Court of the United States denied a timely petition for a writ of certiorari on October 6, 1980. On December 19,
1980 petitioner filed an extraordinary motion for new trial in
the SuperiorsCourt of Fulton County. According to the plead- (D
ings, no hearing was ever had on the motion, and so on
January 5, 1981 the petitioner filed a petition for writ of
habeas corpus in the Superior Court of Butts County. A hearing
was had on the petition on January 20, 1981. and about two
months later on April 8, 1981 the Superior Court of Butts
County denied all relief, and about two months after that,
| the Supreme Court of Georgia denied the petitioner's applica- | tion for .a certificate of probable cause to appeal. On November 30, 1981 the Supreme Court of the United 8
denied a timely petition for a writ of certiorari,
On December 30, 1931 the Honorable Orinda D, Evans of
| : : : : | this Court signed a stay of execution and on February. 3,
i i
i
| 1982 directed the respondent to answer within twenty days. |
| This means. that the state's response will be due on
* »
February 24, 1982.
This case is referred to a United States Magistrate to
determine what if any evidence should be taken in the case,
to take that evidence, and to prepare his report and recommen-
dation to the court on all the issues presented herein. All
evidentiary hearings and briefing by the parties shall have
concluded by May 1, 1982, and the Magistrate's report and
recommendation shall be filed by June 1, 1932. No extension |
in the time limits set herein or in the interim time limits
set by the Magistrate shall be granted.
| SO ORDERED this ~ day of February, 1982. |
|
J. OWEN FORRESTER |
UNITED STATES DISTRICT JUDGE |
i
|
|
|
| |
| |
f |
| |
|
I |
|
I |
f | |
{
| |
| | oh
The Department of Lat
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334
132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE 656-3300
February 23, 1982
Mr. Robert B. Stroup
Attorney at Law
1515 Healey Building
57 Porsyth Street, N. W.
Atlanta, Georgia 30303
Re: McCleskey v. Zant, Case No. C81-2434A
(0.8.D.C. B.D. Ga.)
Dear Robert:
Please find the enclosed Answer and Response which I have
filed on behalf of Respondent in the above-styled case.
Under part two of the Answer I list the exhibits which have
also been submitted in accordance with Rule 5 of the
federal rules governing Section 2254 habeas corpus cases.
I have not forwarded you copies of all the exhibits since
they are quite lengthy and since I understand you already
have copies of same.
If you should need copies of any of the exhibits, please
let me know, and I will be happy to provide you access
to our documents for copying.
Sincerely, O
NICHOLAS G. DUMICH
Assistant Attorney General
NGD/cab
Enclosure
The Hepartment of Wate
wed 2 dL rye: State uf WROT HIN
~ 4 < 23 Atlanta
MICHAEL J. BOWERS
20334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL
TELEPHONE 655-3300
February 23, 1932
Honorable Ben H. Carter, Clerk
United States District Court
Northern District of Georgia
Atlanta Division
2211 U. 8. Courthouse
75 Spring Street, S.'W.
Richard Russell Building
Atlanta, Georgia 30335
Re: ‘Warren McCleskevy'v. Walter D. Zant, Case No.
C81~2434A, Habeas Corpus (1.8.D.C. N.D. Ga.).
Dear Mr. Carter:
Please find the enclosed Answer and Response which is to be:
filed in the above-styled habeas corpus case. I am also
forwarding ten documentary exhibits which are also to be
filed along with the attached Answer and Response.
Finally, I am currently drafting a Memorandum in support
of our Answer and Response addressing, in detail, the allegations
raised in the petition. I will submit this memorandum
of law as soon as possible.
Cllihethol Gon
NICHOLAS G. DUMICH
Assistant Attorney General
Sincerely,
NGD/cab
Enclosures
Mr. OC: Robert H. Stroup
UNTIED S'PATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY, %
*
Petitioner, x
*
Ve. *
* CIVIL ACTION NO. C81-2434A
WALTER D. ZANT, *
WARDEN, GEORGIA x HABEAS CORPUS
DIAGNOSTIC AND *
CLASSIFICATION %
CENTER, *
*
* Respondent.
ANSWER AND RESPONSE
COMES NOW, Walter D. Zant, Respondent in the above-
styled action, by and through the Attorney General for the
State of Georgia, and makes this Answer and Response to
the habeas corpus petition which has been filed on behalf
of Warren McCleskey:
CONVICTIONS
Respondent admits that Periciones is presently being
held in the custody of Respondent at the Georgia Diagnostic
and Classification Center, Butts County, Georgia, pursuant
to a death penalty and consecutive life sentences imposed
by the Superior Court of Fulton County, following Petitioner's
October 12, 1978 convictions in said courts for the offenses
of murder and two counts of armed robbery.
EXIIAUSTION
2.
Since it appears that Petitioner has previously, unsuccessfully
raised, in the state courts of Georgia, all of the grounds which
he raises in the instant application for federal habeas corpus
relief, Petitioner has fully exhausted his available state
remedies.
TRANSCRIPTS AND EXHIBITS AVAILABLE
3.
The following are attached as Respondent's Exhibits
in support of this Answer and Response:
{1} Respondent's Exhibit§o. 1 - A copy of the
official record and supplemental record
from Petitioner's trial in the Superior
Court of Fulton County, Georgia.
~
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No
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?
Respondent's Exhibit No. 2 - A copy of
Petitioner's trial transcript from the
Superior Court of Fulton County consisting
of Volume 1 and Volume 17,
(3) Respondent’s Exhibit No. 3 - A copy of
the opinion of the Georgia Supreme Court
following Petitoner's direct appeal to
sald court. McCleskey v. State, 245 Ga.
108, 263 S.E.24. 146 (1580).
(4) Respondent's Exhibit No. 4 - A copy of
the original and amended state habeas corpus
petitions filed on behalf of Petitioner.
(Exhibits omitted).
(5) Respondent's Exhibit No. 5 - A copy of the
transcript of Petitioner's state habeas
corpus hearing in the Superior Court of
Butts County.
(6) Respondent's Exhibit No. 6 - A copy of the
deposition of Fulton County District Attorney,
Russell Parker, which was submitted to and
considered by the state habeas court.
(7) Begpondent's Exhibit No. 7 ~ A copy of the
deposition of Georgia Bureau of Investigation
Ballistics Expert, Kelly Fite, which was
submitted to and considered by the state
habeas corpus court.
(8) Respondent's Exhibit No. 8 - A copy of
the order from the Butts County Superior
Court denying Petitioner's request for state
habeas corpus relief.
(9) Respondent's Exhibit No. 9 - A copy of the
June 17, 1981, order from the Georgia Supreme
Court, denying Petitioner's application
for a certificate of probable cause to
appeal from his state habeas corpus action.
(10) Respondent's Exhibit No. 10 - A copy of the
November 30, 1981, notification from the
Supreme Codut of the United States, denying
Petitioner's application for a writ of certiorari
to the Superior Court of Butts County.
Respondent knows of no other transcripts or relevant
exhibits which are available.
SPECIFICALLY ANSWERING THE ALLEGATIONS RAISED IN THE PETITION
FIRST DEFENSE
1.
Respondent denies all those allegations set out under
Ground A of the petition, and paragraphs 15 through 19 thereunder,
which assert that Petitioner's constitutional rights were
violated through the state's failure to disclose an alleged
agreement for favorable treatment supposedly entered into
by a witness and state authorities.
2
Respondent denies all those allegations set out under
Ground B of the Petitioner, and paragraphs 20 through 28
thereunder, which aver that Petitioner's constitutional rights
have been violated as a result of the refusal of the trial
court to provide funds to Petitioner for a ballistics expert
and an investigator.
3
Respondent denies all those averments under Ground C
of the petition, and paragraphs 29 through 32 thereunder,
which aver that Petitioner's constitutional rights were
violated as a result of the trial court's instructions
to the jury regarding presumptions on intent.
4.
Respondent denies all those allegations set out under
Grounds D and E of the petition, and paragraphs 33 through
41 thereunder, which aver that Petitioner's constitutional
rightsiwere violated as a result of the trial court's instructions
during the guilt/innocence and sentencing phages of Petitionar’s
trial,pertaining to the Jury's consideration of other alleged
criminal acts on the part of the Petitioner.
O2
]
Respondent denies all those averments under Ground F
of the petition, and paragraphs 42 through 44 thereunder,
which assert that Petitioner's constitutional rights
were violated through the trial court's admission of
evidence pertaining to other criminal activities of the
Petitioner.
6.
Respondent denies all those averments under Grounds G,
H, IT and J of the petition, and paragraphs 45 through 561
thereunder, which aver that the death penalty as applied in
Georgia, is being imposed in an arbitrary or capricious
fashion, and upon discriminatory grounds based on sex, race
and/or poverty. Respondent further denies those averments
under the aforesaid paragraphs which assert that Petitioner's
death penaltv is unconstitutional,because it allegedly fails
to serve rational public interests, has no theoretical
justification, or is cruel and unusual punishment under the
specific facts of this case.
7.
Respondent denies all those averments under Ground K
of the petition, and enumerated paragraphs 62 through 69
thereunder, which aver that the Georgia Supreme Court has
engaged in an inadequate review of Petitioner's death penalty,
to insure that it is not arbitrary, capricious, disproportionate,
or violative of the Eighth and Fourteenth Amendments to the
United States Constitution.
Respondent denies all those averments under Ground IL of
the petition, and paragraphs 70 through 71 thereunder, which
assert that Petitioner's constitutional rights were violated
during the sentencing phase of his trial, as a result of improper
prosecutorial argument.
Oo
LJ
Respondent denies all those averments under Ground M of
the petition and paragraphs 72 through 77 thereunder, which
assert that Petitioner's constitutional rights were violated
and his conviction was obtained, as a result of a highly suggestive,
improper pretrial identification procedure.
10,
Respondent denies all those averments under Ground N
of the petition, and enumerated paragraphs 78 through 81 thereunder,
which assert that Petitioner's conviction was unconstitutionally
obtained as a result of the introduction of an involuntary
confession into evidence at Petitioner's trial.
11.
Respondent denies all those averments under Ground O
of the petition, and enumerated paragraphs 82 through 86 thereunder,
which aver that Petitioner's constitutional rights were violated
at his trial as a result of the alleged improper exclusion for
cause of prospective jurors who had expressed unyielding opposition
to capital punishment.
12,
Respondent denies all those averments under Ground P
of the petition, and enumerated paragraphs 87 through 88
thereunder, which assert that Petitioner received ineffective
assistance of counsel prior to and during his Fulton County
trial.
13.
Respondent denies all those averments under Ground ©
of the petition, and enumerated paragraphs 89 through 91
thereunder, which assert that Petitioner's constitutional
rights were violated as a result of the prosecution's failure
to make a pretrial disclosure of statements from two witnesses
who later testified at Petitioner's trial.
14.
Respondent denies all those averments under Ground R
of the petition, and enumerated paragraphs 92 through 97
Sle RR WI I 4- 1 SE hy ” tapped 11Ch aggexrt That the evidence was ing LT Cf the petition wh:
to prove Petitioner's guilt bevond a reasonable doubt.
5.
Respondent denies all those allegations of the petition
which assert that Petitioner is being unconstitutionally incarcerated,
or that his convictions and sentences are illegal and in violation
Of any of Petitioner's constitutional rights.
16.
Respondent denies all those allegations of the petition
not hereinbefore specifically admitted, denied or otherwise
controverted.
SECOND DEFENSE
Since the Georgia Supreme Court, in a full and fair
hearing on direct appeal, and the Butts County, Georgia,
Superior Court, in a full and fair state habeas corpus hearing,
have correctly determined that none of Petitioner's constitutional
rights have been violated, this Court should adopt the findings
of the state courts below, and should summarily dismiss the
instant petition as being without merit.
WHEREFORE, having made this Answer and Response to the
habeas corpus application which has been filed by Warren
McCleskey, Respondent respectfully submits that said petition
should be dismissed, and that Petitioner should be remanded
to the custody of Respondent for completion of his challenged
sentences.
Respectfully submitted,
MICHAEL J. BOWERS
Attorney General
ROBERT S. STUBBS II
Executive Assistant
Attorney General
AEE 2 Rie Ne
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SH i ALS ney General
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IO : MNT
JOHN TEWALDEN" == =
Senior Assis er Byrn General
Cole A { Lil 4 rn mit,
NICHOLAS G. DUMICH
Assistant Attorney General
Plecase serve:
NICHOLAS G. DUMICH
132 State Judicial Bl4g.
40 Capitol Square, 85. HW.
Atlanta, Georgia 30334
(404) 656-3499
CERTIFICATE "OF SERVICE
This is to certify that I have this date served a
true and correct copy of the foregoing Answer and Response
upon counsel for Petitioner, by depositing a copy of same
in the United States mail, with sufficient postage affixed
thereon to assure proper delivery, and addressed to:
Mr. Robert H. Stroup
1515 Healey Building
57. Forsyth Street, NN. W.
Atlanta, Georgia 30303
PS
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This 2X day of Pebruary, 1932.
NICHOLAS G. DUMICH Ce
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
—vs—
WALTER ZANT, warden, Georgia
Diagnostic & Classification
Center,
Respondent.
CIVIL ACTION FILE
NO. 81-2434A
ORDER
Upon preliminary consideration by
petition filed in the above-captioned case,
that the Respondent file an answer or other
within twenty days from the service of the Petition.
The Clerk is ordered to serve a copy
the Attorney General of the State of Georgia.
This 2 day of
the Court of the
it is hereby ordered
responsive pleading
of the Petition,
Sl TDi iies.
UNITED STATES DISTRICT JUDGE
RECEIVED IN CHAMBERS
FER 2 V8
FILED IN CLERK'S OFFICE
J.5.0.Ce ~ Atlanta
Q_ 2 A FEB ~ 31982
BEN H. CARTER, C!
/: } A BM Deputy Clerk
|
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— rf 61 A " ~ DEG 01981 FOR THE NORTHERN DISTRICT OF GEQR@
BEN HEAR
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ILED IN CLERK'S OFFICE
WED IN CLERK'S OFFICE : U.5.D.C. = Atlanta
a At lanta
: no 7 . Pre oor Ere JC 3 0) 19%.
IN THE UNITED STATES DISTRICT COURT SMA
B26aRTER, Co / ATLAN VIER, Clerk bien. iar LANTA DIVISION oy Yr 2
[ wt”
“Deputy Clerk
——
Deputy Clerk
WARREN McCLESKEY, )
)
Petitioner, )
)
-VSs- ) CIVIL ACTION
)
WALTER ZANT, Warden, Georgia ) Qa et og IY REE on TREY ST
Diagnostic and Classification) Weed Bog NA he A
Center, ) XJ Sd wid ER oti.
)
Respondent. )
ORDER
On application by petitioner Warren McCleskey for a
stay of execution of the sentence of death imposed upon him
py the Superior Court of Fulton County on .-October 12, 1978 as
* »
*
amended on December 17, 1981, and presently scheduled for
January 6, 1982:
IT IS ORDERED THAT petitioner's application for a stay
of execution is hereby granted and petitioner's execution is
hereby stayed pending further order of this Court.
IT IS FURTHER ORDERED THAT petitioner remain in the
custody of the Warden of the Georgia Diagnostic and Classifi-
cation Center, Jackson, Georgia, pending further order of this
Court.
IT IS FURTHER ORDERED THAT the Clerk of this Court give
immediate telephonic notice to the Warden of the Georgia
Diagnostic and Classification Center, Jackson, Georgia; to
Michael Bowers, the Attorney General of the State of Georgia;
PEI
and to George Busbee, the Governor of the State of Georgia
that the petitioner's execution is stayed by order of this
Court, and that a certified copy of this order be subsequently
served upon these persons by the United States Marshal.
A on, S )
yell a JG." oN Ld =
UNITED STATES DISTRICT JUDGE
Northern District of Georgia,
Atlanta Division
Dated this 20 day of | ~e r 3981.
LL
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
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Petitioner,
ys - CIVIL ACTION
)
WALTER ZANT, Warden, Georgia ) NO.
Diagnostic and Classification)
Center, )
)
~ Respondent. )
APPLICATION TOR A STAY OF EXECUTION
Petitioner respectfully moves the court to enter an
order staying the execution of his sentence of death pending
final disposition of this action.
This motion is based upon the petition for a writ of
habeas corpus filed contemporaneously herewith, and the
Memorandum of Law in Support of Petitioner's Application for
a Stay of Execution.
Respectfully submitted,
ROBERT H., STROUP I
1515 Healey Building
Atlanta, Georgia 30303
(404) 522-1934
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
” #
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-VS = Civil Action No.
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WALTER ZANT, Warden, Georgia )
Diagnostic and Classification)
Center, )
)
Respondent. )
MEMORANDUM OF LAW IN SUPPORT OF
PETITIONER'S APPLICATION FOR A
STAY OF EXECUTION
This is a habeas corpus petition in a death case. A
stay of execution is legally authorized and should be granted
to permit petitioner to have a full and considered hearing in
this Court before his life is extinguished. Clearly, "there
would be a miscarriage of justice if the irremediable act of
execution is taken," Modesto v. Nelson, 296 F. Supp.’ 1375, 1376-
1377 (N.D. Cal. 1969), before petitioner's challenge to his
conviction and sentence of death can be fairly heard and "finally
adjudicated, ™ Hill v. Nelson, 272 F, Supp. 790, 795 (N.D. Cal.
1967).
This Court has jurisdiction and is authorized by statute
and an abundance of authority to stay petitioner's execution
(Point I, infra). State remedies have been exhausted (Point II,
infra). Since substantial federal constitutional questions
are presented in the habeas corpus petition that petitioner has
filed in this Court today a stay is vlainly warranted. (Point III,
infra) .
1. JURISDICTION OF THE COURT TO
ENTERTAIN THE PETITION AND TO
STAY PETITIONER'S EXECUTION
By this petition for a writ of habeas corpus, petitioner
asserts that his conviction and sentence of death violate the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the Consti-
tution of the United States. Those contentions are within the
jurisdiction conferred upon this Court by 28 U.S.C. §2241 (c) (3).
See Fay v. Noia, 372 U.S. 391, 399-426 (1963); and see, e.g.,
Sheppard v. Maxwell, 384 U.S. 333 (1966); Maxwell v. Bishop,
398 U.S. 262 (1970). The Court's power to stay petitioner's
execution is expressly conferred by 28 U.S.C. §2251; and stays
of execution have been regularly granted by federal habeas
corpus courts to death-sentenced state prisoners pending dis-
position of their federal constitutional claims. See, e.g.,
Brent v. White, 398 F.28. 503, 507 (5th Cir. 1968); Clarke v.
Grimes, 374 :F.24 550,:553.(5th Cir. 1967).
II. EXHAUSTION OF STATE REMEDIES
Petitioner has fully exhausted state remedies, as required
by 28 U.S.C. §2254 (b). His conviction was affirmed on direct
appeal by the Supreme Court of Georgia in McClesky v. State,
245 Ga. 108 (1930), cert. denied, U.S. (yo 66 L,. 24.24 119.
A state habeas corpus proceeding broughtiin petitioner's
behalf pursuant to §50-127 of Ga. Code Ann. was denied by the
Superior Court of Butts County on April 8, 1981. Petitioner's
certificate of probable cause to appeal was denied by the
Supreme Court of Georgia on June 17, 1981, and the U.S. Supreme
Court denied the petition for certiorari on November 30, 1981,
50 U.S.L.W. 3448.
III. APPROPRIATENESS OF A STAY OF EXECUTION
Petitioner is a condemned state prisoner presenting
federal constitutional challenges to his conviction and death
sentence. These contentions as set forth in his federal habeas
corpus petition filed today are plainly substantial, and there-
fore warrant a stay of execution pending a full and complete
hearing. See, e.g., Adderly v. Wainwright, 272 F. Supp. 530,
532-533%(M.D. Pla. 1967); Hill v,. Nelson, 271 FP. Supp. 439, 444
(N.D. Cal. 1967).
: %
a -
Petitioner should not be executed by the State of Georgia
until he has had an opportunity finally to adjudicate these
substantial questions.
CONCLUSION
For the reasons set forth herein, petitioner urges this
Court to grant a stay of execution in order fully to consider
his constitutional claims before these claims are mooted by
his death.
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
(404) 522-1934
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
10 Columbus Circle
Suite 2030
New York, New York 10019
ATTORNEYS FOR PETITIONER
»
b+
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
we 1 Ta CIVIL ACTION
WALTER ZANT, Warden, Georgia
Diagnostic and Classification
Center,
)
)
)
)
)
)
) NO.
)
)
)
) Respondent.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
The petitioner, Warren McCleskey, by his undersigned
counsel, asks leave to file the attached petition for writ of
habeas corpus without prepayment of costs and to proceed in
forma pauperis. Petitioner's affidavit of indigency is
attached hereto.
Relient. Soup
ROBERT H. STROUP
1515 Healey Patading
Atlanta, Georgia 30303
(404) 522-1934
JACK GREENBERG
JAMES M. NABRIT, III
JOEL BERGER
JOHN CHARLES BOGER
. 10 Columbus Circle
y New York, New York 10019
ATTORNEYS FOR PETITIONER
UNITED STATES DISTRICT COURT
NORTHERN LISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
gid 4: fou CIVIL ACTION
WALTER ZANT, Warden, Georgia
Diagnostic and Classification
Center,
NO.
f
p
Respondent.
AFFIDAVIT IN SUPPORT OF REQUEST
TO PROCEED IN FORMA PAUPERIS
STATE OF GEORGIA)
} SS
COUNTY OF BUTTS )
I, WARREN McCLESKEY, being first duly sworn, depose
and say that I am the petitioner in the above-entitled case;
that in support of my motion to proceed without being re-
quired to prepay fees, costs or give security therefor, I
state that because of my poverty I am unable to pay the costs
of said proceeding or give security therefor;that I believe I
am entitled to relief.
I further swear that the responses which I have made to
questions and instructions below are true.
1. Are you presently employed? Yes No X
a. If the answer is "yes," state the amount of your
salary or wages per month, and give the name and
address of your emplover.
b. If the answer 1s "no," state the date of last
employment and the amount of salary and wages
per month which you received.
ontTl las, A 01760008 F-30- 78
#700. ° > Dor sprantl poiourezeg)
Have you received within the past twelve months any
money from any of the following sources:
a. Business, profession or form of self-employment?
Yes No A
b. Rent payments, interests or dividends? Yes
NO. =X
c. Pensions, annuities or life insurance payments?
Yes No X
d. Gifts or inheritances? Yes 4 No
e, : Any other sources? Yes No X
If the answer to any of the above is "yes," describe
each source of money and state the amount received
from each during the past twelve months.
wll Mar sidl bpgpescneisy, X, 00.29 or
Gear, poor cre saris
J : 7
Do you own cash, or do you have monev in checking or
savings account?
x No = {Include any funds in prison
accounts.) If the answer is "yes," state the total
value of the items owned.
zl pobre GopprbomaZl, ¥58.°° en Goarrpe)
4. Do you own any real estate, stocks, bonds, notes,
automobiles or other valuable property (excluding
ordinary household furnishings and clothing)?
Yes oie Xo
If the answer is "yes," describe the property and
state its approximate value.
5. List the persons who are dependent upon you for
support, state your relationship to those persons,
and indicate how much you contributed toward their
support.
Nowe
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties
for perjury.
WARREN McCLESKEY
Lana 711£ Ceatle
J
Subscribed and sworn to before me,
this 29% day of Decoder | 1981.
NOTARY PUBLIC f
My commission expires 7-27-32. .
J Qe
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION
NO. f
e
e
l
WALTER ZANT, Warden, Georgia )
Diagnostic and Classification)
Center, )
)
Respondent. )
ORDLDEDR
Upon application by Petitioner herein, an inmate
incarcerated under death sentence, for leave to file a habeas
corpus petition, pursuant to 28 U.S.C. §2254, without costs,
and to proceed in forma pauperis, and it appearing from
petitioner's affidavit submitted herewith that petitioner is
indigent,
IT IS HEREBY ORDERED that petitioner's motion for leave
to file his petition without costs and to proceed in forma
pauperis is granted.
This day-of es e108,
UNITED STATES DISTRICT JUDGE
i h 4
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
yD CIVIL ACTION
WALTER ZANT, Warden, Georgia
Diagnostic and Classification
Center,
IN a
Respondent.
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
To the Honorable Judge of the United States District
Court for the Northern District of Georgia, Atlanta Division:
Preliminary Explanation: The allegations of this petition
are in the form dictated by the Model Form for Use in Applica-
tions for Habeas Corpus under 28 U.S.C. §2254, prescribed by
the Rules Governing Section 2254 Cases in the United States
District Courts.
Paragraphs 1 through 11 state the history of the prior
state court proceedings; paragraphs 12 through 14 summarize
briefly the facts of the case; paragraphs 15 through 97 state
the petitioner's federal constitutional claims; paragraphs 98
through 102 contain required technical information.
1. The name and location of the court which entered the
judgment of conviction and sentence under attack are:
(a) Superior Court of Fulton County
Fulton County, Georgia
2. The date of the judgment of conviction and sentence
is October: 12, 1978.
3. The sentence is that petitioner be put to death by
electrocution, and that he serve life sentences on the armed
robbery convictions.
4. The nature of the offense involved is that petitioner
was convicted of one count of malice murder and two counts of
armed robbery.
5. At his trial, petitioner entered a plea of not guilty.
6. The trial of the issues of guilt or innocence and of
sentence was had before a jury.
7. Petitioner did testify during the guilt/innocence
phase of the trial of his case.
8. Petitioner appealed his conviction and sentence of
death.
9. The facts of petitioner's appeal are as follows:
(a) The Supreme Court of Georgia affirmed petition-
er's conviction and sentence on January 24, 1980. McCleskey v.
he State, 245 Ga. 108 (1980).
(b) On October 6, 1980, the Supreme Court of the
United States denied a timely petition for a writ of certiorari.
McCleskey v. The State, U.S. y 66 L.EA.28.119-20"(1980).
10. Other than the appeal described in paragraphs 8 and
9 above, the only petitions, applications, motions or proceed-
ings filed or maintained by petitioner with respect to the
October 12, 1978 judgment of the Superior Court of Fulton County
are those described in paragraph 11 below.
ll. (a) On December 19, 1980, petitioner filed an ex-
traordinary motion for new trial in the Superior Court of
Fulton County. No hearing has ever been held on said motion.
(b) On January 5, 1981, pursuant to Georgia Code
Ann. §50-127, petitioner filed a petition for a writ of habeas
corpus in the Superior Court of Butts County. A hearing was
held on the petition on January 20, 1981. Petitioner's motion
for funds to provide for expert witnesses was denied, and
examination of witnesses was conducted without the benefit
of statements in the prosecutor's files, as the habeas court
did not require the attendance of the prosecutor, or a
representative from the prosecutor's office, at the hearing
itself. On April 8, 1981, the Superior Court of Butts County
denied all relief sought.
(c) On June 17, 1981, the Supreme Court of Georgia
denied the petitioner's application for a Certificate of
Probable Cause to Appeal the decision of the Superior Court
of Butts County.
(d) On November 30, 1981, the Supreme Court of
the United States denied a timely petition for a writ of
certiorari to the Superior Court of Butts County. McCleskey wv.
Zant, 0.8. v.50 U.5.L.7., 3448+ (1981).
12. Petitioner was convicted and sentenced in violation
of his rights guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments to the Constitution of the United States,
for each of the reasons set forth below.
I. "INTRODUCTORY FACTS
13. Warren McCleskey was tried and convicted for the
murder of Frank Schlatt on May 13, 1978.
14. The Supreme Court of Georgia found that the jury
was authorized to find the following facts:
On the morning of May 13, 1978, appellant,
using his car, picked up Ben Wright, Bernard
Dupree and David Burney. All four had planned
to rob a jewelry store in Marietta that day.
After Ben Wright went into the store to check
it out, they decided not to rob it. All four
then rode around Marietta looking for another
place to rob but couldn't find anything suit-
able. They drove to Atlanta and decided on
the Dixie Furniture Store as a target. Each of
the four was armed. Appellant had a .38 caliber
Rossi nickel-plated revolver, Ben Wright carried
a sawed-off shotgun, and the two others had blue
steel pistols. Appellant parked his car up the
street from the furniture store, entered the
store, and "cased" it. After appellant returned
to the car, the robbery was planned. Executing
the plan, appellant entered the front of the
store and the other three came through the rear
by the loading dock. Apvellant secured the
front of the store. The others rounded up
the employees in the rear and began to tie
them up with tape. All the employees were
forced to lie on the floor. The manager was
forced at gunpoint to turn over the store re-
ceipts, his watch and six dollars. George
Malcom, an employee, had a pistol taken from
him at gunpoint. Before all the employees
were tied up, Officer Frank Schlatt, answer-
ing a silent alarm, pulled his patrol car up
in front of the building. He entered the
front door and proceeded approximately fifteen
feet down the center aisle where he was shot
twice, once in the face and once in the chest.
The chest shot glanced off a pocket lighter
and lodged in a sofa. That bullet was recov-
ered. The head wound was fatal. The robbers
fled. Sometime later, appellant was arrested
in Cobb County in connection with another
armed robbery. He confessed to the Dixie Fur-
niture Store robbery, but denied the shooting.
Ballistics showed that Officer Schlatt had been
shot by a .38 caliber Rossi revolver. The wea-
pon was never recovered but it was shown that
the appellant had stolen such a revolver in the
robbery of a Red Dot grocery store two months
earlier. Appellant admitted the shooting to a
co-defendant and also to a jail inmate in the
cell next to his, both of whom testified for
the state.
IT. GROUNDS OF CONSTITUTIONAL
INVALIDITY OF PETITIONER'S
CONVICTION AND SENTENCE
(A) Failure To Disclose Understanding With Key
Prosecution Witness.
15. The State's deliberate failure to disclose an agree-
ment or understanding between the State and the jail inmate,
Offie Evans, who testified at petitioner's trial, that a fa-
vorable recommendation regarding a pending federal escape charge
would be made in exchange for his testimony violated the due
process clause of the Fourteenth Amendment.
Facts supporting petitioner's claims that
the State failed to disclose an agreement
or understanding with key prosecution witness
16. As the Georgia Supreme Court decision indicates,
the State's evidence showing that petitioner was the triggerman
in the shooting of Frank Schlatt included testimony from a jail
inmate, Offie Gene Evans, to the effect that petitioner had con-
fessed the shooting.
17. At petitioner's trial, the prosecution elicited from
the inmate testimony that the prosecutor had not promised him
anything for his testimony. (Tr. 868), /
18. No testimony from the inmate was elicited regarding
an agreement or understanding between the inmate and Atlanta
Police detectives investigating the Schlatt killing. (Tr. 865-
71).
19. An agreement or understanding existed between the
inmate, Offie Gene Evans, and Atlanta Police Bureau detectives,
to the effect that Bureau detectives would recommend favorable
disposition of his pending federal escape charges in exchange
for his testimony in petitioner's trial. (Habeas Tr. 122).
(B) Trial Court's Failure to Permit Petitioner To
Proceed In Forma Pauperis And To Provide Funds
For Employment Of Expert Witnesses And Investi-
gators Contravened Petitioner's Due Process
Rights Assured By The Fourteenth Amendment.
20. The Trial Court's failure to permit petitioner to
proceed in forma pauperis and to provide funds for employment of
expert witnesses and investigators contravened petitioner's due
process rights assured by the Fourteenth Amendment.
Facts supporting petitioner's claim that
trial court's failure to permit him to
proceed in forma pauperis and to provide
funds for employment of expert witnesses
and investigators contravened petitioner's
due process rights assured by the fourteent
amendment.
21. In the trial court, petitioner moved to proceed in
forma pauperis, and for funds for expert witnesses and an in-
vestigator. The trial court failed to act favorably upon
petitioner's motions.
*
— All references to the transcript of the trial held in the
Superior Court of Fulton County will be prefaced with the
abbreviation "Tr." References to the transcript of the habeas
corpus hearing in Butts County Superior Court will be prefaced
with the abbreviation "Habeas Tr."
- 5 -
22. Among the factual grounds cited by petitioner for
his motion was the State's reliance upon "numerous experts, in-
cluding pathologist, criminologist, criminal investigators,
ballistic experts, and others . ... '."
23. As noted by the Suvnreme Court of Georgia, the State
relied for its' proof against petitioner on a ballistics expert's
testimony that the murder weapon was a .38 caliber Rossi. The
murder weapon was not recovered, however.
24. The State's own ballistics expert testified subse-
quently that there were significant chances that the murder
weapon was something other than a .38 Rossi. (Fite Deposition,
*
Pp. 17y
25. Had petitioner been granted funds for the retention
of his own ballistics expert, the expert evidence not nresented
to the jury could have been presented.
26. Less than three weeks prior to trial, the State
listed more than 100 potential witnesses which it might call at
trial. Of these, 23 testified at trial, and none were inter-
viewed by defense counsel except the three who testified at the
preliminary hearing. (BH. Tr. 33-37).
27. Among the witnesses who were never interviewed by
defense counsel and who were not called by the State were three
witnesses whose testimony would have contradicted the State's
theory that only one of the parties to the crime was physically
situated at the time of the shooting such as to shoot the victim.
28. The failure to provide petitioner with funds for
the employment of a ballistics expert, and an investigator,
substantially and materially prejudiced the petitioner's
opportunity to present his defense.
*
—’ Fite's deposition is a part of the state habeas corpus
proceeding.
(C) The Court's Charge Regarding Presumptions
Contravened The Due Process Clause Of The
Fourteenth Amendment
29. The trial court's charge to the jury regarding pre-
sumptions of intent contravened petitioner's due process rights
under the Fourteenth Amendment.
Facts supporting petitioner's claims that
the trial court's instructions regarding
presumptions of intent contravened his due
process rights.
30. The itrial court instructed the jury that it could
return a verdict on guilty or not guilty on both malice murder
and felony murder statutes. (Tr. 999-1000). The jury returned
a verdict of guilty on malice murder. (Tr. 1010).
31. The trial court instructed the jury as follows re-
garding presumptions relating to intent as an element of malice
murder:
Now, in every criminal prosecution, ladies
and gentlemen, criminal intent is a necessary
and material ingredient thereof. To put it
differently, a criminal intent is a material and
necessary ingredient in any criminal prosecution.
I will now try to explain what the law
means by criminal intent by reading you two
sections of the criminal code dealing with
intent, and I will tell you how the last sec-
tion applies to you, the jury.
One section of our law says that the acts
of a person of sound mind and discretion are
presumed to be the product of the verson's
will, and a person of sound mind and discretion
is presumed to intend the natural and probable
consequences of his acts, but both of these
presumptions may be rebutted.
I charge you, however, that a person will
not be presumed to act with criminal intention,
but the second code section says that the trier
of facts may find such intention upon considera-
tion of the words, conduct, demeanor, motive and
all other circumstances connected with the act
for which the accused is prosecuted.
Now, that second code section I have read
you has the term the trier of facts. In this
case, ladies and gentlemen, you are the trier
of facts, and therefore it is for you, the jury,
to determine the question of facts solely from
your determination as to whether there was a
criminal intention on the part of the defendant,
considering the facts and circumstances as dis-
closed by the evidence and deductions which might
reasonably be drawn from those facts and circum-
stances.
Now, the offense charged in Count One of the
indictment is murder, and I will charge you what
the law says about murder.
I charge you that a person commits murder
when he unlawfully and with malice aforethought,
either express or implied, causes the death of
another human being. Express malice is that de-
liberate intention to take away the life of a
fellow creature which is manifested by external
circumstances capable of proof. Malice shall be
implied when no considerable provocation appears
and where all the circumstances of the killing
show an abandoned and malignant heart. That is
the language of the law, ladies and gentlemen.
I charge you that legal malice is not
necessarily ill-will or hatred. It is the in-
tention to unlawfully kill a human being with-
out justification or mitigation, which inten-
tion, however, must exist at the time of the
killing as alleged, but it is not necessary for
that intention to have existed for any length
of time before the killing.
In legal contemplation, a man may form the
intention to kill a human being, do the killing
instantly thereafter, and regret the deed as
soon as it is done. In other words, murder is
the intentional killing of a human being without
justification or mitigation.
(Tr. 996-9299),
32. At the request of the jury during deliberations,
the trial court repeated its instructions regarding the elements
of malice murder. (Tr. 1007-1008).
(D) Trial Court's Instructions Regarding The Use
Of Evidence Of Other Alleged Acts Of Criminal
Conduct For Proof Of Intent To Commit Murder
Contravened The Due Process Clause Of The
Fourteenth Amendment.
33. .The trial court's instructions to the jury, that
they could consider evidence that petitioner had been engaged
in other robberies, none of which resulted in the killing of
any person, as proof of intent, contravened the petitioner's
due process rights under the Fourteenth Amendment.
Facts supporting petitioner's contentions
that the trial court's instructions regard-
ing use of evidence regarding other robberies
as proof of intent to murder contravened
petitioners’ due process rights.
34. At trial, the prosecution offered into evidence, for
the purpose of showing petitioner's identity, testimony regarding
a robbery which occurred six weeks prior to the shooting of
Frank Schlatt. (Tr. 667, 676, et seq.)
35. The trial court instructed the jury that the evidence
could be used, inter alia, for proof of intent:
"Ladies and Gentlemen, in the prosecution
for a particular crime, evidence which in
any manner shows or tends to show that the
accused, that is, the defendant in this
case, has committed another transaction,
wholly distinct, independent and separate
from that for which he is on trial, even
though it may show a transaction of the
same nature, with similar methods, in
similar locations, it is admitted into
evidence for the limited purpose of aiding
in identification and illustrating the state
of mind, plan, motive, intent and scheme of
the accused, if, in fact, it does to the
jury illustrate those matters.
Now, whether or not the defendant was involved
in such similar transaction is a matter for
you to determine, and the Court makes no
intimation in that regard.
Furthermore, if you conclude that the defen-
dant now on trial was involved in a similar
transaction or these similar transactions,
you should consider it solely with reference
to the mental state and intent of the defen-
dant insofar as applicable to the charges in
the indictment, and the Court in charging you
this principle of law in no way intimates
whether such transaction, if any, tends to
illustrate the intent or state of mind of the
defendant. That is a question for the jury to
determine, but this evidence is admitted for
the limited purpose mentioned by the Court,
and you will consider it for no other purpose
except the purpose for which it is admitted.
(Tr. 673-74).
36. This overly-broad instruction permitted the jury
to use the evidence of other criminal acts as evidence of intent
to commit murder, even though no murder occurred in the other
robbery. The overly-broad instruction contravened petitioner's
due process rights.
(E) Trial Court's Instructions At Sentencing Phase
Gave Jury Unlimited Discretion Regarding Use
Of Evidence Of Other Robberies, In Contravention
Of The Eighth And Fourteenth Amendments.
37. The Trial court's instructions at the sentencing
phase, which gave the jury unlimited discretion regarding the
use of evidence of other robberies, contravened the Eighth and
Fourteenth Amendments.
Facts in support of petitioner's claim
that the trial court's instructions at
the sentencing phase of the trial gave
the jury unlimited discretion regarding
thelr use of evidence of other robberies,
in contravention of the Eighth and Four-
teenth Amendments.
38. At the sentencing phase of petitioner's trial, the
trial court gave the jury the following instruction:
In arriving at your determination of which
penalty shall be imposed, you are authorized
to consider all the evidence received here
in court, presented by the State and the
defendant throughout the trial before you.
(Tr. 1028).
39. No other instruction was given the jury regarding
its use of the evidence of other alleged robberies which had
been introduced.
40. No other instruction was given regarding the degree
of proof required, nor what weight, if any, might be attached
to the evidence regarding other robberies.
41. The absence of instructions left the jury with un-
guided discretion regarding the use of the evidence of other
alleged robberies, in contravention of the Eighth and Fourteenth
Amendments.
(F) Introduction Of Evidence Of Other Alleged
Acts Of Criminal Conduct, Without Requisite
Safeguards, Contravened The Eighth And
Fourteenth Amendments.
42. At trial, the trial court permitted the introduction
of evidence regarding other alleged robberies--once at the pros-
ecutor's suggestion that such would help identify the petitioner
as present at the shooting of Frank Schlatt, and subsequently
i RO Cr
for impeachment purposes. (Px. 667, 676, 884, 805A, Exhibits
$-32 through S-35; Tr. 348-49),
43. The trial court permitted the introduction of such
evidence without imposing any of the following safeguards:
(a) that the State make a clear showing of the probative value
of the evidence to an element of the crime charges;
(b) that the evidence not be admitted when duplicative of other
evidence going to the same element of the crime:
(c) when offered to show the identity of the perpetrator of the
crime, the State must show a high degree of similarity between
the other criminal conduct and the act being tried;
(d) that the State must prove criminal conduct with respect
to the other alleged criminal act by the defendant by clear
and convincing evidence, or beyond a reasonable doubt.
44. The failure to require any such safeguards, and the
failure to instruct the jury with respect to any such safeguards,
contravened the due process clause of the Fourteenth Amendment.
(G) The Death Penalty, As Applied.
45. The death penalty is in fact administered and
applied arbitrarily, capriciously, and whimsically in the State
of Georgia, and petitioner was sentenced to die and will be
executed, pursuant to a pattern of wholly arbitrary and capri-
cious infliction of that penalty in violation of his rights
guaranteed by the Eighth and Fourteenth Amendments to the Consti-
tution of the United States.
Facts supporting petitioner's claim that
the death penalty is in fact administered
arbitrarily, capriciously and whimsically
in the State of Georgia.
46. The Supreme Court of the United States upheld the
Georgia capital punishment statutes "[o]ln their face" only upon
the assumption that the procedures mandated by the statutes would
assure that sentences of death are not wantonly or freakishly
imposed. Gregg v. Georgia, 428 U.S. 153, 198 (1976). As those
statutes have been applied, however, death sentences in Georgia
have in fact been imposed in an arbitrary and capricious manner.
47. Georgia cases similar to that of petitioner in many
respects, including both the nature and circumstances of the
offense, the age, prior record, relative culpability, and life
and character of the accused have resulted in lesser punishments
than death.
48. Georgia cases more aggravated than that of petitioner
in many respects, including both the nature and circumstances of
the offense and the age, prior record, relative culpability, and
life and character of the accused have resulted in lesser punish-
ments than death.
49. There is no rational, constitutionally permissible
way of distinguishing the few cases in which the death penalty
has been imposed from the many cases in which it has not been
imposed.
50. The evidence shows, for example, that the death
penalty has rarely been imposed upon persons accused, like the
petitioner, of shooting an Atlanta police officer during the
course of his duties. (Habeas Hearing, Exh. P-1).
(H) Death Penalty Is Being Imposed Upon Grounds
Which Are Discriminatory On The Basis Of
Race, Sex and Poverty.
51. The death penalty is imposed in this case pursuant to
a pattern and practice of Georgia prosecuting attornies, courts,
juries and governors to discriminate on the grounds of race, sex
and poverty in the administration of capital punishment. For
these reasons, the imposition and execution of petitioner's death
sentence under Georgia law and practice violates the Eighth
Amendment and the due process and equal protection clauses of the
Fourteenth Amendment to the Constitution of the United States.
Facts supporting petitioner's claim that
death penalty is imposed discriminatorily
on the basis of race, sex and poverty.
52. Just as in the period prior to the Supreme Court's
decision in Furman v. Georgia, the pattern of jury imposition of
the death penalty is clear--black killers and the killers of
white persons are substantially more likely to receive a death
sentence than others. There is little statistical likelihood
that these patterns would have occurred randomly or by chance.
53. Petitioner's death sentence was imposed pursuant to
this pattern of racial, economic and sexual discrimination. The
only accused killers of Atlanta police officers to receive the
death penalty during the period from 1960 to the present have
been black persons convicted of killing white officers.
(I) Failure To Serve Rational Interests.
54. The theoretical justifications for capital punishment
are groundless and irrational in fact, and death is thus an ex-
cessive penalty which fails factually to serve any rational and
legitimate social interests that can justify its unique harsh-
ness, in violation of petitioner's rights guaranteed by the
Eighth and Fourteenth Amendments to the Constitution of the
United States.
Facts supporting petitioner's claim that
the theoretical justifications for capital
punishment are groundless in fact.
55. The death penalty provided by Georgia law violates
the principle that a criminal sanction "cannot be so totally
without penological justification that it results in the gra-
tuitous infliction of suffering." Gregg v. Georgia, 428 U.S.
153,183 .(1976).
56. Executions do not have an identifiable deterrent
effect. As the Georgia State Department of Offender Rehabili-
tation acknowledged in a November, 1972 study entitled Capital
Punishment in Georgia: An Empirical Study 1943-1965, "Despite
the fact that Georgia used the death penalty more often than any
other state in the country, its homicide rate was also the high-
est in the nation. This suggests that the death penalty is not
effective as a deterrent." Study at 451 (emphasis added).
57. Executions set socially sanctioned examples of, and
provide an inducement to, violence.
58. Public sentiment for retribution is not so strong as
to justify use of the death penalty.
59. There is no penal purpose served by execution which
is not more effectively or efficiently served by life imprison-
ment.
(J) Cruel And Unusual In Light Of Circumstances.
60. Petitioner's punishment is cruel and unusual in
consideration of all factors relating to the offense and the
offender, including mitigating circumstances. For this reason,
the imposition and execution of his death sentence violates
petitioner's rights guaranteed by the Eighth and Fourteenth
Amendments to the Constitution of the United States.
Facts supporting petitioner's claim
that his punishment is cruel and
unusual in consideration of all the
factors relating to the offense and
the offender, including mitigating
clrcumstances.
61. The death penalty was imposed in this case although
the evidence showed that the shooting occurred without infliction
of any physical or mental torture; petitioner had never previous-
ly been accused of discharging a weapon against another and the
death penalty has been rarely imposed for the shooting of an
Atlanta Police officer during the course of his duty.
(K) Georgia Supreme Court's Appellate Review Has
Failed To Assure That Death Penalty Was Not
Imposed In An Arbitrary And Capricious Manner,
Contrary To The Eighth And Fourteenth Amendments.
62. The Georgia Supreme Court's appellate review has
failed to assure that the death penalty imposed in this case
was not imposed in an arbitrary and capricious manner, contrary
to the Eighth and Fourteenth Amendments.
Facts in support of claim that Georgia
Supreme Court Appellate Review fails to
meet constitutional standards.
63. Of the thirteen cases reviewed by the Georgia
Supreme Court and relied upon by that court as a basis for con-
cluding that the death penalty was not arbitrarily and capri-
ciously imposed in petitioner's case, four cases were cases
wherein the death penalty was subsequently overturned because
it had been imposed pursuant to the arbitrary and capricious
manner condemned in Furman v. Georgia. [Johnson v. State, 226
Ga. 378 (1970); Callahan v. State, 229 Ga. 737 (1972); Whitlock
v. State, 230 Ga. 700 (1973) and Bennett v. State, 231 Ga. 453
(1973)].
64. Of the remaining cases, most involved cases dis-
tinguishing them from the routine murder case in which the
death penalty has not been imposed. For example, in at least
three cases relied upon by the Georgia Supreme Court, the victim
was shot while fleeing from the scene. Fleming v. State, 240
Ca. 142 (1977); Willis v, State, 243 Ga, 185 (1979); Collier v.
State, 244 Ga. 553 (1979). No such accusation was made against
petitioner.
65. In another case relied upon by the Supreme Court to
find non-arbitrariness, one victim's skull was beaten in and a
butcher knife was buried deep in her chest, while a second vic-
tim, a woman suffering partial paralysis from a stroke, was in-
jured and left alone, where police found her days later. Bowden
v. State, 239 Ga. 821 (1977). No such accusations were made
against petitioner herein.
66. Pulliam v. State, 236 Ga. 460 (1976), also relied
upon by the Supreme Court as evidencing non-arbitrariness,
involved the shooting of a cab driver during a premeditated
robbery scheme that included express plans to shoot the driver.
No such allegations were made against petitioner herein.
67. Dobbs v. State, 236 Ga. 427 (1976) involved the
murder of a grocery store operator who was shot while he lay
helpless on the floor, with a witness begging that he be spared.
No such allegations were made against petitioner herein.
68. Pinally, Callahan v,., State, 229 Ga. 737 (1972) (a
case wherein the death sentence was overturned as imposed pur-
suant to an arbitrary and capricious scheme) involved the mur-
der of an Atlanta Police officer who was stomped unconscious
prior to the shooting.
69. All of the cases relied upon by the Georgia Supreme
Court for a showing of non-arbitrariness involved facts of sub-
stantially greater brutality or torture than in petitioner's
case--indeed, there was no evidence whatsoever of brutality or
torture in petitioner's case.
(L) Prosecutor's Impermissible Arguments To Jurors
During Sentencing Phase Regarding Appellate
Processes Contravened Petitioner's Sixth And
Fourteenth Amendment Rights.
70. The Prosecutor's arguments to the jury during the
sentencing phase of petitioner's trial contravened petitioner's
Sixth and Fourteenth Amendment rights.
71. At the sentencing phase of the trial, the prosecutor,
in seeking the death penalty, made an impermissible reference
to the appellate court process in asking the jury to impose the
death sentence, as opposed to life imprisonment.
The prosecutor argued:
Ladies and Gentlemen, this is the sentencing
phase of this trial, and I expect the Court
is going to charge you with a couple of points,
that you can return a verdict of life in
prison or you can return a verdict of death . . .
(Tr. 1016). If you find a sentence for this
man of life for murder, if you sentence him to
life for armed robbery, and if you don't specify
how these are to run, they are going to run to-
gether: . #» . {Tr. 1017).
Now, what should you consider as you are deli-
berating the second time here, and I don't
know what you are going to consider.
I would ask you, however, to consider several
things . «is
I would also ask you to consider the prior con-
victions that you have had with you in the jury
room, and particularly the one where he got
three convictions. I believe if you look at
those papers carefully you are going to find,
I think, on one of those he got three life sen-
tences to begin with, and then there is a cover
sheet where apparently that was reduced to what,
eighteen years, or fifteen years or something,
which means, of course, he went through the
appellate process and somehow got it reduced.
Now, I ask you to consider that in conjunction
with the life that he has set for himself.
(Tr. 1019-1020).
(M) Admission Of Testimony Tainted By Improper
Lineup Procedure Contravened Petitioner's
Sixth and Fourteenth Amendment Rights.
72. The display of petitioner, in a highly suggestive
situation in the jury box on the morning of petitioner's trial,
without advice of counsel, and the subsequent introduction of
testimony of three witnesses who had not previously been able
to identify petitioner contravened petitioner's Sixth and Four-
teenth Amendment rights.
Facts supporting petitioner's claim
regarding improper lineup procedure
resulting in violation of Sixth and
- Fourteenth Amendment rights.
73. Without any advance notice to petitioner or peti-
tioner's counsel, the State displayed the petitioner in a highly
suggestive situation in the jury box with four or five other
persons the morning of petitioner's trial.
74. At least three witnesses (Classie Barnwell, Paul
Ross and Dorothy Umberger) who had not previously identified
petitioner as at the scene of one or more robberies to which
they testified at petitioner's trial, identified him subse-
quent to the display in the jury box.
75. Petitioner was the only light-skinned defendant in
the jury box the morning of the trial. (Tr. 737).
76. Some of the witnesses had had very slight opportunity
to view the petitioner at the time of the robberies.
77. The trial court erred in admitting the testimony
which had been tainted by the pre-trial identification proce-
dure.
(N) Introduction Of Petitioner's Involuntary
Statement Contravened Petitioner's Fifth,
Sixth And Fourteenth Amendment Rights.
78. The introduction of petitioner's custodial statement
to police officers, made involuntarily and without a free and
knowing waiver of petitioner's rights, contravened the Fifth,
Sixth and Fourteenth Amendments.
Facts in support of petitioner's claim
that introduction of statement contra-
vened his constitutional rights.
79. The trial court permitted the introduction into evi-
dence of testimony regarding a statement made by petitioner to
Atlanta Police Bureau detectives. (Trial Tr. 506, et seq.).
80. The statement by petitioner was involuntarily made
and should not have been introduced.
81. The statement was induced by threats of violence
made to petitioner shortly before the statement was given.
(0) Exclusion Of Two Prospective Jurors Without
Sufficient Examination Of Their Views Regarding
Capital Punishment Was Constitutional Error.
82. The trial court improperly excused two prospective
jurors without adequate examination of their views regarding
capital punishment in contravention of petitioner's Sixth,
Eighth and Fourteenth Amendment rights.
Facts in support of petitioner's contention
that trial court exclusion of two prospec-
tive jurors without adequate examination of
"thelr views on capital punishment contravened
petitioner's rights.
83. The trial court excluded two prospective jurors after
a brief examination of their views regarding the death penalty.
{P'r. 96-99, 128-30).
84. No inquiry was made prior to exclusion of the two
jurors regarding their ability or inability to set their con-
victions aside and do their duty as a citizen; nor were they
asked what effect the State's request for the death penalty
might have upon their deliberations regarding guilt.
85. The Court made no inquiry regarding whether their
views regarding the death penalty would affect their ability
to abide by their oath as jurors.
86. The evidence upon which the Court excluded the
jurors was inadequate, and the Court's failure to make further
inquiry before excluding both was error.
(P) Petitioner Was Denied The Effective Assistance
Of Counsel In Contravention Of The Sixth And
" Fourteenth Amendments.
87. Petitioner's trial counsel's failure to take a num-
ber of necessary steps prior to, during and after petitioner's
trial constituted ineffective assistance of counsel in contra-
vention of petitioner's Sixth and Fourteenth Amendment rights.
Facts in support of petitioner's ineffec-
tive assistance of counsel claim.
88. Among the actions, and failures to act, which con-
stitute ineffective assistance of counsel are the following:
(a) Counsel's failure to interview a single wit-
ness prior to trial;
“ily =
; 3
(b) Counsel's failure to secure the testimony of
witnesses who would have given testimony in support of either of
the two defenses which defense counsel recognized were available
to defendant;
(c) Counsel's failure to develop expert testimony
regarding the identity of the murder weapon;
(d) Counsel's failure to examine the prosecutor's
investigative file until the eve of trial;
(e) At trial, counsel failed to object to trial
court instructions which were contrary to Supreme Court stan-
dards;
(f) Counsel's failure to object to the District
Attorney's argument to the jury which directed the jury's atten-
tion to the appellate processes wherein life sentences had been
reduced to 15 or 18 years;
(g) Counsel's failure to develop on cross-examina-
tion of one of the State's key witnesses testimony regarding
promises made to him by Atlanta police detectives regarding
favorable recommendations which would be made in exchange for
his testimony;
(h) Counsel's failure to move for a continuance or
mistrial when he was taken by surprise regarding the pretrial
lineup procedure conducted in the courtroom the morning of trial;
(i) Counsel's failure to prepare for the sentencing
phase of the trial;
(j) Counsel's failure to develop testimony regard-
ing petitioner's life history which could have been considered
by the jury in mitigation of the guilt finding;
(k) Counsel's failure to respond to trial court's
request that he review the Court's sentencing report for
accuracy.
* ®
(Q) State Wrongfully Withheld from Petitioner
Statements Made To or By Prosecution
"Witnesses Which Materially Prejudiced
Petitioner in Contravention of His Due
Process Rights.
89. The State's pretrial withholding of statements made
to and by prosecution witnesses contravened the due process
clause of the Fourteenth Amendment.
Facts in support of petitioner's claims
“that withholding of statements to or
by two prosecution witnesses contravened
the due process clause of the Fourteenth
~ Amendment.
90. Prior to trial, petitioner sought through a Brady
motion statements of witnesses material to the prosecution of
the case. The State withheld from petitioner the statements of
two witnesses -- one an alleged confession of the defendant
allegedly made to a jail inmate and the other an impeaching
statement made by one of the prosecution witnesses.
91. The withholding of those statements materially
prejudiced the trial of the petitioner, and contravened the
due process clause of the Fourteenth Amendment of the Constitu-
tion of the United States.
{R}) Evidence Upon Which Petitioner Was Convicted
Failed to Prove His Guilt Beyond a Reasonable
Doubt.
92. Petitioner was convicted upon evidence which failed
to prove his guilt beyond a reasonable doubt, in contravention
of the due process clause of the Fourteenth Amendment.
Facts in support of petitioner's claim
that evidence failed to prove his guilt
beyond a reasonable doubt.
93. Petitioner was tried on the State's theory that he
was the triggerman who killed Frank Schlatt.
94. The State's theory was that only one of the persons
who robbed the Dixie Furniture Store was physically located at
the time of the shooting so as to have the opportunity to have
fired the shots which killed Frank Schlatt, and that petitioner
was that person.
95. Witnesses for the State were unable to state which
» »
of the co-defendants who were in the front portion of the
Store during the robbery was the triggerman (Tr. 245) or the
direction from which the shots came. (Tr. 293-94).
96. The expert testimony on which the State relied as to
the murder weapon was that it was "probably" a .38 Rossi.
(Tr. 413).
97. The evidence which the State offered as a basis for
petitioner's conviction was insufficient to prove beyond a
reasonable doubt that petitioner was guilty.
98. Each of the grounds listed in paragraphs 15 through
97 have been previously presented to the state courts.
99. Other than the extraordinary motion for new trial
filed in December, 1980, petitioner has no other motion,
petition or appeal now pending in any court, state or federal,
as to the judgment under attack.
100. The petitioner was represented by the following
attorneys:
(a) at the preliminary hearing, trial and appeal
to Georgia Supreme Court: John Turner, Esq., now with the
Fulton County District Attorney's Office, Fulton County
Courthouse, Atlanta, Georgia;
(b) on petition for certiorari: Robert H. Stroup,
Esg., 1515 Healey Bldg., 57 Forsyth 8t., N.W., Atlanta,
Georgia; Jack Greenberg, James M. Nabrit, III, John Charles
Boger, 10 Columbus Circle, New York, New York;
(c) in state habeas corpus, application for
certificate of probable cause to appeal to Georgia Supreme
Court, and petition for writ of certiorari to United States
Supreme Court: Stroup, Greenberg, Nabrit and Boger.
101. Petitioner was convicted on one count of malice
murder and two counts of armed robbery.
102. Petitioner has no future sentence to serve after
completion of the sentences imposed by the judgment under
attack.
> 3 ry
:
WHEREFORE, petitioner WARREN McCLESKEY prays that this
Court:
l. Issue a writ of habeas corpus to have petitioner
brought before it to the end that he may be discharged from his
unconstitutional confinement and restraint and/or be relieved
of his unconstitutional sentence of death;
2. Conduct a hearing at which proff may be offered
concerning the allegations of his petition;
3. Permit petitioner, who is indigent, to proceed with-
out prepayment of costs or fees;
4, Grant petitioner, who is indigent, sufficient funds
to secure expert testimony necessary to prove the facts as
alleged in his petition;
5. Grant petitioner the authority to obtain subpoenas
in forma pauperis for witnesses and documents necessary to prove
the facts as alleged in his petition;
6. Allow petitioner a reasonable period of time
subsequent to any hearing this Court determines to conduct, in
which to brief the issues of law raised by this petition;
7. Stay petitioner's execution pending final disposition
of this petition; and
8. Grant such other relief as may be appropriate.
Respectfully submitted,
Polit RN. Feces
ROBERT H. STROUP l
1515 Healey Building
57 Forsyth sSt., N.V.
Atlanta, Georgia 30303
JACK GREENBERG
JAMES M. NABRIT, 111
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR PETITIONER
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