General Legal Files (July)
Public Court Documents
July 2, 1987 - July 7, 1987

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Case Files, McCleskey Legal Records. General Legal Files (July), 1987. 4958f31b-63a7-ef11-8a69-6045bdd667da. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d3c09c0a-9d3a-457c-b371-7efeaa90e46b/general-legal-files-july. Accessed April 27, 2025.
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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 = 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 % ¥ % ¥ % X * * F 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 * oF F k Xk OF * ¥ * 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 3 4 i 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 4 3 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 «3 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 4 4 1 3 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. 6 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. ty 3 i i a u a l . de 3 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 ~ 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). A 3 a 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 -10- % b] 4 |) | 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 — ~N 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. -1]1-~- 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 -12- 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). -14- 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 -15- 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 -16- | 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 -17- i d t 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, -18- 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). -19- 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 -20=~ : 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~