General Legal Files (July)

    Supreme Court 

THOMAS O MARSHALL, CHIEF JUSTICE 

HAROLD G. CLARKE. PRESIDING JUSTICE State of Beorgia 

GEORGE T. SMITH JOLINE B. WILLIAMS, CLERK 

HARDY GREGORY, JR STATE JUDICIAL BUILDING HAZEL E. HALLFORD, DEPUTY CLERK 

CHARLES L. WELTNER Atlanta 30334 WM. SCOTT HENWOOD, REPORTER 

RICHARD BELL FAYE S. FOSTER, ASST. REPORTER 

WILLIS B. HUNT, UR 

JUSTICES 

July 2, 1987 
  

  

  

  

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Application No. 4103 

WARREN McCLESKEY V. RALPH KEMP, WARDEN 

The . cve Application for Certificate of Probable Cause to 

a~neal th: denial of habeas corpus has been docketed in the 

§ me Curt today and assigned the number shown above. 

: Joline B. Williams, Clerk 

BY =A. er 
  

 



8 7 REPEL AIL 7 ARAL hak NEE Tae 0 A nd ee RS ER AAT Rr PC HST NT Fo 5 TOR EBS Eb 1 A PE LAN nr TR le SCA A SRA AT AI Ye or oT A 2 Alwar 

  

Applic. No. 4103 

SUPREME COURT OF GEORGIA 

July 7, 1987 
ATLANTA 

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed: 

WARREN McCLESKEY V. RALPH KEMP, WARDEN 

Upon consideration of this Application for Certificate of 

Probable Cause, it is ordered that it be hereby denied. 

It is further ordered that the Motion for Stay of Execution 

filed in this matter is also denied. 

SUPREME COURT OF THE STATE OF GEORGIA, 

CLERK’S OFFICE, ATLANTA 

I certify that the above is a true extract from the minutes 

of the Supreme Court of Georgia. 

Witness my signature and the seal of said court hereto affixed 

the day and year last above written. 

enc 5 ll ais Clerk. 

 



  

IN THE SUPREME COURT OF GEORGIA 

WARREN MCCLESKEY, 

Applicant, 
APPLICATION NO. 

  

Ve 

RALPH KEMP, WARDEN, | 
: 

HABEAS CORPUS 

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Respondent. 

  

RESPONSE TO APPLICATION FOR A CERTIFICATE OF PROBABLE 
CAUSE TO APPEAL AND MOTION FOR STAY OF EXECUTION 

  

MICHAEL J. BOWERS 
Attorney General 

MARION O. GORDON 

First Assistant 
Attorney General 

Please serve: WILLIAM B. HILL, JR. 
Senior Assistant 

MARY BETH WESTMORELAND Attorney General 
132 State Judicial Bldg, 
40 Capitol Square, S.W. MARY BETH WESTMORELAND 
Atlanta, Georgia 30334 Assistant 

(404) 656-3349 Attorney General 

 



  

IN THE SUPREME COURT OF GEORGIA 

WARREN MCCLESKEY, 

Applicant, 
APPLICATION NO. 

  

Ve 

RALPH KEMP, WARDEN, 
HABEAS CORPUS 

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Respondent. 

  

RESPONSE TO APPLICATION FOR A CERTIFICATE OF PROBABLE 
CAUSE TO APPEAL AND MOTION FOR STAY OF EXECUTION 

  

Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, and submits the instant response to the 

application for a certificate of probable cause to appeal filed 

ot behalf of Warren McCleskey challenging the decision of the 

Superior Court of Butts County and response to the motion for a 

stay of execution. 

STATEMENT OF THE CASE 
  

On June 13, 1978, the grand jury of Fulton County, Georgia, 

returned a three count indictment against the Applicant, Warren 

McCleskey, and his three co-indictees, David Burney, Bernard 

Depree and Ben Wright, Jr., charging said individuals with the 

offense of murder and with two counts of armed robbery. The 

Applicant was tried separately beginning on October 9, 1978, 

and was found guilty on all three counts. The jury imposed the 

 



  

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death penalty after a separate sentencing proceeding on the 

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

committed while the Applicant was engaged in the commission of 

another capital felony and (2) the offense of murder was 

committed against a peace officer, corrections employee or 

fireman while engaged in the performance of his official 

duties, See O.C.G.A § 17-10-30(b)(2) and (b)(8). Consecutive 

life sentences were imposed on the two counts of armed robbery. 

The Applicant then appealed his convictions and sentences 

to the Supreme Court of Georgia. On appeal to this Court, the 

Applicant raised some ten grounds for relief including the 

following: (1) the application of the death penalty in the 

Applicant's case was arbitrary and discriminatory based on the 

unfettered discretion of the prosecutor; (2) a post-indictment 

lineup was conducted without the knowledge or presence of 

counsel; (3) the in-court identification by Ms. Barnwell should 

have been suppressed; (4) the in-court identification by 

witness Ross should have been suppressed; (5) the in-court 

identification by witness Umberger should have been suppressed; 

(6) the RL identification by witness Kiessling should 

have been suppressed; (7) the confession should have been 

suppressed as it was involuntary and made with the hope of 

benefit; (8) the prosecution failed to disclose all statements 

made by the Applicant and withheld impeaching evidence (this 

 



  

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allegation relates to the statement made to Offie Evans); (9) 

the prosecution failed to disclose impeaching evidence 

regarding Mamie Thomas; and (10) the trial court improperly 

admitted evidence of prior criminal acts. (Respondent's 

Exhibit No. 1) (References are to the exhibits submitted to the 

Superior Court of Butts County on the successive petition), 

The Supreme Court of Georgia affirmed the convictions and 

sentences and found all the above grounds to be without merit. 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). The 
  

Applicant subsequently filed a petition for a writ of 

certiorari to the Supreme Court of the United States asserting 

that the trial court improperly admitted evidence of other 

crimes, that the jury's discretion was not properly channelled 

and there was a deliberate withholding of the confession to 

Evans. Certiorari was denied by the Court. McCleskey v. 
  

Georgia, 449 U.S. 891 (1980). 

On January 5, 1981, the Applicant filed a petition for 

habeas corpus relief in the Superior Court of Butts County, 

Georgia as Case No. 4909. The following allegations were 

raised in the original petition: the death penalty was 

arbitrarily, capriciously and whimsically applied; the death 

penalty was imposed pursuant to a pattern and practice of 

discrimination; there were no theoretical justifications for 

the death penalty; the death sentence was cruel and unusual in 

the instant case; the Applicant was not afforded adequate 

notice and an opportunity to present evidence; the trial jury 

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was not a representative cross-section based upon the 

death-qualification of the jury; the jury was prosecution-prone 

based on the death-qualification of the jury; the trial court 

failed to adequately instruct jurors with scruples against the 

death penalty to subordinate their personal views; the 

introduction of the Applicant's statement was improper as he 

was arrested without a valid warrant and without probable 

cause; the Applicant's statements were involuntary; failure to 

disclose an "arrangement" with a police agent or informer 

(Offie Evans); deliberate withholding of the statement made by 

the Applicant to Evans; failure to appoint experts, including 

an investigator to contact witnesses, and to allow the 

Applicant to proceed in forma pauperis; displaying the 

Applicant to certain witnesses pretrial; impermissible charge 

on the presumption of mental state; the assistant district 

attorney arguing at the sentencing phase relating to the 

reduction of a previous sentence; the admission of evidence of 

the Applicant's participation in other robberies without 

instruction; the charge at the guilt-innocence phase regarding 

the use of indenendent crimes; challenge to the appellate 

review procedure; the means of implementing the death penalty; 

ineffective assistance of counsel. (Respondent's Exhibit No. 

2) 4 

Applicant subsequently filed an amendment to that petition 

in which he challenged the introduction into evidence of his 

 



  

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statements to "an informer" and raised a challenge essentially 

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

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

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

habeas corpus relief. (Respondent's Exhibit No. 4). The 

Supreme Court of Georgia denied the subsequent application for 

a certificate of probable cause to appeal on June 7, 1981. A 

subsequent petition for a writ of certiorari was denied by the 

Supreme Court of the United States on November 30, 1981. 

On December 30, 1981, the Applicant filed a petition for 

habeas corpus relief in the United States District Court for 

the Northern District of Georgia. Evidentiary hearings were 

held before that court. in August, 1983, and in October, 1983. 

An order was entered on February 1, 1984, in which the court 

rejected all the issues raised in the petition except for the 

alleged undisclosed deal with witness Evans. The court 

directed that habeas relief be granted as to that issue and 

ordered that the conviction and sentence for malice murder be 

set aside, but affirmed the convictions for armed robbery. 
— 

McCleskey v, Zant, 508 .F., Supp. 338 (M.D.Ga. 1984), 
  

Both parties appealed the decision of the district court to 

the United States Court of Appeals for the Eleventh Circuit. 

On March 28, 1984, the Eleventh Circuit Court of Appeals 

directed that the case be heard initially by the court sitting 

 



  5 

en banc. On January 29%, 1985, the en banc court issued an 

opinion which affirmed all convictions and sentences. 

McCleskey v. Kemp, 753 P.24.877 (llth Cir. 1985) {en banc). 
  

The Applicant then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. In that 

petition, the Applicant asserted that the death penalty was 

discriminatorily applied, that there was a violation of Giglio 

Vv, United States, 405 U.S. 150 (1972), based upon the testimony 
  

of Offie Evans, that the charge on intent was impermissibly 

burden-shifting and that the jury was impermissibly qualified 

as to capital punishment. The Supreme Court of the United 

States subsequently granted the petition for a writ of 

certiorari limited to the consideration of the application of 

‘the death penalty. On April 22, 1987, the Court issued an 

opinion concluding that the Applicant had not shown 

discrimination in the imposition of the death penalty as to his 

case and affirmed the decision of the Eleventh Circuit Court of 

Appeals. On or about May 16, 1987, Applicant filed a petition 

for rehearing by ‘that Court. In that petition, Applicant 

reasserted his claim of ineffective assistance of counsel at 

the sentencing phase, reasserted his claim related to the 

charge on intent and reasserted his claim relating to a 

violation of Giglio v. United States, asserting that the 
  

decision in United States v. Bagley, 474 U.S. 1. 105 S.Ct. 
  

3375 (1985), justified the granting of the petition. On June 

8, 1987, that Court denied the petition for rehearing. 

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On June 8, 1987, 

  

a successive state habeas corpus petition 

        

  

was filed in the Superior Court of Butts County, Georgia. That 

      

  

petition raised the following allegations: (1) the prosecutor 

     

  

discriminated in the use of peremptory strikes; (2) there was 

        
       

intentional discrimination in this case; (3) the state failed 

to disclose impeaching evidence (the alleged "deal" with Offie 

(4)       Evans) ; the trial court erred in denying funds for a      
   

  

      
      
   

          

ballistics expert; and (5) the prosecutor improperly referred 

to appellate review in his argument at the sentencing phase. 

    On June 18, 1987, Respondent filed a motion to dismiss 
  

asserting that the petition was successive.    
On June 22, 1987, the Respondent received the order of the 

  

        

    
    
    
   
   
    
   

    district court dated June 16, 1987, making the mandate of the 
  

United States Court of Appeals for the Eleventh Circuit the 

judgment of the district court and lifting the stay of 

execution entered when the first federal habeas corpus petition 

was filed. 

      Also on June 22, 1987, Applicant filed a first amendment to 

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

Applicant raised two new allegations, that is, that Offie Evans 

was acting as an agent for the State at the time the Applicant 

  

    
       

made statements to Evans and that the prosecutor failed to 

correct alleged misleading testimony by Evans. 

     
  

On June 24, 1987, the Superior Court of Fulton County,      

    

Georgia entered an order scheduling a new execution time frame 

        

  

beginning at noon July 14, 1987. 

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On June 26, 1987, Respondent filed supplemental responses 

to the amendment on June 29, 1987, and a hearing was held 

before the Superior Court of Butts County, sitting in Henry 

County. At that hearing, Applicant filed a memorandum of law 

in opposition to the motion to dismiss, 

On July 1, 1987, the state habeas corpus court entered an 

order granting Respondent's motion to dismiss finding that the 

issues were either barred from reconsideration under res 

judicata or could reasonably have been raised in the previous 

petition, 

SUCCESSIVE PETITION 
  

Respondent submits that the instant petition is successive 

under Georgia law and fails to state a claim upon which relief 

can pe. granted. See O.C.G.A. . § 9-14-51. Under this code 

section all claims for relief must be raised in the first state 

habeas corpus petition unless they could not have reasonably 

been raised or unless they are constitutionally nonwaivable. 

Smith Vv. Zant, 250 Ga. 645, 30} s.,B.2d 32 (1983). As a 
  

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threshold matter, the court must consider whether the 

petitioner is entitled to a hearing on the merits of the 

claims. Respondent would submit that the super {of court 

properly determined that Applicant was not entitled to a 

hearing on the merits of any of the claims presented. 

Additionally, under state law the principles of res judicata 

 



  

preclude reconsideration of claims previously considered and 

decided adversely to the Applicant absent a ahowing of a 

significant change in the applicable law. Stevens v. Kemp, 254 
  

  

Ga. 228, 327 S.E.24 185 (1985). This rule only becomes 

inapplicable when the grounds for relief are based on a change 

in the law occurring subsequent to the prior habeas corpus 

proceeding. Id. at 230. Respondent submits that the superior 

court properly found that there is no change in the law 

applicable to the facts and circumstances of the instant case 
    

which would justify reconsidering any of the issues previously 

decided adversely to the Applicant. 

ALLEGATIONS OF PETITION 
  

A. SYSTEMATIC EXCLUSION OF BLACK 

JURORS BY PEREMPTORY STRIKES. 

In his first allegation in the superior court, Applicant 

asserts that the prosecutor used his peremptory strikes to 

systematically exclude black jurors at trial. Applicant relies 

on the holding of Batson v. Kentucky, U.S. r 106° S.Ct, 
  

1712 (1986), in support of his claim. Applicant asserts that 

Batson constitutes new law and that the issue could not have 

reasonably been raised previously. 

As noted by the Applicant, this claim has never been raised 

previously, although the issue itself could have been raised 

under the standard of Swain v. Alabama, 380 U.S. 202 (1965). 
  

 



  
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Batson v. Kentucky changed the standard to be applied in 
    

determining if there existed an equal protection violation; 

however, the claim has been available to be raised. 

Applicant's assertion of new law is simply not supported by the 

decisions of various courts. The Supreme Court of the United 

States has specifically held that Batson v. Kentucky is not 
  

retroactive in collateral proceedings "where the judgment of 

conviction was rendered, the availability of appeal exhausted, 

and the time for petition for certiorari had elapsed." Allen 

v. Hardy, U.S. » 106-S.. Ct, 2878, 2380 n.1l (1986), 
  

Applicant's only assertion is that Batson should be applied 

retroactively as this is a death penalty case. Both the courts 

of this state and the Eleventh Circuit Court of Appeals have 

declined to apply Batson v. Kentucky retroactively to death 
  

penalty cases. See High v. Kemp, No. 85-8989 (llth Cir. June 
  

4, 1987); Bowden v, Kemp, 256 Ga. 70, S.E.2d4 y-$1986); 
  

Fleming v. Kemp, No. 86-V-662 (Butts Sup. Ct. June 20, 1986). 
  

Thus, Respondent submits that there is no justification for 

this Court's applying Batson v. Kentucky retroactively to the 
  

circumstances of this case. 

Therefore, as the instant allegation could have previously 

been raised under the old standard and as the standard 

enunciated in Batson v. Kentucky, supra, does not apply in the 
  

instant case, Respondent submits that the superior court 
  

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properly found this claim to be successive and precluded from 

review on the merits. Further, it is clear that the claim 

fails to state a basis upon which relief can be granted. 

B. INTENTIONAL DISCRIMINATION, 

Applicant next asserts that there was intentional racial 

discrimination in the imposition of the death penalty in his 

case. Applicant asserts there was a pattern and practice 

statewide and in Fulton County of discriminating against black 

defendants who killed white victims. Applicant relies on 

statistical evidence previously offered to the United States 

District Court and asserts that he is now attempting to show 

intentional discrimination in his case. The only additional 

facts asserted by the Applicant are the utilization of 

peremptory strikes by the district attorney. 

This allegation has been previously raised and decided 

adversely to the Applicant both in his first state habeas 

corpus petition and in his federal habeas corpus petition. 

Thus, under Stevens v. Kemp, supra, and the principles of res 
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judicata, this Court should decline to reconsider this issue as 

did the superior court. 

Applicant asserted in the superior court that the decision 

by the Supreme Court of the United States in his own case 

constitutes new law which for the first time advises him that 

he can prove intentional discrimination in his own case. 

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Respondent submits that this argument is frivolous. The 

supreme Court of the United States did no more than affirm 

equal protection cases which have always required a showing of 

intentional and purposeful discrimination. In fact, Respondent 

has consistently asserted throughout the proceedings in this 

case that intentional discrimination must be shown. Applicant 

was on notice of this standard well prior to the time of the 

decision in his case by the Supreme Court of the United 

States. Applicant asserted before the superior court that he 

relied on previous cases utilizing statistical evidence to 

prove discrimination. All of these cases involved issues of 

jury composition or Title VII claims, not challenges to a 

capital sentencing procedure. Applicant has cited to no court 

finding discrimination in the application of the death penalty 

based on statistics alone, In fact the courts of this state 

and circuit have consistently denied relief on such claims. 

Applicant has not asserted any evidence before this Court 

that he could not have presented previously. In fact, Applicant 

took the deposition of the assistant district attorney for the 

First state habeas corpus proceeding and also took the 

deposition of the district attorney of Fulton County in federal 

court. Applicant advised the district court of the actual 

composition of his jury and could have advised the court of the 

racial makeup of the prosecutor's strikes. Respondent submits 

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that the superior court properly found "there is no new law to 

take this issue outside the principles of res judicata." State 
  

habeas corpus order at 7. The decision in Batson v. Kentucky 
  

is simply irrelevant to this claim. That decision did not 

establish a new constitutional right, but a new standard of 

proof. Thus ‘this Court should decline to consider this claim, 

C. NONDISCLOSURE OF IMPEACHING 

EVIDENCE. 

In his third allegation, Applicant asserts that the 

prosecutor failed to disclose certain "critical" impeaching 

evidence in the form of an alleged agreement with witness Offie 

Evans. Applicant also asserted before the superior court that 

he has affidavits from two jurors stating that Evans' testimony 

affected their decision. This allegation has previously been 

raised and litigated both in the state courts and in the 

federal courts and review should be precluded based upon the 

principles of res judicata. 

Initially, Respondent submits that the superior court 
— 

properly found the affidavits of the jurors to be 

inadmissable. State habeas corpus order at 8 n.l. Georgia law 

specifically provides, "the affidavits of jurors may be taken 

+0 sustain but not to impeach their verdicts." 0.C.G.A. § 

9-10-9. This statute has its roots in the common law purpose 

of preserving public policy considerations such as protecting  



  

jurors from post-trial harrassment, finalizing verdicts and 

keeping inviolate the sanctity of the deliberations. See Downs 
  

vy, State, 145 ca, App, 588, 244:5.E.24:113 {(1978),. The   

affidavits of the two jurors submitted in this case are simply 

inadmissible and are irrelevant. Further, the portions of the 

affidavits relating to the possible effect on deliberations of 

evidence not submitted at trial are inadmissable as calling for 

speculation by the affiants. Further, Applicant has shown no 

taint of the jury deliberations which would justify this type 

of inquiry. Therefore, the affidavits should not be considered 

by this Court. 

Respondent also submits that Applicant has failed to show 

that there is any new law justifying reconsideration of this 

claim which was previously decided adversely to him on the 

merits. When first considering this claim in state court, the 

court concluded that a simple ex parte recommendation of the 

detective was not sufficient to trigger the applicability of 

Giglio v. United Stateg, 405 U.S. 150 (1972). The court 
  

further noted that the prosecutor was not aware of any 

ender siandings between Evans and a detective from the Atlanta 

police department. The court noted that absent any other 

evidence the court was not going to conclude that an agreement 

existed merely because of the subsequent disposition of 

criminal charges against the witness. (State habeas corpus 

order at 8). 

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Although the United States District Court granted relief on 

this claim, the Eleventh Circuit Court.of Appeals sitting en 

banc declined to grant relief and in-fact found this allegation 

to be without merit. In its opinion, the court relied upon 

Giglio, supra, and held, "The detective's promise to speak a 
  

word falls far short of the understanding reached in Giglio and 

Napue." McClegskey Vv. Kemp, supra, 753 P.24 at 884. The court 
  

went on to note, "The detective's statement offered such a 

marginal benefit, as indicated by Evans, that it is doubtful it 

would motivate a reluctant witness or that disclosure of the 

statement would have had any effect on his credibility.” Id. 

The en banc court thus declined to find any due process 

violation. The court did not stop. its analysis at that point, 

however. The court went on to examine the question of whether, 

if there were a due process violation, it would be harmless. 

The court found the following: 

In any event, there is no "reasonable 

likelihood" that the State's failure to 

disclose the detective's cryptic 
— 

wy 

statement or Evans' different escape 

scenario affected the judgment of the 

JUIVe .o.« « Evans! credibility was 

exposed to substantial impeachment even 

without the detective's statement and 

the inconsistent description of his 

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Id. The 

of Evans 

not find 

affected 

escape. The prosecutor began his 

direct examination by having Evans 

recite a litany of past convictions. 

Evans admitted to convictions for 

forgery, two burglaries, larcenies, 

carrying a concealed weapon, and theft 

from the United States mail. On cross 

examination, McCleskey's attorney 

attempted to portray Evans as a 

"orofessional criminal’. Evans. also 

admitted that he was testifying to 

protect himself and one of McCleskey's 

codefendants. In light of this 

substantial impeachment evidence, we 

find it unlikely that the undisclosed 

information would have affected the 

jury's assessment of Evans' credibility. 

court went on to conclude that although the testimony 

added weight to the prosecution's case, the court did 

that it "could 'in any reasonable likelihood have 

the. judgment .'™ “14. at. 3885, quoting Giglio, supra at 
  

154. The court then went into great detail as to why it made 

this finding, citing evidence at trial and argument by the 

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prosecutor. "Thus, although Evan's testimony might well be 

regarded as important in certain respects, the corroboration of 

that testimony was such that the revelation of the Giglio 

promise would not reasonably affect the jury's assessment of 

his credibility and therefore would have no effect on the 

jury!s decision.” McCleskey v. Kemp, supra at 885. 
  

Thus, the first state habeas corpus court found that there 

was no promise and the federal courts have found that not only 

was there no promise, but even if there had been a promise, the 

failure to disclose such a promise would have been harmless 

under the circumstances of this case, 

Applicant asserts that the court should reconsider this 

claim, citing to the two affidavits of the jurors which 

Respondent submits were properly excluded by the lower court 

and asserting that there has been a change in the law, citing 

United States v. Bagley, 474 U.S. rr 1058 ,Ct, 3375 (1985); 
  

Brown Vv. Wainwright, 785 P.2d4 1457 (llth Cir.=1985); and Haber 
  

V. Wainwright, 756 FP.2d:1520 (llth Cir. 1985). : Respondent 
  

submits that these three cases do not represent a change in the 

applicable law to this case and do not give cause to reconsider 

this issue. 

In United States v. Bagley, supra, the Court reiterated its 
  

prior holding regarding the disclosure of exculpatory and 

impeaching evidence. The Court noted that the error in that 

case, if there were any, was the failure to assist the defense 

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by disclosing information that might have been helpful in 

conducting cross-examination. The Court noted that this 

alleged suppression would be a constitutional violation only if 

it deprived the defendant of a fair trial and this would be 

found only if the evidence was material "in the sense that its 

suppression undermined confidence in the outcome of the 

trial.” 14., 105 s.Ct.=at 3381. The Court derived the 

standard from previous cases of the Court noting, "The evidence 

is material only if there is a reasonable probability that, had 

the evidence been disclosed to the defense, the results of the 

proceeding would have been different. A 'reasonable 

probabililty' is a probability sufficient to undermine 

confidence in the outcome." Id. at 33834. Respondent submits 

that this standard is simply not new as it is based upon prior 

cases of the court and is actually the standard applied by the 

Eleventh Circuit Court of Appeals sitting en banc in this case. 

In fact, the two Eleventh Circuit cases cited by the 

Applicant as new law actually cite to.the en banc decision in 

  
  

McCleskey v. Kemp, supra with approval. In Brown Vv. 

Wainwright, supra, the court noted that the case did not 
  

involve mere nondisclosure under those circumstances but a 

knowing introduction of false testimony and an exploitation 

thereof. "The appropriate standard is that of Giglio and 

Bagley brought forward in our en banc decision in McCleskey v. 
  

Kemp, 753 F.2d 877, 885 (11th Cir. 1985)(en banc)." ' Brown v, 
  

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Wainwright, supra at 1464. Thus, Brown specifically 
  

acknowledges the continuing validity of the decision of 

McCleskey, supra and cited McCleskey for the prevailing 
    

standard. Again, in Haber v. Wainwright, the court cited to 
  

McCleskey noting the holding that the comment by the detective 
  

was of marginal benefit and also that it was harmless error. 

Id. at n.7.° Thus, neither one of these cases even implicates 

the validity of the decision in McCleskey v. Kemp and certainly 
  

does not constitute new law. Respondent submits that the 

standard applied by the Eleventh Circuit Court of Appeals was a 

correct statement of the law. In fact, the Applicant himself 

sought to have the Supreme Court of the United States rehear 

this allegation asserting that Bagley was the new law and that 

Court declined to grant rehearing. 

Applicant's only other assertion for reconsidering this 

claim is a reference to the affidavits of the trial jurors and 

the allegation of false and misleading information. Once 

again, the affidavits of the trial jurors should not be 

admissible for any consideration at this stage. The effect of 
~ 

these affidavits would be to virtually impeach the verdict of 

those jurors assuming they have different information. Even in 

federal court, inquiry into the mental processes of a juror may 

not be used as evidence in a subsequent challenge to the 

decision. See Proffitt v. Wainwright, 6385 F.2d 1227, 1255 
  

(llth Cir, 1982). 

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In relation to the assertion that Evans would testify in 

more detail at this stage of the proceedings, Applicant has 

failed to show why he could not have presented any additional 

evidence at an earlier time. Evans testified before the state 

habeas corpus court in the Applicant's first habeas 

proceeding. Applicant had ample opportunity to question Evans 

at that time and to conduct a deposition of the assistant 

district attorney. Had the Applicant desired to make further 

inquiry, the Applicant could have taken the deposition of the 

detective mentioned by Evans, but Applicant did not do so. 

Thus, Respondent submits that Applicant has failed to show why 

any information allegedly available now could not have been 

presented previously. 

This allegation is a classic example of an issue which has 

been raised and decided previously and which, as properly found 

by the superior court, should not be reconsidered in a later 

petition based on the doctrine of res judicata. 
  

D. DENIAL OF FUNDS FOR A BALLISTICS 

~ . EXPERT. 

Applicant next asserts that the trial court improperly 

denied his motion for funds for a ballistics expert. Applicant 

asserts that while this allegation has been decided previously, 

there is new law in the form of the decision in Ake v. 

Oklahoma, U.S. 1-105 8, Ct, 1087 (1985), which would 
  

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: 

Justify reconsideration of this claim. Applicant also cites 

the decision of the Eleventh Circuit Court of Appeals in Moore 

v. Kemp, 809 P,24 702 (11th Cir. '1987)(en banc). 
  

Respondent submits that this allegation again is precluded 

based on the principles of res judicata or in the alternative, 

fails to state a claim upon which relief can be granted. 

Applicant raised this assertion in his first state habeas 

corpus petition filed-in Butts County. In ruling on this 

allegation, the state habeas corpus court found the following: 

As to a ballistics expert, the State's 

witness, Kelly Fite, testified that the 

murder weapon was probably a .38 Rossi, 

but no weapon was ever recovered or 

introduced at trial. (H.T. 44-45), 

Mr. Fite stated that his opinion was 

based on an accumulation of data for 

several years plus a check with the 

F.B.I. record file in Washington. 

{Pite deposition, p. 4). Mr. Pite also 

stated that only two other type weapons 

were possibilities. (Id., p. 7). Even 

if another expert had testified, it is 

doubtful that such testimony could have 

sufficiently refuted the totality of 

evidence against Applicant. 

=] 

 



  

Respondent's Exhibit No. 4 at 10. The court went on to note 

that traditionally the appointment of expert witnesses lies 

within the discretion of the trial court. The:court 

specifically held, however, that "Applicant demonstrated no 

special need for the appointment of an investigator, nor did 
1 
: 

Petitioner reguest the appointment of a ballistics expert.” 
    

Id. (Emphasis added). Thus, in finding that there was no 

abuse of discretion, the court specifically found as fact that 

there was no request for a ballistics expert prior to trial nor 

was there any need shown for such expert. 

Respondent first submits that Ake v. Oklahoma, supra, 
  

applies strictly to a request for psychiatric examination. 

Although certain standards set forth in that decision might 

apply in a different context, that case involved solely the 

question of a psychiatric examination. Furthermore, as noted 

by the lower court, the principles of law set forth in Ake v, 

Oklahoma, supra, are not entirely new to Georgia constitutional 
  

law, at least insofar as they relate to psychiatric 

examinations. See Messer v. Kemp, No. 86-V-670 (Butts Superior 
  

Court, June Ch 1986). Furthermore, in Caldwell v. 
  

Mississippi, U.S. />105.8.Ct. 2633 11985), the Court 
  

considered an allegation of a denial of experts other than 

psychiatric experts subsequent to the decision of Ake v, 

Oklahoma, supra. The Court specifically found in that case it 
  

had no need to determine as a matter of federal constitutional 

3D 

 



  

1 
¥ 3 

law "what if any showing would have entitled the defendant to 

assistance Of the type sought here." Id. ati 2637:n,l.,: The 

clear implication of this statement is that Ake v. Oklahoma 
  

does not necessarily relate to nonpsychiatric experts. The 

Court went on to hold in Caldwell, supra, "Given that the 
  

Applicant offered little more than undeveloped assertions that 

the request for assistance would be beneficial, we find no 

deprivation of due process in the trial judge's decision.” 

Id. Under the circumstances of the instant case, therefore, 

Respondent submits that Ake v. Oklahoma does not constitute a 
  

change in the applicable law, In fact, in the instant case 
  

there was no request for a ballistics expert made prior to 

trial. Although in his memorandum to the lower court, 

Petitioner characterizes this as an assertion by Respondent 

that the request was "insufficiently specific," Respondent has 

shown the court that there was simply no request whatsoever for 

a ballistics expert. Although Applicant made a bold assertion 

that trial counsel could elaborate on any oral proffer made to 

the trial court, Applicant could have developed this alleged 

"evidence" at the first state habeas hearing when trial counsel 

testified. The lack of a request was the basis of the decision 

of the state habeas court on the first petition as well as the 

second petition and under those circumstances, the law has not 

=33- 

 



  

] 
3 

Re 
E
e
 

changed. As found by the lower court, "it is clear that 

Petitioner could not show that he demonstrated to the trial 

court that the issue of ballistics evidence was to be a 

significant factor in his trial, as he never requested the 
  

appointment of a ballistics expert." State habeas order at 
  

  

10. Thus, under the doctrine of res judicata, or because the 

allegation fails to state a claim upon which relief can be 

granted, this Court should decline to reconsider this issue. 

E. PROSECUTOR'S REFERENCE TO 

APPELLATE REVIEW, 

Applicant asserts that the prosecutor deliberately referred 

to appellate review in his closing argument the sentencing 

phase. Applicant claims that the prosecutor referred to the 

Applicant having previously received three life sentences on 

other charges which had been reduced and asserted that perhaps 

the reduction had occurred on appellate review. Applicant 

assarts that this allegedly directed the jury's attention to 

the fact that Applicant had previously received sentences that 

had been reduced on appeal and that argument somehow affected 

the jury's deliberation as to sentencing in the instant case. 

Applicant now asserts that this court should reconsider this 

claim based upon the decision in Caldwell v, Mississippi, supra. 
  

This allegation was raised and decided adversely to the 

Applicant in the first state habeas corpus petition. The 

-24~ 

 



  

relevant portion of the prosecutor's argument was set forth in 

the appendix to that order. In deciding this issue, the state 

habeas corpus court relied upon then Ga. Code Ann. § 27-2206 

which prohibited counsel from arguing that a defendant, if 

convicted, might not be required to suffer the full penalty due 

to the possibility of clemency. The court also cited the 

decision of the Supreme Court of Georgia in Prevatte v, State, 
  

233. Ga. 929(6)-214 S.P.24:365 (1975). The state habeas corpus 

court found the following: 

Here, the prosecution used the 

talismanic words "appellate process", 

but it was in reference to a prior life 

sentence petitioner had gotten reduced, 

not to the possibility that a life 

sentence could be reduced if the jury 

decided to impose such a sentence, 

Since the words referred to a past 

conviction, the Court cannot conclude 

that the words had the inevitable 

efraok of encouraging the jury to 

attach diminished consequence to their 

verdict and take less than full 

responsibility for determining life or 

death, an effect found improper in 

Prevatte v, State, 233 Ca. 929(6) 
  

(1975). 

Respondent's Exhibit No. 4 at 13. 
-35 

 



  

: 
1 

Thus, the state habeas corpus court decided the issue based 

upon a case decided in 1975 which set forth essentially the 

same principles as that set forth in Caldwell v, Mississippi, 
  

supra. In fact, as noted by the Applicant, the same standard 

has been in effect in the state of Georgia since 1848. See 

Monroe v, State, 5 Ga. 85 (1848). Furthermore, as noted by the 
  

Superior Court in the instant proceeding, Caldwell recognized   

that this type of argument had been condemned since Furman v. 
  

Georgia, 408 U.S. 238 (1972), "lt is therefore not surprising 

that legal authorities almost uniformly have condemned the sort 

of argument offered by the prosecutor here. For example, this 

has been the view of almost all of the state supreme courts 

that have dealt with this question since Furman v. Georgia, 408 
  

  

U.S. 2384.92 S.Ct, 2726, 33 L.EA.24.346 (1972). Caldwell, 

supra, 105 s.Ct, at 2642, The Court referred in a footnote in 

support of this position to Hawes v, State, 240 Ga, 327, 333, 
  

240 S.BR.24. 833, 839 (1977) and Fleming v. State, 240 Ga. 142, 
  

146, 240 s.E.24 37, 40 (1977), both of which specifically rely 

on Prevatte, supra. 

Applicant asserts that Caldwell is still new law requiring 

  

  

reconsideration of the issue, asserting that there is a 

difference between Georgia state law principles and a 

constitutional principle. This ignores the fact that, 

regardless of the basis for the holding in Prevatte, the 
  

iY A 

 



  

i 

“ 

var 

= 

R. 
# 

ri 

conclusion was the same as in Caldwell. "We find a violation 
  

of this precept in the instant case, in that the inevitable 

effect of the prosecutor's remarks to the jury in the jury's 

presence was to encourage the jury to attach diminished 

consequence to their verdict, and to take less than full 

responsibility for their awesome task of determining life or 

death for the prisoners before them." Prevatte, supra, 233 Ga. 
  

at 931, In:Caldwell, the Court-held, "it is constitutionally 
  

impermissible to rest a death sentence on a determination made 

by a sentencer who has been led to believe that the 

responsibility for determining the appropriateness of the 

defendant's death rests elsewhere.” 14., 105 S.Ct. at 2639, 

It is clear that the two cases rest upon the identical premise, 

that a prosecutor may not diminish the jury's sense of 

responsibility for its own actions by implying that 

responsibility rests elsewhere. Thus, even though Prevatte 
  

does not utilize "constitutional" terminology, the holding is 

the same as Caldwell and Caldwell is not new law in Georgia. 
    

Thus, Caldwell v. Mississippi does not set forth any new 
~ 
  

standard of law which would justify reconsidering this issue 

and the superior court properly found this claim barred due to 

the doctrine of res judicata. 

hie J 

 



  

: 

3 
3 
1 

PF. AGENT OR INFORMANT WITNESS 

AND 

G. MISLEADING STATEMENTS OF EVANS 

As his ground F, Applicant asserts that the state used at 

trial incriminatory statements made by Applicant to an alleged 

jailhouse informant or agent allegedly acting on behalf of the 

state. This is an extension of the Giglio issue previously 

litigated extensively throughout the state and federal courts. 

Applicant, although he has consistently asserted that he made 

no incriminatory statements to anyone at the jail, asserts that 

Offie Evans acted as an agent on behalf of the state and 

elicited statements from the Applicant after the Applicant had 

been appointed counsel, thus violating his right to counsel, 

  

citing Masgiah v. United States, 377 U.S. 201 (1964); United 

States v, Henry, 447 U.S, 264 (1980): Maine v. Moulton, 
  

  

UD.S. 106 8,Ct. 477 (1985): Kuhlmann v, Wilson, U.S. 
  

, 106 S.Ct. 2616 (1986). Applicant has never previously raised 

an allegation directly asserting an alleged denial of counsel 

or a factual claim that Offie Evans was a state agent at the 

time that the Applicant made incriminating statements to Evans. 

The state habeas corpus court found that this allegation 

was only a variation of the previously raised allegation of an 

"arrangement" between Evans and the state, citing paragraph 21 

of the first state habeas corpus petition. (Respondent's 

Exhibit No. 2). The court concluded that there was nothing to 

support the allegation of "newly uncovered evidence" of an 

-28- 

 



  

3 

a 

arrangement and that the claim was barred by the doctrine of 

res judicata. State habeas corpus order at 13.. As his 

ground G, Applicant asserts that the state failed to correct 

the so-called misleading testimony of a "key witness" at trial, 

again referring to Offie Evans. The state habeas corpus court 

found that no valid reason why Applicant could not have 

obtained the statement earlier, thus finding that Applicant 

"could have reasonably raised this claim previously." State 

habeas corpus order at 14. 

In support of both of these claims, Applicant offers a 

statement purportedly made by Offie Evans to the police 

authorities prior to Applicant's trial. As his excuse for 

failing to have raised the claims previously or for failing to 

have presented this evidence previously, Applicant asserts that 

there is now new law in the State of Georgia which allowed him 

to obtain this statement of Evans which he allegedly could not 

have obtained earlier. Respondent submits that both of these 

claims are clearly successive under the meaning of 0.C.G.A. § 

OPEN RECORDS ACT 
  

Initially, it should be noted that Applicant's 

interpretation of the Open Records Act and Applicant's 

interpretation of the recent decision by the Supreme Court of 

=70- 

 



  

Georgia in Napper v. Georgia Television Company, No. 44381 (Ga. 
  

May 6, 1987), ignores prior precedents of this court. The Open 

Records Act was initially enacted in 1959 and it has been 

amended in subsequent years, most recently in 1982. This act 

provides, "All state, county, and municipal records, except 

those which by order of a court of this state or by law are 

prohibited from being open to inspection by the general public, 

shall be open for a personal inspection of any citizen of this 

state at a reasonable time and place; and those in charge of 

such records shall not refuse this privilege to any citizen." 

0.C.G.A. § 50-18-70(a). ‘In 1976, the Supreme Court of Georgia 

examined a complaint under the Open Records Act where a sheriff 

refused to allow representatives of local newspapers to inspect 

files the sheriff maintained relating to the death of inmates 

under his supervision. Houston v. Rutledge, 237 Ga. 764, 229 
  

S.E.2d 624 (1976). The court examined in detail the definition 

of "public records" within the meaning of this statute. In 

examining the question of public records of law enforcement 

officers and officials, the court held the following: 

We do not believe that the General 

Assembly intended that all public 

records of law enforcement officers and 

officials be open for inspection by 

citizens as soon as such report is 

prepared. Statements, memoranda, 

30 

 



     
         
  

narrative reports, etc. made and 

maintained in the course of a pending 

       
    

investigation should not in most 
  

      
           

    

instances, in the public interest, be 
    

  

i available for inspection by the 
    

    
    
    
        
    
       
    
    
    
    
    

  

public. However, once an investigation 
  

is concluded and the file is closed, 
  

either with or without prosecution by 

the state, such public records in most 

instances should be available for 

public inspection. When a controversy 

of this nature arises between a 

citizen and a public official, the 

judiciary has the rather important duty 

of determining whether inspection or 

non-inspection of the public records is 

     
    

   

    in the public interest. In short, the 

judiciary must balance the interest of 

  

     
    
    
           
     
     

the public in favor of inspection 
— 

Be 

against the interest of the public in 

favor of non-inspection in deciding 

this issue. 

Houston v. Rutledge, supra, 237 Ga. at 765. (Emphasis added). 
  

    

In specific reference to criminal activity, the court held the 

following:



  

Generally, the public records that are 

prepared and maintained in a current 

and continuing investigation of 

possible criminal activity should not 

be opened for public inspection. On 

the other hand, and again generally, 

public records prepared and maintained 

in a concluded investigation of alleged 
  

or actual criminal activity should be 

available for public inspection, 

ih Id. at 765-766. (Emphasis added). 

Additionally, the court specifically addressed the question 

of the inspection of records of internal investigations of the 

Atlanta Police Department in Brown v. Minter, 243 Ga. 397, 254 
  

S.E.24 326 (1979). . The court again set forth a balancing test 

to be applied, noting an exception to the disclosure 

requirement only of on-going investigations, not completed 

investigations. 

In the decision cited by the Applicant, that is, Napper v. 
  

—_ 

Georgia Television Company, supra, this court referred to the 
  

definition of public records set forth in Houston v. Rutledge, 
  

supra. The court did no more than consider certain exemptions 

to this statute and again reiterated the fact that the 

judiciary had to balance the interests involved. The court 

-32- 

 



  

also:cited to its decision in Harris v. Cox Enterprises, Inc., 
  

256 Ga..299,-398 S.E.28 448 (1986). In Harris as in Houston v, 
  

Rutledge, the court had concluded that even criminal files 
  

would be subject to disclosure under the Open Records Act as 

long as the files are actually closed and unless some 

exceptional circumstance can be shown. "The court in Napper ‘did 

no more than reaffirm its prior holdings in Houston v. Rutledge 
  

and Harris v, Cox Enterprises, Inc, in determining that the 
  

pendency of a post-conviction collateral proceeding would not 

be sufficient to conclude that the records were not subject to 

disclosure. 

Thus, Respondent submits that it is clear that Napper v.   

Georgia Television Company, supra, does not constitute a change 
  

in the law which would justify the Applicant having failed to 

make an Open Records Act request for almost nine years from the 

time of his-trial to the present. date. “In fact, apparently 

Applicant did not make the Open Records Act request until 

within the last month, without offering any satisfactory 

explanation of why he could not have made this same request 

after the completion of his direct appeal. Under the law 

existing at that time, had access been denied Applicant could 

have requested the court to make a judicial balancing 

determination required under the statute and prevailing case 

law to determine whether the document or documents sought 

should appropriately have been produced pursuant to the Open 

-33- 

 



  

Records Act. As found by the state habeas corpus court "there 

is legal authority giving him the right to access to this 

document.” State habeas corpus order at 13. Thus, Applicant 

has simply failed to demonstrate that he could not have 

4 obtained this evidence prior to the filing of his first state 

habeas corpus petition. 

The Applicant attempted to excuse his failure to previously 

request the statement in his argument before the superior court 

by claiming he did not know there was a "written" statement by 

Evans and before this court asserts that not until June 10, 

1987 did counsel have any knowledge the state possessed such a 

statement. A review of the record shows that counsel should 

have been aware of such a statement through such a review and 

the exercise of common sense. 

Prior to trial, the court conducted an. in camera inspection 

of certain unspecified material, noting "the Court finds that 

although the documents might become material for rebuttal at 

trial, they are not now subject to discovery." (T7.R. 46). 

(Respondent's Bxhibit No. 6). This clearly indicated counsel 

was free to renew the request at trial. 

Subsequently, Applicant testified in his own behalf at 

trial and denied being present at the crime. During 

cross-examination, the assistant district attorney questioned 

the Applicant as to whether he had a girlfriend, whether she 

had taken part in any of the robberies, and other statements. 

-34 - 

 



  

The assistant district attorney asked the Applicant if he had 

ever made the comment that Mary Jenkins made up his face for 

the robbery. {(T. 828). The Applicant specifically testified 

that he had never talked to any of Ben Wright's relatives in 

jail, thus denying that Evans ever told him that he was a 

relative of Ben Wright. {T. 29), During cross-examination, 

objection was made by counsel for the Applicant indicating to 

the trial court that he had asked for all statements of the 

Applicant. The court stated, "he has a statement that was 

furnished to the Court but it doesn't help your client." :(T.T, 

830). Cross-examination continued. The Applicant consistently 

denied making any admissions or incriminatory statements while 

at the jail, although he admitted having conversations with 

Bernard Depree. The Applicant specifically denied ever 

admitting that he killed anyone. 

Subsequently, as a part of the rebuttal case only, the 
  

state presented the testimony of Deputy Hamilton from the 

Pulton County Jail. Deputy Hamilton testified as to the 

location of the Applicant while he was incarcerated at the jail 

and testified that Offie Evans came to him with some 

information, (T, 861), See Respondent's Exhibit No. 9. 

Evans then was called to testify on behalf of the state. 

During his testimony, Evans elaborated in great detail on his 

prior convictions, on his pending escape charge from a federal 

halfway house and his opinion that he would not actually be 

~35< 

 



  

charged with the escape. He then testified concerning his 

conversations with the Applicant while in the Jail at Pulton 

County. He testified that he did have conversations with the 

Applicant concerning the «crime, but did not specifically 

testify who initiated the conversations. In fact, he simply 

testified that they had several conversations. (T. 869-70). 

Applicant's counsel thoroughly cross-examined Evans concerning 

his criminal record and what took place at the jail. Counsel 

for the Applicant did not request a copy of Evans' statement at 

that time in spite of the notification by.the trial court in 

the previous written order that a motion for such discovery or 

production could be made at a subsequent time. Further, prior 

to the testimony of the next witness, the trial court 

instructed the jury that all evidence submitted by the state 

since the defendant had rested was solely for the purpose of 

impeachment and no other purpose. (T. 885). (See Respondent's 

Exhibit No. 9). Thus, the jury was fully advised that the 

testimony of Offie Evans was usable only for the limited 

purpose of- impeachment of the testimony of the Applicant and 

for no other purpose. 

On direct appeal counsel raised an allegation relating to 

the failure to disclose statements of the applicant and the 

alleged withholding of impeaching evidence. In the brief 

counsel states, "Offie Gene Evans' statement contained 

36 

 



  

4 
“ 
X 

El 

substantial impeachment value." (Respondent's Exhibit No. 1 at 

14). In the opinion on direct appeal the court held, "The 

prosecutor showed the defense counsel his file, but did not 

furnish this witness' [Evans] statement." McCleskey v, State, 
  

supra, 245 Ga, at 112. This makes it clear that there was a 

statement of Evans consisting of his conversations with the 
  

Applicant. In addition to all of the above, present counsel 

for the Applicant has certainly known of the existence of the 

statement by Offie Evans at least since the time counsel read 

the trial transcript as well as from the date of the first 

state habeas corpus hearing. * At that hearing, John Turner, 

trial counsel for the Applicant, testified that he did not have 

Evans' statement prior to trial. Further, Offie Evans 

testified before the habeas corpus court. Counsel for the 

Applicant apparently did not seek to acquire the statement 

through any means either prior or subsequent to the first 

evidentiary hearing before this Court. Although the statement 

is mentioned in the deposition of Mr. Parker, and clear 

reference is_made to an in camera inspection of the statement 

of Evans, (Parker dep. at 8), Applicant again did not seek to 

obtain the statement at that time either by subpoena or by 

requesting it under the Open Records Act. Certainly, Applicant 

could have made these minimal efforts to obtain the statement 

of Evans. 

37 

 



  

Applicant has asserted that he was led to believe he had 

been given the prosecutor's file at the state habeas 

proceeding. A review of the deposition of the assistant 

district attorney shows that he obviously gave counsel the 

entire file that was made available to the defense prior to { 
: 

trial. Mr. Parker specifically testified that "COffie Evans 

gave his statement but it was not introduced at trial. lt was 

part of the matter that was made in camera inspection (sic) by 

the 3udge:prior to trial." (Parker dep. at 8), Certainly this 

advised counsel there was a written statement, as a court 

cannot make an in camera inspection of an oral statement. 

Counsel simply failed to look at the information provided to 

him to see if the statement was there. Further, the letter in 

Applicant's Exhibit 11. is simply a letter to a court reporter 
  

advising the reporter that no further material will be 

forthcoming. Thus, Applicant should reasonably have known of 

the existence of the statement. 

SMITH V. ZANT 
  

— 
> 

Applicant has asserted that he should be entitled to raise 

these claims at this time based upon his construction of the 

decision in Napper v. Georgia Television Company, supra, as 
  

constituting new law, and also based on an assertion that the 

holding of the Supreme Court of Georgia in Smith v. Zant, 250 
  

Ga, 645, 30) s.E.24 32 (1983), entitles him to pursue this 

38 

 



  

3 

| 
) 

Th 
wa
d 

i 
h
i
s
 

dl
 

a 

claim at this time. Respondent submits that neither the 

decision in Napper, nor the principles set forth in Smith v. 
  

zant, supra, entitle the Applicant to have these issues 
  

litigated at this late stage of the proceedings. 

As noted previously, Applicant has simply failed to show 

why he could not have made an Open Records Act request for the 

document in question prior to the filing of his first state 

habeas corpus petition or certainly prior to the filing of his 

first federal habeas corpus petition without waiting until this 

late date to 40 s0. Applicant's proffered excuse that Napper 

constitutes new law has been demonstrated to be without merit, 

and thus is insufficient to compel this Court to ignore: the 

successive petition bar. 

Secondly, Respondent submits that this case is factually 

distinguishable from Smith v, Zant, supra. : In Swmith,.. supra, 
    

the court was faced with an allegation "that the failure of the 

prosecution to correct the testimony of John Maree, an 

accomplice and eyewitness who Lestified againes Smith at his 

trial, that he [Maree] had no plea agreement with the state 

when that statement was not true, denied him [Smith] due 

process and a fair trial." Id. at 646, The Georgia Supreme 

Court ruled that a hearing must be held on the merits of the 

claim despite the successive petition bar of 0.C.G.A. § 

9-14-51. The court noted that it appeared at trial that Maree 

had no agreement with the state in exchange for his testimony 

-39- 

 



  

except for the protection of his family and himself. Further, 

in his closing argument, the district attorney referred to the 

fact that if he had anything to do with it John Maree would be 

convicted of two counts of murder,: and specifically stated that 

there had been no promise made. Subsequent to the first state 

corpus habeas proceedings, another lawyer obtained information 

from the former district attorney which specifically indicated 

that there may in fact have been an agreement between Maree and 

the state. In fact the former district attorney signed an 

affidavit, subsequent to the first state habeas corpus 

proceedings, swearing. to the Fact that he had offered a deal to 

Maree for a life sentence in exchange for his testimony and 

stating that he had never informed any of the attorneys of this 

agreement. Under those circumstances, where there was 

knowledge specifically within the mind of the prosecutor and 

unavailable from any other source, the court concluded that the 

state had the duty to disclose such information and could not 

shift the burden to the defendant to obtain the information. 

A pivotal point in that case was the fact that Smith had 

before the Share habeas corpus court the actual affidavit of 

the district attorney stating information directly contrary to 

that stated at trial, information which had previously been 

solely within the knowledge of the district attorney and only 

subsequent to the first habeas corpus proceeding had become 

discoverable by and available to the Applicant in that case. 

-40- 

 



  

i 
i 

In the instant case, the Applicant has presented a 

statement of Offie Evans which Applicant obtained under the 

Open Records Act, which statement was not exclusively within 

the knowledge of the district attorney and which statement was 

discoverable by the Applicant prior to his first habeas corpus 
  

proceeding had he simply pursued the Open Records Act avenue at 

that time. 

Another factual distinction between Smith v. Zant, and the 
  

instant case is .the fact that the petitioner in Smith v. Zant, 
  

supra, totally lacked any factual basis upon which to pursue 

the question of an undisclosed deal, while in this case, the 

Applicant knew at trial that the subject statement of Evans 

existed. 

Another major distinction between this case and that of 

Smith v. Zant, is the nature of the testimony given at the 
  

trial of Smith and the nature of the affidavit obtained before 

the filing of the second state habeas corpus petition on behalf 

of smith. In this case, the statement of Offie Evans is unlike 

the affidavit of the district attorney in Smith's case, Until 

the information regarding an alleged undisclosed deal was 

revealed hy the district attorney in Smith, the petitioner had 

no knowledge of or means to obtain the information. Here the 

Applicant himself made the statements to Evans, knew what Evans 

told him and also knew the statement existed before the end of 

the trial. 

=41= 

 



  

4 

SE
PE
L 

BV
H 

Furthermore, Applicant has not shown circumstances similar 

to those in Smith v. Zant, supra, i.e., that the statement of 
  

Evans is directly contrary to the information provided by the 

prosecutor at trial. The key factor in Smith was that the 

affidavit was by the prosecutor himself directly contradicting 

the argument he had given at trial and the testimony of the 

witness Maree at trial. In this case, the statement of Evans 

does not directly contradict any information presented at 

trial. The statement does not, contrary to the assertion of 

Applicant, indicate in any fashion that Evans was an agent of 

the state. The most the Applicant has pointed to in this 

latter regard is a reference by Evans that he attempted to call 

Applicant's girlfriend while the prosecutor and the detectives 

were sitting nearby. This reference does not indicate when 

this occurrence took place in relation to any of the other 

conversations made, nor is there any indication Evans elicited 

any incriminating information from Applicant at the request or 

direction of any- state official. In fact, the statement of 

Evans tends to support the theory that Evans, perhaps through 

his own initiative, had conversations with the Applicant and 

Depree, which conversations Evans subsequently related to the 

state authorities. This does not establish that Evans was 

acting as an agent for the state, nor does it give any 

indication that he was. Furthermore, this information was not 

contrary to anything presented at trial, as the statement 

ye 

 



  

presented by the Applicant indicates that there were numerous 

conversations held at the jail, which is similar to the 

testimony presented at trial. 

A review of the first state habeas corpus petition shows 

that Applicant previously asserted Evans was acting as "a 

police agent or informer." (Respondent's Exhibit No. 2 at 5). 

Applicant now seeks to assert that this violated his right to 

counsel. No reason has been shown to reconsider the allegation 

relating to Evans being a state agent as there is no new law 

relating to this claim and Applicant failed to present any 

evidence to the first state habeas corpus court to support the 

claim, Purther as found by the lower court in the instant 

action, there is no "newly uncovered evidence" which would 

justify reconsideration of the issue. (This was clearly not a 

ruling on the merits by the superior court), 

In relation to Applicant's claim of misleading statements, 

again, Applicant has failed to prove that he could not 

reasonably have raised this claim previously. As the statement 

could have been obtained earlier, the claim is clearly 

successive. As Applicant has had every opportunity at trial 

and in state habeas corpus to cross-examine Evans and the 

assistant district attorney and failed to show any material 

discrepancies, Applicant has failed to show any information 

which would justify consideration of this claim at this stage 

of the proceeding. 

dS 

 



  

Respondent submits that it is clear that both of these 

issues are clearly successive within the meaning of state law. 

Applicant has not shown that he could not have raised claim G 

in his first state habeas corpus petition, nor has he shown 

that he could not have obtained the statement of Evans prior to 

this late stage of the proceedings. 

Thus, the state habeas corpus court properly determined 

that these two claims were barred from review either under the 

doctrine of res judicata or under 0.C.G.A. § 9-14-51].   

~44~ 

 



  

CONCLUSION 
  

WHEREFORE, for all of the above and foregoing reasons, 

Respondent submits that the instant application for a 

certificate of probable cause to appeal be denied and that this 

: Court deny the motion for a stay of execution. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

- 

Wi Ura A HU, rps 
WILLIAM B., HILL, JO%.° 354725 
Senior Assistant Attorney General 

  

Ea WESTMORELAND /750150 
Assistant Attorney General 

  

MARY BETH WESTMORELAND 

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

de 

 



  

CEFRTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing Response to Application for a 

Certificate of Probable Cause to Appeal and Motion for a 

Stay of Execution, by hand delivering two copies of same 

£0 Robert:H. Stroup. 

This uA day. of .July 1987. 

  

MARY BETH WESTMORELAND 

Assistant 

Attorney General 

-46~