Georgia, B, 1847-1993, Undated

BRUNO, Sheppard, black, elec. Ga, (Bopgnerty) on NOW Lf» 199?

*

HE old Jim Davis road that winds “,g** y J
through the swamp near Albany, (4 ac
Georgia, is a scene of sinister ¢
beauty. Butterflies and small birds
flash in and out of the marshy
jungle of sycamores, giant oaks
and hickory saplings. Sunlight flickers
through the gray-green moss draping
the trees and creates an_ intricate
shadow pattern on the mouldering
earth. Everything combines to give
the roadside an atmosphere of brood-
ing mystery, of impending horror.
Lonnie Hewett and his cousin,
Junior, felt the mood of the swamp as
they took a short cut through it on
their way to town that morning of
AP September 18, 1938.
“Swell place for a murder,” Lon-

nie commented as he jumped over a
small, brackish stream.
i “Yeah,” Junior agreed. “It’s pretty
{ as all get out, but it’s scary, too. I'll
be glad when we get out of this
i! jungle.”
“It’s a great spot for making love,
too,” Lonnie continued.
{ Junior pushed a straggling vine out
He of his face. Then he shivered. “I
4 don’t know about you, but I don’t
|
i
|
i
{
!
‘
}

\s

think I’d want to bring my girl out
here. A person could get robbed or
murdered, and no one could hear.”

The boys were nearing the edge of
the swamp now. They climbed up a
short embankment toward the road.
Suddenly Lonnie stopped and pointed
stiffly to a spot in the deep shade just
ahead of them.

Junior looked to the spot where
Lonnie was pointing. He stood still,
horrified. He opened his mouth, but
nothing came out.

Finally, Lonnie croaked, “Jeepers!
Who'd a thought—?”

“Just. what we were talking about,”
Junior muttered.

. VS. There on the side of the road ahead
1a ; of them was a parked automobile. The
~

ety atin st a an mB

door on the driver’s side sagged open
spilling out the body of a man. A
i body lay on the ground near-

y.

The boys crept closer and saw that
blood covered both bodies. Even in
their inexperienced minds was little
doubt that they were looking at the
result of a horrible, violent murder.

They stared only a moment, but
that moment seemed like an eternity.
Fe Lonnie whispered, “What’ll we

re) ”

Junior hesitated only a moment.
“We've got to tell the police,” he
rasped. They ran towards town.

A half-hour later, Dougherty Coun-
ty’s Sheriff O. F. Tarver, Deputy Cull ‘i ) :
Campbell, Deputy W. S. Gibson, Cor- ae Oa s ane ie 7 ae
oner C. W. Thomas and two visiting

eae THE: Loney RoaoSgyroven THE
son, arrived at the scene. ee

Cer SWAMP: WAS" GOOD, SPOT FOR A
liminary examination, while ae
around Mataniog. Ad ee MM URDER —A N: p F 0 R A DOUBL E-
into. a gaping wound at the back of

ow nets dace aeett? * MURDER qt WAS. IDEAL—ALMOST ~

The coroner didn’t answer until
after he examined the dried blood , 4
which gente the long hair to the ‘| ‘
skull. Then he looked up at Tarver.

‘I'd say she’s been dead between

“7

twelve and sixteen hours.” _" a ; ~' &
“In other words, she died early last ae

“evening,” Tarver asked. Pad ' me
Thomas nodded. " ™

During this conversation, Sumner,
6 the Sheriff of Worth County, had been
|


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Bi
By
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‘ha
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SLAIN
Walton Moree, one of the victims, was
known to the husband of dead woman.

studying the woman’s face intently, as

if it were vaguely familiar. Suddenly,.

he whistled sharply. “I know who she
is!” he exclaimed. “She’s’ Ernest
Aultman’s wife.”

Tarver’s face livened with interest.

“Is that so?” he commented. “Can
you identify the man also?”
Sumner bent over the _ body

sprawled across the running board of
the machine. He studied the man’s
face carefully. Finally, he nodded his
head. “Yes, I know this man, too.
His name is Walton Moree. Both he
and Mrs. Aultman are from Worth
County.”

The portly Tarver, Dougherty Coun-
ty Sheriff, turned to the coroner.
“Shotgun wound?” he queried.

“Partly,” Thomas answered.

“What do you mean ‘partly’?”

“Looks to me like she’s been shot
with two different guns, fired from
opposite directions.” ?

Tarver looked startled. “What about
Moree’s wounds?”

The coroner moved over to the other
body and examined the flesh under
the torn places in the man’s clothing.
“He’s been shot five times, once by a
shotgun at very close range. The other
wounds look as if they were made by
a rifle or pistol.”

Tarver lighted a cigar and mused

FOOTPRINTS———
in the wet sand of the Jim Davis road
gave the police their first good clue.

TOTeeline

SLAYER
The killer turned out to be a kindly
faced, bespectacled old sharecropper.

over these facts for a moment. “What’s
the possibility that one killed the
other and then committed suicide?”
he asked presently.

The coroner shook his __ head.
“There’s no gun in sight,” he pointed
out. “And even if there was, the posi-
tion of the wounds make it impos-
sible for either one to have shot him-
self or herself.”

‘“Let’s see what we can find around
here,” Tarver said to the other officers.
“Look for the death weapons, foot-
prints or anything else which might
give us a lead.”

searching the road and the swamp

near the automobile. Presently,
Deputy Gibson handed his chief two
discharged shotgun shells that he
found. Deputy Campbell’s discovery
was a handful of miscellaneous re-
ceipts bearing Aultman’s name and
an empty paper sack.

Sheriff Sumner, who had penetrated
further into the woody swamp, let out
a whoop. “Here are some footprints!”
he shouted.

Tarver hurried over to where Sum-
ner stood and looked down. In the
sandy loam at their feet were two
distinct sets of footprints, both lead-
ing away from the bodies. One print

T= men spread out and _ began

SLAIN

Mrs. Ernest Aultman, the other victim,

an attractive, pi a woman.

was especially distinctive. The shoe
that had made it was terribly worn.
Apparently part of the toe of the shoe
was gone, for the mark of a man’s big
toe stood out plainly in each track.

Sheriff Tarver gestured toward the
toe track. “That should help us track
down the killer,” he observed.

“It’s not an especially large print
though,” Sumner added. “Must of
been made by a shoe sized about
eight.” _

Tarver nodded absently and began
studying the other prints. They were
considerably larger than the other
pair, he noticed. He turned to Gibson.
“I want plaster casts made of these
footprints,” he said. “Get going on
that while Sumner and I see where
they lead to.”

Gibson nodded and went away. Tar-
ver and Sumner trailed the tracks on
a zig-zag course through the swamp
to the edge of the Jim Davis road
where they disappeared. Tarver made
a note of the exact location where they
faded out and marked the direction
toward which they were pointed.
Then he and the visiting sheriff went
back into the swamp and hunted once
more for the death weapons and clues.
After an hour, they gave up the
search. They had found nothing.

An ambulance arrived and removed

When the slayer figured the Grunes would be away from their home (above), he
broke in and stole their shotgun, which he later used in the double killing.

(7


19

n, do you
enough to
ark?”

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Vho might
for killing
reasonable
mus. Also,
surance on

ut the in-

desk and
1 had been
=o bodies.
told Ault-

a moment.
she kept
she was
the sheriff

up. “But
> Saturday
MISSING,
the mur-
would the
take her

a Tarver’s
‘ight about
tha clever
e purse to
vat did the

> question
ve I can
while. “It

A) iu
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> Aultman
she have

le room.
to begin,

Tarver.

to the in-
med with
y one, the
ony., The
ed as to
ark said
n had not
were dead

' last per-
> repeated
to Sheriff

‘rated and
The ver-
‘were shot
arties un-
ime.”

with full

arver an-
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funds for
or slayers
vict them.
wrote to
aske it
an -

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agent and

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Dougherty

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Wvudie AL Pesce DO Usa ssece die ania
bafiy’s. city police force assisted in the
extensive investigation that followed.

Tarver’s first move was to send the
slips of paper found at the scene to
the FBI in Washington for fingerprint
examination. Then, he attended one
of the funerals and ordered a deputy
to attend the other. Both men were
on’ the alert for some slip of the
tongue, some furtive expression or
action which might furnish them a
clue.

They watched the behavior of the
mourners intently. They noted all
who were in attendance and mentally
eliminated them through processes of
reasoning. They had to admit, when
the services were over, that no one
had made any suspicious movements.
_ Tarver examined the clothes Walton
Moree was wearing when his body
was found. He searched the pockets.
There was nothing in them, not even
a wallet. This strengthened Ault-
man’s suspicion that the murder mo-
tive was robbery. The sheriff kept in
mind, however, that the theft of Mrs.
Aultman’s purse and Moree’s wallet
could have been a deliberate move on
the part of the slayer to make the
killing look like the result of a rob-
bery.

Sheriff Tarver checked again into
the private lives of Mrs. Aultman and
Moree. He eliminated a long list of
persons who might have been jealous
or have borne a grudge against one or
the other of the victims. But he
found not one suspect in the lot.

When all else had failed, Tarver

‘again led his officers to the picturesque

swamp near the Jim Davis road, to the
point where the mysterious footprints
had faded out. Resolutely, his eyes
swept the countryside. Several mod-
est homes of tenant farmers were
visible through the fig and chinaberry
trees. His eyes rested on one of them.

“Let’s go,” he said, turning to his
men and headed toward the nearest
house.

ETUNIAS and elephant ears flour-

ished in pots and pans on the porch

of the weather-beaten, plank-sided
tenant-farmer house.. Tarver’s knock
brought an elderly woman to the door.
She peered out cautiously.

“What do you want?” she asked.

“Who lives here?” asked the sheriff.

“My husband and me,” the woman
replied. “Name’s Grune, Cleveland
Grune.

“Did you hear any shots in this
vicinity last Saturday night?”

“Don’t recollect hearing any,” she
said with a wave of her gnarled
hands. “We’re old folks. We go to
bed with the chickens.”

Tarver asked the woman to call
her husband in from the fields. When
he had arrived, Tarver asked him,
“Do you own a shotgun?”

“We did have a shotgun, Sheriff,”
Cleveland Grune answered. “Some-
one stole it.”

“What kind was it?”

“Sixteen gauge,” replied Grune.

Tarver whipped an object out of
his pocket. “Does it carry this kind
of a shell?”

Grune’s eyes blinked, as if in sur-
prise. “Yes, sir,” he answered.
“Them very kind of shells.”

“Were any shells stolen when the

was taken?”

“Yes, sir. Shells filled with buck-
shot and bird shot.” >

Tarver remembered Dr. Keaton’s
testimony about the foreign bodies

\

out, ‘Where were you and your wite
Saturday night?” g

‘““We were home in bed, Sheriff.”

“Can anyone else back up your
statement?”

“No, we were alone.”

“Did you hear any shots Saturday
night?” K

The man considered the question
as he fidgeted around in his chair.
“No, I didn’t. My wife and I were
sound asleep all night.” ;

After a moment, the sheriff said,
“We must search the house as a mat-
ter of routine.”

Grune nodded his consent.

As the officers made their way
through living room, bedroom, kitchen
and back porch, Deputy Campbell
asked Tarver, “What are we looking
for?” :

“Bloody clothes and a pair of shoes
with the toe cut out.”

But nothing of the sort was found.
However, the fact that the murder
weapon was of the same gauge as the
gun Grune claimed had been stolen
from his house looked suspicious. Had
someone in this very neighborhood
carried out the terrible deed?

Before leaving, Tarver asked the
old couple for a list of their neigh-
bors and friends. Then he asked,
“Whom do you suspect of stealing
your gun?”

“No one,” Grune replied. “It was
taken while we were gone from home.
We never lock our doors. I wish now

we had. But I don’t suspect anyone:

in particular.”

The party of officers proceeded to
the next tenant house on the deeply
shaded old Jim Davis road. At this
place the porch and house were in
very bad repair, and the premises were
dirty and upset.

“Tooks like a man lives here alone,”
remarked Tarver as he knocked on a
termite ridden doorpost.
was no answer, Tarver pushed open
the door and went inside. The others
followed him.

“No one at home,” the sheriff *com-
mented. ‘“Let’s look around anyway.”

The officers searched the house for
a shotgun. They found none. Tarver
noticed that what little furniture
there was, was old. Whoever lived
here was obviously very poor. Ina
bedroom, Tarver poked around in a
pile of old shoes. Presently, he se-
lected a pair which had‘ one.toe cut
out and wrapped them up in an old
newspaper.

As they were about to leave, some-
one came in at the front door. The
newcomer was a farmer in tattered
overalls. He wore no shoes at all.
His feet, Tarver noticed, were of
medium size.

“What is your name?” asked the
sheriff.

“Abner Biggs,” the man answered.
“What are you people doing here?”

“Did you hear any shots fired in
this vicinity Saturday night? We’re
investigating a couple of murders.”

“Shots? Why, nol”

Tarver was silent a moment. He
watched Biggs closely. “Have you
got a gun?” he asked. .

“No,” Biggs answered.

“Where were you Saturday night?”
Tarver barked out.

The farmer passed a hand weakly
over his sweating brow. “Saturday
night? Let’s see. I went to town for
a little while.”

“What time?”

“A little after dark.”

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DOUGHERTY COUNTY JAIL——

PIL GB pat” y
* a a

the bodies. After promising an im-
mediate autopsy, Coroner Thomas
followed the ambulance into town.
Presently, the two sheriffs and their
deputies drove away from the scene.

When the party were once more in
Tarver’s office in the white stone
courthouse in Albany, the Dougherty
County sheriff asked Sumner what he
knew about the Aultman family.
“Were the couple living together? Are
there any children?”

“Yes, they were living together,”
Sumner replied. “There are two small
daughters. I’ve always known the
Aultmans to be steady, reliable folks.”

Tarver bit off the end of his cigar
and lighted it while mulling over
Sumner’s answer. “Are you sure Mr.
and Mrs. Aultman were on good
terms?” he asked.

“Unless appearances are deceiving
they were,” Sumner replied. “They
gave the impression of being very

where the shotgun murderer was temporarily locked up to await trial for the
double killing of Walton Moree and Mrs. Ernest Aultman in the Georgia swamp.

happily married. They rarely fought.”

Sheriff Tarver frowned. “Then what
was she doing in such a secluded place
with another man?”

There was an expression of dismay
on the Worth County sheriff’s face.
“That’s what I can’t figure out. Moree’s
got a family, too, you know.” Then
after. a moment’s silence, he added,
“Maybe Moree was just giving the
woman a lift and some robber held
them up and killed them.”

“That’s possible,” Tarver admitted.
“But from the number of times both
of them were shot, it looks to me as if
the ‘motive was uncontrollable rage,
maybe revenge, or perhaps jealousy.
Perhaps someone close to one of them
saw them in the car together, put the
wrong meaning to it, followed them
and finished them off, out there at the
swamp.”

“Could be,” Sumner assented. “But
both of them came from highly_ re-

spected families. I wouldn’t think
either family would settle its griev-
ances that way.”

Tarver’s first step was to make a
thorough check on the movements of
the dead man and woman prior to
their murder. He went to the Ault-
man home near the Worth County line
and knocked at the door. Presently, a
man with lines of worry on his face
opened it.

“I’m looking for Ernest Aultman,”
aver said after he introduced him-
self.

“l’m Aultman,” the man replied. He
looked tired and drawn. His voice
was weary as he asked, “Why are you
here? What’s wrong?”

“First, I want to ask you a ques-
tion,’ Tarver countered. “Where is
your wife?”

“That’s what has me worried sick,”
the man answered. “I’ve been look-
ing for her all night long.”

“You didn’t look in the right place,”
Sheriff Tarver said gently. “I’ve got
bad news, Aultman. Your wife is
dead.”

“Dead?” Aultman_ echoed. He
clutched at the door jamb for support.

ARVER watched the man’s face

sharply for a reaction. There was an

odd expression on his_ features
which the sheriff couldn’t quite figure
out. It was obvious the man was torn
by conflicting emotions.

“Yes, she was murdered,” the
sheriff went on. “Near the old Jim
Davis road at the swamp. The body
of a man was there, too.”

“A man?” he questioned. “What
man? And why was a man there with
my wife?”

Tarver cleared his throat. “I had
an idea you might be able to answer
some of those questions, Aultman. But
in case you don’t already know, the
man was Walton Moree. I think you
are acquainted with him.”

“Yes, I know Walt Moree. But
what’s this all about?” he burst out.

“We haven’t figured that out yet,’ :

Tarver answered. “When was the
last time you saw your wife?”

The farmer drew a long breath and
braced himself against the door post.
“It was yesterday afternoon. I took

AN INVESTIGATOR

points to the spot where Mrs. Aultman’s
corpse was found by two boys at play.

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CONTINUED FROM PAGE 19

Aultman. They searched his country
home and went through his modest
effects. They were looking, in par-
ticular, for a shotgun which could
have fired the empty shells found on
the murder scene. But they found no
such weapon. They found no letters,
no legal papers, and no _ indication
that a divorce or separation had been
considered. :

Aultman’s small daughters could
throw no light on the deepening mys-
tery. They declared that the last time
they saw their mother alive was at the
door of the motion picture house in
Albany. And that was all they knew
about the mystery.

Early the following morning, Sheriff
Tarver started making the rounds of
Albany’s business houses, trying to
trace the route of Aultman’s jaunt
about town the previous Saturday
night. One merchant stated that Ault-
man had been looking for his wife
early in the evening.

That statement didn’t help Ault-
man’s case any. For by that time,
Mrs. Aultman had certainly kept her
appointment with Moree. Had Ault-
man found the two together? Sheriff
Tarver probed further, but this ques-
tion remained unanswered.

Tarver next contacted Coroner
Thomas and asked him for the autopsy
results. Thomas took out the reports
which had been made out by Dr. J.
C. Keaton.

“He couldn’t recover any of the
shot or the bullets,” Thomas stated.
“All Dr. Keaton could do was take
X-ray pictures of the wounds.”

The coroner took a number of X-ray
negatives out of a manila envelope.
He held them up to the light. one
after the other. “You can see the lo-
cation of the bird shot and the bullets,”

‘he remarked, pointing out the foreign

bodies deeply embedded in flesh. “The
position of the shot and bullets show
that two different weapons were used.
Also, these weapons were fired from
two directions. You’ll remember I
told you that when I looked: at the
bodies yesterday morning.”

The picture of the two sets of foot-
prints leading away from the murder
scene flashed through ‘Tarver’s mind.
He ordered a deputy to obtain all of
Aultman’s shoes. When the shoes
were brought to headquarters, they
were compared with the plaster casts
of the footprints at the slough. As
Tarver compared them, his jaw
dropped. Neither of the prints had
been made by any of Aultman’s shoes!

The sheriff questioned the boys who
had found the bodies again. There
was a chance they might have made
the footprints on their journey through
the slough. But the youths quickly
disproved such a theory. Both de-
clared that they had gone in the
opposite direction from the way the
footprints were leading.

The coroner scheduled the inquest
for three o’clock that afternoon. All
witnesses which Tarver and his depu-
ties had questioned were requested to
be present. In the meantime, Tarver
questioned Aultman again.

HE bereaved man, composed now
-f after a night’s rest, admitted making

the threat which the informant had

relayed to the sheriff.

* carefully.

“But Mr. Tarver,” argued Ault-_

man, “if I had kilied them, do you
suppose I’d have been dumb enough to
make that threatening remark?”

“Doesn’t seem likely,” Tarver ad-
mitted. “But you are the only per- |
son we've found so far who might %
have a plausible motive for killing ©
your wife and Moree. It is reasonable °:
to suppose you were jealous. Also,
there’s the matter of the insurance on ~
her life.’ s

“How did you know about the in-
surance?” asked Aultman.

Tarver reached into his desk and
drew out the papers which had been .
found scattered near the _ bodies.
“From these receipts,” he told Ault-
man.

The man was silent for a moment. |
“Where is the purse that she kept
those papers in—the one she was
carrying when I last saw her?”

“We found no purse,”’ the sheriff
sald.

Aultman’s face lighted up. “But
she had the purse with her Saturday
night,” he declared. “It’s missing.
That proves the motive for the mur-
ders is robbery. Why else would the
murderer or murderers take her
purse?”

A quizzical light came into Tarver’s
gray eyes. “You could be right about
it’s being robbery. Although a clever
killer would have taken the purse to
throw us off the track. What did the
purse look like?”

The man considered the question
“I don’t believe I can
describe it,” he said after a while. “It
was just an ordinary purse.”

Tarver’s face was grim. “Are you
positive she had a purse?” he asked
sternly.

“Of course I’m positive,” Aultman
replied. “What else would she have...
had those receipts in?”

Then a deputy entered the room.

“The inquest is ready to begin, 3
Sheriff,” he said.
“All right,” answered Tarver.

“We'll be right in.”

Tarver escorted Aultman to the in-
quest. The room was jammed with
curious spectators. One by one, the’
witnesses gave their testimony. The
informant who had testified as to
Aultman’s threatening remark said
that in his opinion Aultman had not
known ‘this wife and Moree were dead
when he made the remark.

Ernest Aultman was the last per-. :
son to take the stand. He repeated
his story, as he had told it to Sheriff
Tarver.

The coroner’s jury déliberated and
then returned its verdict. The ver-
dict was that the victims “were shot
to death by a party or parties un-
known to the jury at this time.”

Aultman was released with full
apologies of the law.

On the following day, Tarver an-.
nouneed that he had posted a $100:
reward of his own personal funds for:
apprehension of the slayer or slayers:
with enough proof to convict them.:
At the same time, he wrote to:
Governor E. D. Rivers and asked that:
the state of Georgia post an addi
tional reward.

The sheriff was then obliged
take an entirely fresh start. Willia
Rorer, former government agent an
resident of Albany, offered
services. Many Worth and Doughe

Cuullty GepL
bany’s city 5
extensive in

Tarver’s fi
slips of pap
the FBI in V
examination
of the funer
to attend th
on’ the aler
tongue, som
action whic)
clue.

They wat
mourners ir
who were in
eliminated t!
reasoning. '
the services
had made ai

Tarver exe
Moree was
was found.
There was n
a wallet. '
man’s suspic
tive was rob
mind, howev
Aultman’s p
could have b
the part of
killing look
bery.

Sheriff Ta
the private 1:
Moree. He
persons who
or have born
the other o
found not on

When all

‘again led his

swamp Near -
point where
had faded o
swept the co
est homes
visible throu
trees. His e}
“Let’s go,”
men and he
house.

ETUNIAS
ished in px
" Of the we:
tenant-farme
brought an e)

. She peered o

“What do
“Who lives
“My husba
replied. “N
Grune.
“Did you
vicinity last
“Don’t rec
said with a
hands. “We
bed with the
Tarver asi
her husband
he had arrr
“Do you own
“We did h
Cleveland Gi
one stole it.”
“What kin
“Sixteen
Tarver w
his pocket.
of a shell?”
Grune’s ey
prise. “Ye
“Them very !
“Were any

shot and birc
Tarver rei
testimony al


POSITION OF THE CORPSE

Walton Moree’s dead body was discovered in this position—half spilled out of
the car door on the driver’s side on the Jim Davis road through the swamp.

her and the children to Albany. They
got out of the car downtown. She said
she was going to take the girls to a
movie.”

“And she was with the children
when you left her?” Tarver probed.

The man nodded.

“Where are the children now?”

“They’re in the house,” Aultman
said. “They went to the movie alone,
and they said they were supposed to
wait for their mother on Broad Street.
Well, they waited almost all night.
Walton’s wife saw them and notified
the police. Officer Shiver brought
them home.”

“But how did it happen that you
didn’t find the children yourself?” the
sheriff questioned.

“I don’t know, unless it was be-
cause they weren’t at the spot where
we’d planned to meet. I thought per-
haps they’d gone on home without me,
so I came home, too. W.J. Revells,
a friend of mine, was with me. When
I got home, though, the wife and kids
weren’t here. I thought they’d come
in later and went to bed. I woke up
in the middle of the night and still
they weren’t here. I came out and
sat on the steps and was worrying
about what to do when Officer Shiver
brought the kids in.”

Tarver made notes on a small pad
as Aultman spoke. The man called
his children and they confirmed their
father’s statement.

When the children were dismissed,
Tarver asked Aultman how he had
occupied his time during the evening
while waiting for his family. ‘Just
a matter of routine, you know,” Tar-
ver explained.

Aultman nodded as if he under-
stood. “I just wandered about town,”
he said. “W.J. Revells was with me
for a couple or more hours.”

“Now,” said Tarver, “after your
children got home, what did you do,
80 back to bed?”

“Not on your life,” the farmer ex-
claimed. “I went looking for my wife.
I spent the rest of the night that way.”

“Just where did you look?” Tarver
asked.

“I checked with her relatives and
all our friends,” the man said.
Aultman readily gave the sheriff a

list of the families he had contacted
during the night. When Tarver left
Aultman, he went to see W. J. Revells.
The man readily substantiated his
friend’s statement. “It was about
11:30 p.m. when Ernest and I reached
his home,” Revells stated.

The man couldn’t throw any light
on the double murder mystery, how-
ever. He was deeply shocked when
Tarver told him the tragic news and
was at a loss to explain any part of it.

Coroner Thomas had set the time
of the murders as early Saturday
night. Tarver reflected that it would
have been possible for Aultman to
have trailed the couple to the swamp

' and killed them in plenty of time to

return and be with Revells when he
said he was. But was it plausible?
What motive would he have had?
And why was the highly respected
housewife in a car with another highly
respected citizen? What did it mean?

Aided by Sheriff Sumner, Tarver
began checking further on Aultman’s
statement. True enough, the persons
he had mentioned supported his story
about spending the night looking for
his wife. Then the two officers be-
gan checking Moree’s relatives for
possible clues to the mystery.

“I saw Aultman in Red Rock this
morning around eleven,” one relative
stated. “He asked me if I’d seen his
wife and said she hadn’t come home
the night before.”

“But why did he ask you about
her?” Tarver objected. “Do you think
he knew about Walton Moree?”

“Of course he knew about Walt,” '

the man declared. “In fact, he told
me he thought his wife had run off
with Walt.” :

“But he was determined to find her,
just the same, wasn’t he?” Tarver
persisted. ~

“He certainly was,” the man stated.
“But don’t get the idea I’m trying to
epee iiirieve Ernest,’”’ he amended has-
tily.

Tarver nodded briefly and went on.
“Did Aultman say what he was going
to do if he should find her?”

“Yes. He said he’d kill them if he
knew where they were. But I told
him he was nuts to consider such a
thing, and after he had talked to me

IT WAS HIS CASE——
Dougherty County’s brilliant Sheriff
0. F. Tarver, who solved the hard case.

a bit, he calmed down quiet a lot.”

ARVER felt a trifle jolted, even
Tinough he had been expecting to

hear just such testimony. He wiped
the perspiration from his brow, then
started back to Albany.

The sheriff explained what he had
learned to Deputy Campbell when he
got back to his office. The deputy
nodded. “I got the same story, Sher-
iff,’ he said. “From all I could hear,
Mrs. Aultman and Moree had met on
previous occasions.”

“That’s the way it looks to me,”
Tarver said. “Go and bring in Ault-
man.”

“But chief, what about evidence?”
Campbell objected.

Tarver was silent a moment as he
considered the question. “We've got
to bring him in, for his own protec-
tion if for nothing else. If there’s
any evidence against him, we’ll get it.
But I’d rather prove him innocent
than guilty any day.”

A couple of hours later, Deputy
Campbell, Deputy John Womble and
Deputy Gibson brought Aultman to
the sheriff’s office. The man was in
a state of collapse. He sobbed brok-
enly as Tarver tried to question him.

“I didn’t have anything to do with
the murders!” he insisted, over and
over...

Tarver had to steel himself against
giving ‘in to the sympathy which he
felt for the man. His large, firm fea-
tured face was like granite.

‘It’s our duty to investigate every
angle of this case,” he said sternly.
“We heard you made a threat against
your wife and Moree. I hope you're
not guilty, Aultman, but we’ve got to
make sure.”

Aultman, however, could offer no

more than he had previously said.

Under further questioning, the man
collapsed completely and a doctor was
called. With an. order from Judge
B. C. Gardner of the Dougherty Coun-
ty Superior Court, Aultman was taken
to a hotel and put to bed. A couple
of deputies stayed with him.

Tarver and his deputies worked
tirelessly during the next few hours
in an effort to get evidence either for
or against (Continued on page 56)


ee

Parte

LODL Jj ‘== 4 a

M Double Sla

breriff Believes

p Auliman Neat Here Saturday N

‘ te Y

‘Yerver Offers £100 of His Funde for!
Capture of Slayers of Walton Mer Mrs. Eruise

Gevernor Kivers'to Offer an Addi
’ y tional |
Aultman ‘Is Released and No "Charge Is Recting

Gictments;: <1; AtrsseBe ithe theory sat re
DAs Di © opbery wae the motive in the slay-
£ Jeaths sing near ‘here-Baturday-night of
poe A 28 se “Plead peeve “ane Mra. Ernest
aay ‘ 2 = S AvitMan, © e Oo. ‘ '
“Andicted Include “announced today that'he Sd pone
ft ndent of: “Pripe 64 $100 af his personal funds as-
z ' wat iifor apprehensi
Deputy Warden layer A ilies rasreag fia Btn
is os eonviet,” and added that he had
_| written to:Governor E. D. Rivers}:
asking thatthe offer an addi-
the al reward.’ ey eons
aay rs jury
¥ iturned a Verdict that the
33-year-old Worth County farm-

r Dovgherty Cou |
wife, were: shot to’ Geath “bya.
Sd payty or parties unknown to the
get. the ihre at: Unie time," "ae
oral “Mire A

Els, Hasparinte

pending against him,
manidacs eet 32 S9
no doubt-in-my mind
was the motive,” the
g faberi@ wale Gi oy ee tse
Witnenyén tesitfied ‘before’ the
Febrorer'sspury that Mrs, Aultman’s |
: personal papers were fotund dis-'
learded near the scene of the crime
i and that «footprints: were «found
leading ftom the Jocation to near-
here: the tracks were
<2 In the testimony; It was brought
oes ‘- renee in which,
: enxsen said, had previously
' placed the ‘papers, missing. No
; Witness was eble, however, to give
tan adequate. description of the
j purve, Thehandbag~was said to
| have been in-her possession when
she wae last seen alive. 1, .
} S Sheriff “oN. “Sumner, and his
j deputy, Davia’ Hudson, of - Worth
County, who! were’ in” Atbany at
‘the time the srime was uncovered

leading-from the fata!

| dared “Sheriff: Secaeria tat
iS evidentl¥ made by # worn-out
Fer with nO heel and apparently
i és the toe Worn away, leaving ®
sige markiin each shoe track.
sy shoe Was estimated to be of
lee ors t prints of the other
tue ere OF & shoe of somewhat
LW. J. Reveller of Wor

do Wed, 6 :
i ty. tectified that he bad met Aclt
man in Albany about 9 o’cidck Sat
\wtday night,” was with him ‘for

i. as
j

t, and Has Asked} |

“=: frome Page b

~
een

“whe Informed hint that Mrs. Ault-
man’s two children, who bad been
i} te the” movies, were waiting for
their: mother on Broad Avenue.
Ge When: the. two children. were
taken to their home, he said, Auit-
‘man. waa found sitting on the
front ‘steps, greatly, worried over |
tthe whereabouts of his wife.
hIverson Moree, of Worth, tes!
tified that he had seen. Auitman

; emed greatly worried about his
Wy missing wife. Aultman assumed
Es -" said, that bis
wife bad deserted him. a
=\*Aultman ‘said,’ 'l “would kill
& tham if I knew where they were,”
foree said; “hut I talked him-out
Bof that idea. J am sure he did not
now at thet time that they were
@ dead,” agg = +
SJL Stanley, insurance agent, |
and Dorris Wilder, merchant, teati- |
fied to {dentify papers found near;
the scene of the crime as those |
giveh to Mra. Aultman as receipts. |
"Prod. C, Keates, who examined |
the bodies, told the jury, that a)
; Hite o seek = » shotgun were |
Jexplained that all the shots were | Beers es
I used. to fire-the fatal shots. ite | ais tine
eet X-ray negatives which |

tlearly showed bird-abot and |
or rifle butleta, gee bodden.and }
explained*that all the shots were)
not fired from the same: direction |;
{in relation to the bodiess.°: -— . }:
=Aultman himself, who. was Ina)
‘virtual atate of collapse when hey
entered the Albany Undertaking!
Company's thapel’ for the inquest,
che-Inat to testify.
“sHis statement, made voluntarily,
Telated how he and hie wife had
some to Albany Saturday after-|,
noon, how he had left his wife and
children; who intended going to 8|
‘movie; how he was taken home by}
hia neighbor,» W. J. Revels, and)
Athow he woke up during the night}
to find wife and children, missing.!
> He- said. that he -was awake |
when Officer Shiver brought his
children home and that. he spent:
the reat of the night in search for!
Mrs. Aultman. Rupee: S79
Others testifying .were Lonme)
Hewett, ong. of two boys who first |
diggovered ‘the bodies mbout two}
miles ‘west of Albany near an an-}
: quented toad; Chief Deputy}
Sheriff Cull Campbell, Deputy John |
Wamble, and W. L, Barfield, of ;|
Members: of the ecoroner’a- jury ||
were S. J. Cook, William Tieknor./
H..D, Roberts, Griges Miller, A, T.
"a Spies and D. L.: Beatie, foreman.
Coroner C. W. Thomas presid-

' The funeral of Mra. Aultmat
fl be held at 3:30 o'clock this
afterncon” at. Salem .Chureh in
Worth County, condueied by the
Rey. T. H. Wilder;

The following will be pall bear
era: Measrs. Dorris Wilder, Robert
Hill, Sam Pate, Elsie Champion,
hJames Rouse and W. L. Barfield. |
(Y Besides her husband, — Mrs.’
Aultman is survived by two chil-)
dren, Ernestine and Betty; her,
ts, Mround Mrs, J. W = |

, of Blountstown, ;

James Dorseyfof. Oregon, |
and: Miss Mildred Dorsey, |
of Blountstown,

The fungxal
held this morn

church cemetery.
his wife and son, Norte
bany Undertaking Com

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' shadowy place,

| yards

“Around nine o'clock.”

“And you heard or saw nothing
suspicious on the road between here
and town?”

“No—that is—unless—”

“Unless what?”

“Well, you see, there are always cars
parked out in this neighborhood.
Couples, you know. We don’t think
anything of it.”

The sheriff appeared to be turning

something over in his mind. Finally
he asked, “What were you doing in the
swamp Saturday night?”

The farmer’s face worked strangely
and his adam’s apple rose and fell
excitedly. Finally, he found words.
“I wasn’t down in the swamps Satur-
day night.”

“Are you sure?”

The man’s face was chalky, even
under his high color. “Of course ’m
sure.”

Again the sheriff appeared to be
thinking it over. “All right,” he re-
plied. “I’m taking your word for it
now. But you’d better think up a
better alibi than you’ve got or we'll
have to hold you for questioning in

Tee was another long silence.

‘that double murder.”

Tarver led the officers out of the
into the sunlight
beaming down upon the white sand
of the old Jim Davis road. A few
down the shining expanse
Tarver halted the party again. He
looked at his notes, then at the house
in front of them. “According to
Grune, this is where a man by the
name of Shep Bruno lives.”

“Shep Bruno?” Deputy Campbell
echoed. “Seems like I ought to know
that fellow.”

As the party neared the house,
Campbell’s face lighted up. He
nudged the sheriff. “Say, Chief, isn’t
Shep Bruno the fellow who was star
witness in the Hudson case back in
1921?”

Tarver nodded. ‘He was also a sus-
pect.* Not only that, but we’ve had
him down at the county jail on an
attack charge, about eight years ago.
Nothing came of it, though.”

By this time the officers had reached
the porch of the dilapidated dwelling.
Bruno, a bespectacled, kindly faced
old man, came to the door. “What can
I do for you gentlemen?” he asked,
bowing in the courtly fashion of the
old South.

“We want to ask you a few ques-
tions, Bruno,” Tarver replied. He
signaled to Campbell to take the other
men on a search of the house while
he kept Shep Bruno occupied.

Bruno answered Tarver’s questions

politely. Although he had no sup-
ported alibi, he told a seemingly
straightforward story.
_ By the time he was finished, Camp-
bell and the others returned to the
room. Campbell held up a shotgun
and waved it in the air. back of Bruno.
In his other hand, he held up a brace
of shells for Tarver to see.

“Have you got a gun, Shep?” Tarver
asked. d a

“Why, er—no, but I borrowed one.”

Campbell came around in front of
the man. “Is this the gun you bor-
rowed, Bruno?” :

The farmer nodded his head. “Yes,
sir, that’s it.”

“Did you borrow it from Cleve-
land Grune?” ;

“Ves.”’

Tarver’ studied the man’s face for

you are lying to me.

Tarver paused a moment.
with us, Bruno,” he said finally.
“Stealing a gun is a serious offense.”

When the sheriff reached his office
in Albany, he examined the gun and
shells Campbell had found. The
shells, he noted, were identical to the
discharged shells found at the murder
scene. There was no doubt in his
mind but that the gun was the murder
weapon.
about having stolen it?

He questioned Bruno again and.

again, but the farmer clung to his
original story that he had borrowed
the gun. He insisted that he had not
been near the murder scene on the
night of September 17.

He conferred with William Rorer,

Deputy Campbell and other officers
and worked out an excellent strategy
for continuing the questioning.
_ When the man was again brought
to the sheriff’s office Tarver began,
“Bruno, we’re going to give you the
opportunity of making a clean breast
of that killing near the old Jim Davis
road. You did kill them and take
their money, didn’t you?”

“No, sir, I didn’t,” the man replied
firmly.

Tarver played his first ace. “Then
how come your footprints leading
away from the scene of the crime?”

“My footprints?” Bruno echoed.

“Yes, your footprints. We made a
moulage of prints we found at the
scene. Your shoes compare exactly
with those prints, Bruno. Now what
have you got to say for yourself?”

“I didn’t do it, Sheriff. Honest, I
didn’t.”

“Then why was the murder gun in
your house, Bruno?”

The man looked Startled.

“We know that Cleveland Grune’s
gun did the killing,” Tarver informed
him.

“But I didn’t borrow that gun until
after the killing, Sheriff,” Bruno ob-
jected.

The sheriff was ready for that state-
ment. “Yes, you did. You stole that
gun a few nights before the killing.
I’ve got proof of that. And further-
more, we've taken your fingerprints off
the stuff you took out of Mrs. Ault-
man’s purse that night.”

Shep Bruno looked stunned. He
pee Silent for a moment. He bit his
ips.

Suddenly, Rorer broke in, “That
electric chair is going to feel pretty
hot, Bruno. Why don’t you confess
and throw yourself on the mercy of
the court—” g

Bruno glanced around him wildly.
Finally, he burst out, “All right, Tl
tell you about it. But I didn’t do it

by myself. Abner Biggs was with
me.”

“Abner Biggs?”

“Yes. He helped me. We wanted

the money to’ buy liquor. 2 Then we
ran across that couple near the
slough.”

Tarver barked out an order for
Biggs’ immediate arrest. He. took
Bruno to the scene of the crime. The
scholarly looking farmer re-enacted
the shooting while Rorer, Campbell
and several other officers looked on.
The re-enactment was in such detail

and coincided so thoroughly with the #

You stole that &
gun from Cleveland Grune’s home.” ..
“No, sir, I borrowed it like I said.” |
The man appeared so meek and so .
hurt as he made the statement that ~
“Youn
have to come down to the county jail

Why else would Bruno lie -

ean Moe oj on

Bruno’s con

When Big
county jail,
ing anyth
“Bruno’s ]y
wasn’t witt
knows it. MW
swamp on n
did find my
know nothi

Bruno w
Finally, he ;
mitted the ;
had had no
said he obt;
the pair. ]
had thrown

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KIN

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him to prisc
delinquency
We figure
longs in jai
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iS unique in
closest coope
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This coo
largely thro
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in October,
growth of j
.dered organ:
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created on tl
prevention i
and its pur
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Only one
bureau—I w
That was
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problems aj
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' heads, prob:

In January,
officially rec
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Officers as:
themselves |
they settle 2
is our beliel
bureau is det
ber of arrest
the number «
adjustments
new respon:
minor offenc

After nine
and analysis
delinquent <
that there a1
delinquency:
control or si
divorce in t
religious tra

Knowing t

that by ren

have the cur
If we find t)
ents that p:
that entails a
bility, we h
_ In the cas:
homes, we 1
control over
need greate
especially w
left in: brok
«should be es


» You stole that

1 Grune’s home.” .»:

ed it like I said.”
1 so meek and so
1e statement that
moment. “You'll
to the county jail
he 1 finally.
1 se offense.”
reacnea his office
ined the gun and
ad found. The
‘e identical to the
ind at the murder
no doubt in his
n was the murder
would Bruno lie -
it?

runo again and
ner clung to his
he had borrowed
d that he had not
der scene on the
ve

h William Rorer,
ind other officers
excellent strategy
uestioning.

as again brought
ce Tarver began,
; to give you the
ng a clean breast
the old Jim Davis
l them and take

you?”
' the man replied
first ace. “Then

ootprints leading
» of the crime?”
3runo echoed.
ints. We made a
we found at the
compare exactly

run>~ “ow what
- fo irself?”
her Honest, I

1e murder gun in
J

tartled.
leveland Grune’s
Tarver informed

»w that gun until
eriff,’ Bruno ob-

idy for that state-
i. You stole that
efore the killing.
at. And further-
ur fingerprints off
ut of Mrs. Ault-

sht.””
ed stunned. He
ment. He bit his

broke in, “That
ng to feel pretty
ion’t you confess
onsthe mercy of

und him wildly.
it, “All right, Vl
gut I didn’t do it
Biggs was with

me. We wanted
iquor. , Then we
ouple near the

iam rder for
irre He took
yf th. _.ime. The
irmer re-enacted
Rorer, Campbell .
fficers looked on.”
as in such detail *
roughly with the

Sas eM Bhan, vr

Bruno’s confession was true.
When Biggs was brought in to the
county jail, he refused to admit know-
ing anything about the crime.
“Bruno’s lying,” he reiterated. “I
wasn’t with him that night and he
knows it. Maybe I did cut through the
Swamp on my way home. Maybe you
did find my footprints there. But I
know nothing about the crime.”
Bruno was questioned for days.
Finally, he admitted that he had com-
mitted the murders alone, that Biggs
had had nothing to do with it. He
said he obtained $14.50 in cash from
the pair. He pointed out where he
had thrown Mrs. Aultman’s purse, but

440 vuu AYU UCOPAlC a OCA),

The bodies were exhumed and dis-
sected in order to find the shot and
bullets Dr. Keaton thought to be there.
But the autopsy disclosed that the
pair had been shot only with a shot-
gun and not with two different guns
as earlier believed.

During the latter part of March,
1939, Bruno was tried for the double
slaying and convicted. His sentence
was fixed at life imprisonment. Biggs
was Cleared of all blame.

Epiror’s Note: The names Abner
Biggs and Mr. and Mrs. Cleveland
Grune are fictitious’ to protect the
identity of innocent persons.

KINDER THAN JAILS

CONTINUED FROM PAGE 6 |

him to prison for contributing to the
delinquency of his own child.

We figure that kind of a parent be-
longs in jail! _

We believe that the Toledo system
of dealing with juvenile delinquency
is unique in that it has developed the
closest cooperation between the police,
judiciary, church and school admin-
istrations.

This cooperation was achieved
largely through the persistent efforts
of Chief of Police Ray E. Allen who,
in October, 1937, realizing the rapid
growth of juvenile delinquency, or-
.dered organization of the Crime Pre-
vention Bureau. The bureau was
created on the theory that an ounce of
prevention is worth a pound of cure
and its purpose was to contact the
problem child before actual delin-
quency set in.

Only one man was assigned to the
bureau—I was that man.

That was nine years ago. Today I
have nine police officers working ex-
clusively on the city’s youth and the
problems and indiscretions of the
juveniles. We are in daily contact
with court officials, school and church
heads, probation officers and others.
In January, 1944, Toledo city council
officially recognized the crime preven-
tion bureau with proper legislation.

Officers assigned to the bureau pride
themselves on the number of cases
they settle without going to court; it
is our belief that the success of the
bureau is determined not by the num-
ber of arrests we make but rather by
the number of cases we settle through
adjustments and the development of
new responsibility on the part of
minor offenders.

After nine years of constant study
and analysis of thousands of juveniie
delinquent cases, I have concluded
that there are three major causes for
delinquency: (1) Lack of parental
control or supervision;’ (2) Death or
divorce in the family; (3) Lack of
religious training.

Knowing the causes, it would seem
that by removing them we should
have the cure—but it isn’t that simple.
If we find the way to convince par-
ents that parenthood is a privilege
that entails a 24-hour-a-day responsi-
bility, we have accomplished a lot.
_In the case of cause No. 2, broken
homes, we realize that we have no
control over death—but certainly we
need greater control over divorce,
especially when children are to be
left in: broken homes. More clinics
«should be established, I believe, where

differences between parents can be
adjusted and reconciliations effected—
if the problems are not too difficult.

With reference to cause No. 3, re-
ligious training I’d like to suggest that
it no longer is sufficient that we build
beautiful churches and then sit back
and wait for the people to crowd the
pews to overflowing. Church leaders
must go out into the neighborhoods,
convert the adults first, and then go
after the children. Chances are the
children will follow dad and mother
IF’ dad and mother find the church.

It all gets back to the parent! Your
child is your responsibility. What he
or she does is your problem. If you
don’t know where your son is tonight,
if you don’t insist that he get home
at a reasonable hour, if you don’t
know a great deal about his friends of
both sexes, then you aren’t much of a
parent and most certainly you are
looking for trouble

Perhaps you will say: “Oh, I trust
my son. I don’t stick my nose into his
affairs. He’s quite capable of taking
care of himself.”

That's all very fine, but it isn’t being
quite fair. He’s still a boy, and the
world is a fine, gay place, with some
pretty attractive temptations at every
corner. Mature men and women fre-
quently give way to these temp-
tations with tragic results—and youth
is no better prepared to resist.

It’s fine to trust your son, but you
can still keep an eye on him. If you
don’t watch him, he’s apt to get the
idea that you don’t care much what
he does—and he won’t feel good about
that. It’s fine to have confidence in
your boy—but he ought to be in bed
at a reasonable hour and get a good
night’s sleep. He may grumble a little
at your discipline, but chances are,
down in his heart, he’ll think you’re
a pretty fine parent because you have
shown him you care.

But if, finally, you find that he’s

inclined to take the bit in his teeth

and run wild—try the old-fashioned
woodshed treatment. It may hurt you
more than it does him but it’s a lot
better than jail.

Woodsheds can be egey kind to
youngster, who get foolish ideas about
ife!

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elect#fooutel Georgia (Doushérty): 11-17-1939.

: is as
Fisin Cright),: Giseys their Hide
er), German Foreign Ministai

Sats ete

inquest

#

Is : Planned

to Deaths
Nec

Mire. by ig ie 3 ory : Tides aC.

> THe ho had. been dead: aev-}

-jerabbears, the-deaths having..poa-

» tibly¥ occurred ‘early ®- Saturday

tony! by. Coroner | night, investigating officera stated.

deaths of Sheri Tarver saig- the boilies

nant Wal-! ‘discovered = by 4wo. youths,

hice pullecente| Lon ie Hewett, af “Albany, and

ifennd yesterday, Junfor- Hewetty of “Antsterdam,

er oUt OOF abegt 3 yorterday.

ante) oy ey my aoe
ald dian daeix, Rowl,’’ about
bite anal id chalfdue west of the | beetiRhot once, in the hack of
Saute Venits. | Ad hend;-and that the man’s body wna
Ofhcern! eidectedsifat =. states tort. by five xhots, one large wound
ent vat-thad time waulit be “forthe /DAY ing» ‘possibly been made by: s|
Ditig fram: Eraeit-Aultvian, the, CP*'ke from a shotgun: aby signe
de ad wornah hicbend, who wan) TANKS) f

® warrant *ebar ging | Both bodies. were found on the

} ‘grounds lose, 10. the sautomobile,

0, -s Warver said “ast! young! ‘Lannie’ Hewett; ione@iof the
ulfmany arrested Sun-) discoverers aatated this: morning,
“in! rts thy |The had, fallen pc beled an
swxiphell, Depei der thé-runni t

had no
diew t

stan

co

iy of the Polish. Silesia) Poin. of

rga:
y committee” to demand ahnexation ich
pe pes in Von Finden
ssechoslovakia by Poland. ‘ 5 ath
/"Sadeten: Germon deadene ‘er. eR
ganized four columns of “Free
corres troops on the German aide|b y held Tuesday ering at 1
the Czechoslovak \border, each/o'glock, Eastern standard time,
with 10,000 men and each, they| lsabella Church, Worth Counts
said, “fully. equipped with every conducted by the Rey. T, H. Wil
kind of modern war material.” a7,, Interment will follow in th
wait peagttive J j German eeeke Isabelia Cemetery. 0;
ps were rcady to * all :
the first to cecupy Sudetenland as D hina! Laie ab as Hot la
rech troope and gendermes with-| Robert Hill, Early Blythe,E. Shi
Bas Rt : ver, James Rouse, Julian Moree
honorary, Messrs, Rufus Hatenian
Henry Bateman, Sam James, Sai
pe eae Isaac Shiver and Jimmi
A@
ari Mr. Moree ste. survived by hi

‘continued to’ seek haven in Ger-
many. Latest reports estimated
“their number et-87,000.
Ah Senrational newspaper

¢ controll azi press of in-| wife, who’ before her marria
-cidents within hoslovakia gen-! was Miss Hilda Auliman, of "Wort!
erally stirred Eng: wry in Ger- | County; a 26n,/Norton; his faker

Souaent Siredtekhs Mr~ Alfred Moreher of os

Spain, | Conntagetier others, Mr, M. B
nid a “aie grap ee effort ‘to sate, of ee cotnty, Mr. R
‘the ‘Ebro. front in icy Moree, of Loa Angeles, Cal.
had been repulsed, and two sisters, Mra, Floyd Knigh
® government 3 Mra . Emmett Knight, of Rec

1° Kiba? Undertaking Com

pe, ;
0.9 g : Continued
: From Page T
Chamberlain would not ‘tong dela
hig:return trip to Germany to tel
Hitler what tbe democracies hac
decided ‘to do.
Here is an unofficial outline: °
s ne sem of nerves dees
cYisis w mformed persons gen
car carried’ theca, kbcmana ef Avt- erally accept as auth¢ntic: |
man and a ‘paper sack’ were found; 2. The Sudeten/ districts of
at the scene, Sheriff Tarver said,| Ceechoslovakia which in’ district
and: all will -b elections last May and June voted
ie. cent or more for the Sude
German party of Konrad Hen-
lein will be considered to have de-
Sided omunion with Germany.
: new frontier shall be drawn
Mrs ‘Aaltman is survived by bar th ing incidde: all: such districta within
‘an. East Dougherty | Hitler's Re has fares. it a prac:
iy aie pesto ste trees ar care ee hich voted b een
_ aD ‘o amall daughters. is which vo etw
3 ie is é these 50 per cent for the Hen-
lelnist candidates shall be grouped
in tgahias tot ston saree Czech-
Arrangements shall-be.made
By the exchange of) populations.to
: ce? ard the liberty of®German
dfities which do,not-wish to
“Ger Paley.there
ementa for
sandy Hon
ey oe

one

y.anid: that on discuve
j ait aie compari:
t hey

t, neu
1, which has the

pe with Hitler fost be ar
«4 te . Y edn oad o rh

nee


Sheriff's Office Discloses nha Shep Bruno Was Ant

Rested the Day Following the Slaying of Mrs. Ernest |
» Aultman’ and Walton Moree, Nearly Four Weeks |
: Ago—Prisoner Is Heldépriimdieclosed: Location,

he

Cole Deputy: Sheritt Cull a

4} bell, of Dougherty Coun yealec

Sheriff 7 arver: Hast phiht. that Shep Brim, Albany
~: Ohad been arrested and Wes

al Says Negro He Id ivedp held at an’ ‘andisclosed toca
j

‘ Uiiuadh ednnection with, ihe “touble
a Columbus, Jail jahay eg of Mrs. Ernest Aultinan and

| Walon Moree, which occutted near
» COL BOS. p ther! nearly fone weeks ago. © Dep
UM Ga. ete 13 AP) putty Camphell denied he had stated
t Negro; identified by ‘Sheritt OF T thé Negro was talker ia-Columbus
‘atver of Dmigherty: County 98 as has’ been Teparte a 4
ep Bruno; was contined for a Brake, 46, alinw She Lirtis,” was
ty in Mascedan County jall today} arresfed Beptember 18, the: day ful
while Dougherty wuthorities inves: i heariry ithe: Smding “of the ¥ictinis’
a tigated a double slaying near Al: ; bulle@piddidd bytiies ve the wodds
hany last’ September: 18-955 titty Gaede satfthenuld™ Fim Davis
Sheritt "Tarver stn. Avanta’ leat! road About a Mile und achait duc
Winight disclosed the Negro-had been! west the | Albany ‘city “tinvits
atrested or @ burglary charge five) Depu ity4 Campbell, who condeicte:!
jays after the bullet-riddied bodies ine nivgstigation leading tg Bruno's
vig Nea and a woman were found, iwaid: the Negru was jailed
‘Yonely country ‘road. Evt- 5c 9 wap
rpg assembled: during  .investi- abe:
siamation’ of. the viralayy,. directed: ct aity Jod-on suspinin
‘ : the, rest 8, removal

: 283. thoriti ent
- Worth County: farmer,’ and Mrs }
w Ernest ‘Altman,’ wife. of
Dougherty | County” farmer, ~> t
discovered near # parked autemp-' Negro ‘ Pali ‘gai i but
bile. Mrs.) Auitman had been shot we mg x vat Eee sure
th the back of the*head with there Would be. m ogc

a pistol, while’ Moree's body was

pierced with a ping ¢tharge a ; :

our pistol piss Wi “bys: Deputy
2 Camp 4 He had: been’ tried and |
the & Please Torn te Neo. '3 on Page 5) jeanvict of attacking: ‘a white Wom-

pest Jifteen' years
’ ‘Cafophell. said the Negro
Ee a? Witness\in trials: following

| the slaving of two. Hudson children,

Lpon.the: Af :
j Dur i

“in, jailherd;- Teroen had

0 effort: ‘to tind ‘out: what he
dae: MDeputy Camp-

The’ warrant tor

i; Deputy:
‘\gator in
making the’ arrest by Officers Jef}
| Buirgariyg Bunk! Gibson and John |
Wamble, = t
ease will not be pres,
ee ¢ grand jury until the
[earch term of Dougherty Superior j
| Court, officers. indicated, unless
the court id called into special ses
jrion, be before: that Hep by Judge:
s Gurdoiees e Alban Ju
ge Cireuit, #7 4
Officers * ceeetd Teveal an
2 Lsfevidened they t' hiive Sigihgon | '
2 ithe: Negro, } puty’'Campbell
vhad'a euperan |

man and Walton: More¢, /33, were

found Sund: Septeraber 18, rear,

‘si aatomobile,) in “the

; woods fifty yards Off the old Jira

; Davis Road Uta ntile and a,

‘thalf due west of the Albany city
limits, > i ;

Diserivered by t two "youths, Lon-

nie Hewett, Se ATbaay phd Sanior}

= oe ay Cherch,-tedey § Hewett, ° “of! Amsterdam, about |

eres being done :
ema y. Care | (rhdaon Sars! G'ial'p ca Pazs 85|

Haagen ap pA:

 Bherift Tarver asserted. at -
time: of the slaying he belleved|}) ae at gles yange..7 Both
tebbery had been the motive. =):|°> ere found’ on the gro
id he planned to’ con! losd:to the automobile, according |
Sd feed Rellcliog, Gaiek Cari ve discoverers, and the man;
if Crowe and, Judge B.:C.. Gardner} jhad a partially under the run-|
‘Alba’ sible | U7 pavtes Footprints leading |
eek: ae pinche ithe: acene of the érime to 8)
sh p recall of the current Dougherty Dear-by woods! were studied by the!
At Gactuaven held the’ day A }-
At an {nguest he eo day fo
me aheritl said only “two of lowing the discovery of the bodies
members of his, staff werels coroner's jury returned « verdict |
= alt bet aisha ey” ae that ta victima were shot to death |

ediately to another ine} “te ith
leaked out we. suspected: hint in}
It was under ese

nf’ tional ba eb b |
‘ j exen a ne aseball asso-
LS 30. : lock : ihe morning, the} elation. Cuba, Mexico, Puerto Ri.

t ° goes Sel ficers. said} co, Hawall, Canada and Peru also
E the time. © The theory was er ee rr
need that tha death had’ oe Japan, the . Australis


irmy.

The, aranincenie t) BHR;
Wecruiting ‘opened to, doubieiith e
metrength of the wothen's aieiiary |

rritortal service.”
Fc Men belween the ages of 35 and
50 serve in-the ‘home battalions,
hiwho o duties involve guarding vuk.
nerable spots. in. Britain so.cthat
regular troops may be released tor
imore active service,

‘Women: of th aastiaee which
will be’ increased (from.:20,000: to

,000,.. serve» ias iclerks, | cooks,
“chauffeurs: and, in’ other capacities
pebind bod lines.

e preme Penalty for Crime
- In Tattnall Prison’ s Elec-
; tric Chair,

i REIDSVILLE: Ga} Nov. 17 M— |
‘ehep | Briino, Negro. convicted of
Hkilling Mrs,’ Ernest’ Aultman on a
country road’ near Albany, died in
the-electric chair at Tattnall State
ogee today."
first: shock was apppied at

11: Re a: tm: (EST) and he was_pro-
nounced. dead six cninutes Tater. |
Warden Mark'Sims said he made
ho\comment on) the crime; singing

a hyum ‘as he‘ walked to the chair.
Mrs. Auitman® and> ¢imian: com-
‘were found ‘shot to death

t September 18, pn 2 road about

two. miles'‘out of ‘Albany, * Bruno
wwice confessed and twice denied
the shooting, contending at his trial
hats ea re killed ie eee

«

|
'
|


ie DST ARM OST AS

Seah SSeS ORE AeA

Np ote SAAT ALBEE NG

eet

Se RRs

Py:

574 Ga.

J. C. Savage, Atlanta, J. C. Murphy, At-
fanta, J. M. B. Bloodworth, Atlanta, John
E. Feagin, Atlanta, Eugene Cook, Atty.
Gen., W. V. Rice, Asst. Atty. Gen., Cam D.
Dorsey, Jr., Asst. Atty. Gen., F. V. Wil-
liams, Asst. Atty. Gen., W. H. Reynolds,
Jonesboro, for plaintiffs in error.

Coogler & Kemp, Jonesboro, Carl Ty
Hudgins, Decatur, for defendants in error.

HEAD, Justice

The petition and evidence in this case
show that the proposal to close a part of
State Highway No. 85 (Atlanta Avenue)
was at the instance of the City of Atlanta,
pursuant to its plan to extend its municipal
airport. The “Uniform Airports Law”,
Code, Chapter 11-2, is a general law and
confers broad and comprehensive powers
upon “municipalities, counties, and other
political subdivisions,” to acquire (either
separately or jointly) lands for the con-
struction and expansion of airports. Rules
of law and decisions of this court applica-
ble to the closing of State highways which
were a part of the public-road system of a
county prior to incorporation into the State
Highway System are not, therefore, ap-
plicable to the facts of the present case.

In Howard v. City of Atlanta, 190 Ga.
730, 10 S.E.2d 190, this court fully stated
the rules of law applicable in those in-
stances where the construction or extension
of a municipal airport is involved. Under
the rules stated in the Howard case, the
City of Atlanta and the other defendants
were fully authorized to contract for the
closing and relocation of a portion of a
State highway in order that the municipal
airport might be expanded. While the deci-
sion in the Howard case was not concurred
in by a full bench (two Justices dissenting),
it follows the apparent intent and purpose
of the General Assembly in the enactment
of the “Uniform Airports Law”, and will
therefore be followed in the present case.

No arbitrary abuse of the powers con-
ferred by the “Uniform Airports Law” is
shown by either the allegations of the peti-
tion, or the evidence, and the trial court
erred in overruling the general demurrers

55 SOUTH EASTERN REPORTER, 2d SERIES

of the city and in thereafter granting an in-
terlocutory injunction.

Judgment reversed.
All the Justices concur,

206 Ga. 73
BRYAN v. STATE.

No. 16837.

Supreme Court of Georgia.
Oct. 11, 1949.

Robert Frank Bryan was convicted in Su-
perior Court, Chatham County, David S. At-
kinson, J., of murder, without a recommen-
dation, and he brought error.

The Supreme Court, Atkinson, P. J., af-
firmed judgment, holding that evidence sus-
tained conviction; that admission of a pho-
tograph showing body of deceased and re
fusal to grant a mistrial for argument of
Solicitor General was not error,

Head, J., dissented.

1. Homicide €=250
Evidence sustained conviction for mur-
der by shooting decedent with a pistol.

2. Criminal law €=444

In murder prosecution, photographs
are admissible in evidence when properly
identified by preliminary proof as showing
an accurate representation of an object
which is material to the issue.

3. Homicide €>171(2)

In prosecution for murder by shooting
decedent with a pistol, location of dece-
dent’s wounds was material.

4. Criminal law €=>338(7)

In murder prosecution, a relevant and
material fact sought to be introduced in
evidence is not subject to an objection that
it would inflame the minds of the jurors.

5. Criminal law €=338(7), 675

In prosecution for murder by shooting
decedent with a pistol, a photograph of de-
cedent with clothes pulled back so as to

BRYAN v.

Cite as 558.

show location of the wounds was admissible
in evidence over objection that there had
already been testimony as to the location
of the wounds and that the picture would
inflame the minds of the jurors.

6. Criminal law =1064(4)

Where evidence that defendant assert-
ed was improperly admitted in murder
prosecution, was not set forth in motion for
new trial, and motion referred to the evi-
dence as being contained in the bricf of
evidence, no question was properly present-
ed to Supreme Court.

7. Criminal law €=723(1)

In murder prosecution, refusal to grant
a mistrial, if motion for mistrial was timely
and properly made, for argument of Solici-
tor General that sentence of life imprison-
ment would entitle defendant to release on
parole in seven years, that jury should re-
member grucsome picture of deceased, and
that jury should look at the picture if they
went further than guilty in writing verdict,
Was not error.

Syllabus by the Court.

1. The evidence was sufficient to au-
thorize the verdict.

2. A photograph of the deceased,
showing the location of the wounds, was
not inadmissible for any reason assigned.

3. An assignment of error must be
complete and understandable within itself.

4. It was not error to refuse to declare
a mistrial based on the argument of the
solicitor general.

——_.>—_—_-

Robert Frank Bryan was convicted of
murder without a recommendation. The
deceased was Nicholas A. Pahno, who was
shot and killed in his store in Savannah
about midnight. There was testimony of
a witness that, just prior to the shooting,
he saw the accused and the deceased in the
store, that the accused had a pistol in one
hand and the other hand on the cash reg-
ister, and that the witness became fright-
ened and ran away. A confession was in-
troduced, in which the accused admitted
the killing and robbery of the deceased.
There was expert testimony that the pistol

STATE Gas... 5D
2d 574

found in the possession of the accused was

the pistol that fired the bullets that killed

the deceased. “The accused in his statement
denied the killing, stating that he was else-
where at that time, and that the confession
was not voluntary, but induced by threats
and coercion. In accounting for the pos-
session of the pistol and -certain money
which had been traced to him, he said that
the night the deceased was killed another
person told the accused that this person
had killed the deceased, and, by threats,
had required him to take the pistol and
money.

William A. Wells, Jr., Jack E. Miller,
Savannah, for plaintiff in error.

Andrew J. Ryan, Jr.; Sol. Gen., Sylvan
A. Garfunkel, Herman W. Coolidge, Asst.
Sols. Gen., Savannah, Eugene Cook, Atty.
Gen., Frank H. Edwards, Atlanta, for de-
fendant in error.

ATKINSON, Presiding Justice (after
stating the foregoing facts).

[1] 1. The facts were questions for the
jury to pass upon, and the evidence was suf-
ficient to authorize the verdict.

2. Passing to the second ground of the
amended motion, the first being an am-
plification of the general grounds, error is
alleged in the admission in evidence of a
photograph of the deceased with clothes
pulled back so as to show the location of
the wounds; the objection being that,
death and location of the wounds already
having been proven, the picture was intro-
duced for the purpose of inflaming the
minds of the jury, and was endowed with
no other probative value.

[2-5] Photographs when properly iden-
tified by preliminary proof, as showing an
accurate representation of an object which
is material to the issue, are admissible.
Johnson v. State, 158 Ga. 192(2), 123 S.E.
120. The location of the wounds was ma-
terial to the issue. Franklin v. State, 69
Ga. 36(1), 47 Am.Rep. 748; Butler v. State,
142 Ga. 286(9), 82 S.E. 654; Shafer v.
State, 193 Ga. 748(7), 20 S.E.2d 34; Rus-
sell v. State, 196 Ga. 275(1), 26 S.E.2d 528;
Weaver v. State, 199 Ga. 267(3), 34 S.E.
2d 163. To exclude the photographs on

OS6T"9e"S RURBIXAAHE (weuseyQ) dS *ey *oaete *6T SyoeTq SHUeay Queqoy *‘NVAUE

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SWANTON ~

576 Ga. 55 SOUTH EASTERN

the ground that there had already been tes-
timony as to the location of the wounds,
would, in effect, preclude the State from
establishing a material fact by more than
one source of evidence. To exclude it on
the ground that it would inflame the minds
of the jury, would prevent the State from
establishing facts material to the issue. A
relevant and material fact is not subject
to an objection that it would inflame the
minds of the jurors.

[6] 3. The third special ground al-
leges error by the admission in evidence of
a confession. The evidence objected to is
not set forth in the amended motion, but
referred to as being contained in the brief
of evidence. Under repeated rulings it has
been held that a ground of a motion for
new trial complaining of the admission of
testimony must be complete within itself
and not such as to require the reviewing
court to refer to the bricf of evidence in
order to determine admissibility. Accord-
ingly, no question is properly presented.

4. Error is assigned on the refusal of
the court to grant a mistrial on account of
the argument of the solicitor general, as
follows: “Gentlemen, with our system in
Georgia, life imprisonment docs not mean
that this boy, if sentenced to life imprison-
ment, will stay there for life. If it did,
that would be enough punisliment, because
I believe that, if he spent his whole life in
prison, that would be worse than taking his
life. With our system in Georgia, a man
is entitled to parole or pardon after seven
years, and when his application is put in,
all the judges or interested parties are usu-
ally out of office and no one recalls the
facts in the crime. If this jury sentenced
this defendant to life imprisonment and he
should be given his release on parole in
seven years, you would be turning him loose
upon society after a few years imprison-
ment.” The solicitor general also said:

“That if they felt any sorrow for the de-
fendant in this case, he wanted them to re-
member the grucsome picture of the de-
ceased lying on the floor of his shop (the
picture of the body after it had been moved
and turned over), and that, if ‘you go fur-
ther than guilty in writing (the verdict), I
want you to pick up this picture and stop

REPORTER, 2d SERIES

writing there. Look at that picture. This
might happen to me [you] or any man in
this community.’” The solicitor general
further said: “You did not do it (the mur-
der), I did not do it, he (pointing to the de-
fendant) did it. This poor old defenseless
man who was harming no one.”

[7] Assuming, though not deciding, that
a motion for mistrial was timely and prop-
erly made by objecting to three separate
portions of the argument after the argu-
ment was concluded, still it would not be
error to refuse to declare a mistrial, under
the rulings in McLendon vy. State, 205 Ga.
55(5), 52 S.E.2d 294, and cases therein cit-
ed. See also Hicks v. State, 196 Ga. 671(2),
27 S.E.2d 307.

Judgment affirmed.

All the Justices concur, except HEAD,
J., who dissents.

WYATT and ALMAND, JjJ., concur
specially.

WYATT and ALMAND, Justices.

We concur in division 4 of the opinion
for the reason only that this Court is bound
by former full-bench decisions,

d w :
° ; KEY NUMBER 3YSTEM
Tt

206 Ga. 20
RICKS v. STATE.

No. 16802.

Supreme Court of Georgia.
Oct. 10, 1949.

Carroll Murray Ricks was convicted in the
Superior Court of Chatham County, David 8.
Atkinson, J., for a homicide with malice,
and he brought error,

The Supreme Court, Duckworth, C. J., af-
firmed the judgment and discussed alleged
errors with respect to admission of evidence
and the charge upon circumstantial evidence.
The court held that there was no error in
either respect and that the evidence sup-
ported the conviction,

RICKS v.

STATE Ga 577

Cite as 55 S.E.2d 576

{. Criminal law €=695(6)

Where evidence was objected to in its
entirety although portion was not subject
to objection, it was not error to admit entire
evidence over objection.

2. Criminal law €=921

Where evidence of the prosecution was
objected to, but during trial substance of
same evidence had been admitted voluntar-
ily through defendant’s statement to the
jury, ruling admitting evidence was not
cause for new trial.

3. Criminal law €=683(1)

Where defendant stated that purpose
of unsworn statement to jury was to re-
count entire record during service in the
Army ayd related record from time of
inductior® to discharge, duly authenticated
record of service as kept by the Army was
admissible on behalf of prosecution to
rebut defendant’s statement.

4. Criminal law €=552(3)

To convict on circumstantial evidence
alone, evidence must convince beyond a
reasonable doubt and must exclude every
other reasonable hypothesis save that of
guilt.

5. Criminal law €=801

Where jury returned with verdict of
guilty, and judge stated he would not ap-
prove verdict because he had neglected to
charge on circumstantial evidence and then
gave correct charge in that respect and
sent jury back to reconsider, defendant
could not complain on review of court’s
initial failure to charge on circumstantial
evidence.

6. Homicide €=238

Evidence supported conviction for
homicide with malice as against defense of
intoxication. Code, $$ 26-403, 26-1004.

——_>————-

Edwin R. McGowan, Savannah, Edward
J. Goodwin, Savannah, Lionel E. Drew, Jr.,
Savannah, for plaintiff in error.

Andrew J. Ryan, Jr., Sol.Gen., Savannah,
Fugene Cook, Atty. Gen., J. R. Parham,
Asst. Atty. Gen., for defendant in error.

55 S.E.2d—37

Syllabus Opinion by the Court

DUCKWORTH, Chief Justice.

[1-3] 1. “Where evidence is objected
to in its entirety, and any portion of the
same is not subject to the objection, it is
not error to admit the entire evidence over
such objection.” Lewis v. State, 196 Ga.
755, 759, 27 S.E.2d 659, 663. Where evi-
dence is objected to, but during the trial the
substance of the same evidence is admitted
without objection, the ruling admitting the
evidence over objection is not cause for
new trial. O’Pry v. Noland Co., 180 Ga.
565, 179 S.E. 630; Lewis v. State, supra;
Rogers v. Manning, 200 Ga. 844, 38 S.E.2d
724, The defendant here, after stating
that the purpose of his unsworn statement
to the jury was to recount his entire record
during his service in the Army, proceeded
to relate that record from the time of his
induction until his discharge. The excep-
tion in the first special ground of the
motion for new trial is to the overruling
of the defendant’s objection to the intro-
duction by the State of a duly authenti-
cated record of his service, as kept by the
Army. There are some discrepancies be-
tween his statement and this evidence, and
to that extent this portion of the evidence
was admissible for the purpose of rebutting
his statement; and the entire evidence
was admissible, since the objection was to
the evidence as a whole. Furthermore, it
was not error to admit those portions of
the record that were in accord with the de-
fendant’s statement which he voluntarily
made to the jury.

[4,5] 2. Whether or not the convic-
tion here rests entirely upon circumstantial
evidence—and it is doubtful that it docs—
the second and last special ground, com-
plaining because the court failed to charge
on circumstantial evidence, is without
merit for the reason that the charge in
the record contains fully and correctly the
rule as to circumstantial evidence. This
rule requires that, in order to convict on
circumstantial evidence alone, the evi-
dence must not only convince beyond a
reasonable doubt, but it must exclude every
other reasonable hypothesis save that of

5 SOUTHEASTERN 683,
BUNDRICK, George W., white farmer, hanged Cordele, Georgia, on June 21, 1907.

"G. We Bundrick, Crisp County farmer, was literally snatched from the gallows Wednesday
morning by Governor Terrell, who used the long-distance telephone to inform the legal
executioner of a thirty-day respite in the case, Bundrick was to have been hanged between
11 and 12 o'clock and every preparation for his execution was, completed, when, at 11:18
o'clock the governor determined to give him a new lease on life, After informing the
executioner of the stay, Governor Terrell had prepared an official respite, prolonging
Bundrick's life until November 16, that his attorneys may strengthen before the prison
commission their client's application for a commutation of sentence,

"Bundrick's application for a commutation was considered last week by the commission,

It was declined and the governor approved the recommendations of the board. He was to
have been hanged Wednesday, having been sentenced to pay the death penalty by Judge
Littlejohn, When the governor received the papers on the Bundrick case, Judge U. V.
Whipple, of counsel for the condemned man, appeared before the chief executive and urged
the reppening of the case, His request was denied, though the governor promised a re-
spite if the trial judge and prosecuting solicitor would join in the request,

"at the last minute Wednesday morning, the governor was called over the phone from Cor-
dele, and was assured that the trial judge, the prosecuting attorney, the ordinary and
the clerk of court, together with many prominent citizens, joined the bheuest for a re-
spite, On this showing the notified the sheriff to stay the execution, The Bundrick
case has been in the courts for several years. He was convicted of the murder of a
neighbor named Shrouder, with whom he had been involved in a difficulty, Bundrick ad-
mits the killing of Shrouder, but claims the circumstances justified him, The two had
agreed to settle their differences by shooting, both of them believing, it is claimed,
that such was legal, They agreed to meet the day following at a point half way between
their respective homes and 'shoot it out,! a | |

"On the following day, Bundrick, it is claimed, was proceeding to the duelling spot
alone, when he met Shrouder, coming from the opposite direction in a buggy, accompanied
by his wife. Bundrick was armed with a shotgun loaded with buck shot. He opened fire

on Shourder, and the wound inflicted caused almost instant death, Mrg,. Shrouder, who :
was in the buggy:at the time, was also wounded, ‘In the trial of the case, Bundrick
claimed’ that Shrouder first opened fire on him with a rifle and that he shot in self-
defense, This was denied by Mrs, Shynnder, who: was the chief witness for the prosecutions
It was shown, however, that Shrouder had with him at the time of the tragedy a rifle,

The jury accepted the testimony of Mrs, Shrouder in preference to the statement of bun-
drick, and the court instructed that the agreement to settle their differences by shoote
ing did not relieve Bundrick of the charge of murder, In a won, the court held, as all’
Georgia courts hold, that if two men agree to 'shoot out' a difference, and one is
killed, the other may be held for murder," JOURNAL, Atlanta, Georgia, 10-17-1906 (13/1&2

"(Special Dispatch to the Journal) Cordele, Ga., June 21 = George W, Bundrick, the murderer
of John Shrduder, has paid the penalty of thé law. Sgeruff Sheppard sprung the trap at‘*
12:10 and the condemned man fell a distance of 6% feét, swinging Limply*without a struggle
for the period of 1) minutes, Only the officials and newspaper men, guards and ministers
were admitted to the execution, Just before the black cap was placed upon Bundrick's

head he was asked if he had any statement to make, He replied that he had none, How-
ever, in his conversation with Rev. Charles Jackson, pastor of the First Methodist

church, Bundrick earlier in the day stated that he had no doubt whatever about his

future welfare and happiness, He said: 'I have suffered death many times, It is

only the sting of death that I dreads it is but a short time we should live if we

shoul live to be 100 years old. Burndrick met his fate humbly and bravely, “hen

called upon to walk from his cell to the gallows he stepped forth with a steady

tread and stood upright without any degree of agitation whatever,

"The story of how Bundrick met Shrouder upon the public highway and fired upon him

and his helpless wife, killing Shrouder instantly and wounding h&shwife is familiar

to the readers of THE JOURNAL. George Bundrick, with h&s brother Andrew, in the year
190), committed the c rime for which today the law metes out ifs tull penalty. George
Bundrick escaped after the commission of the crime, but Andrew was captured and has

ii P

‘been sent to the penitentiary for life, George was captured and brought back to Crisp
county and tried, convicted and sentenced to be hanged, He escaped from. the Americus
‘jail where he had been placed for safe keeping and again escaped the officers and went to
‘the far west. A few weeks ago Bundrick, of his own accordy surrendered and came back to
suffer death for the crime that he had committed, The case had been a hard fought
legal battle from the beginning of Bundrick"'s first trial, © ‘
"Mis attorney, W. H. McKen ie, carried his case to the supreme court, but the de-,
cision of the lower court was affirmed and the supreme court referred to Bundrick s
crime as that of assassination, Bundrick's attorney went before the prison commission,
but his prayer was dénied, The day and hour of Bundrick's execution was set and the
' governor was implored ard-prevailed upon to grant Bundrick a respitemof 30 days, which
‘he did only five minutes before Bundrick was to be execution, This indeed was a tragic
moment in Bundrick's life, He thought and so did his friends that his life would be
ended within a few minutes and he was in fact standing in the shadow of the galhows, Be-
fore his thirty days! respite had expired Bundrick escaped, Another tragic moment
(in his life was the hour in which he defied the prison bars of the Americus jail and
' walked serenely down the streets a free man.
twith one thrilling experience following another, Bundrick wended his way through
the western part of our country until the tragedy in his soul became too violent, He
unburdened his -heart’ and he humbled himself to a farmer in the western part.of Calif~-
ornia and asked that he be sent back to Georgia to meat his fate. After Bundrick was
| brought back and placed in jail in Crisp county his attorney still continued his per-
| sistént effort to get some relief for him, The case was carried before the prison
|

commission again and several of the most prominent citizens of Crisp Coun*y appeared

before the commission, and urged strenuously for a commutation of Bundrick s sentence

The p¥ison commission again declined to interfere with the sentence, which the law had
' pronounced, The governor granted Bundrick a 10-day respite and ‘he case was again
carried before the prison commission and was again declined, On yesterday the pri-
son commission made its final decision and the governor declined to interfere,"

JOURNAL, Atlanta, Georgia, June 21, 1907 (1:5.) '- |

"Los Angeles, CA:OFPRMOA. April 12, 1907-A man liS=years-of-age, travel-stained and
weary, caaiming to be George W,,Bundrick, appeared in the town of Downey, Cal., near
here, yesterday, and surrendered himself into the custody of John Edmundson,
asserting that he had killed John Shroeder in Rains, Dooley County, Georgia, in 1902.
He, said that he had been arrested in Georgia, tried, convicted and sentenced to hang
but had escaped from jail a t night at Americus by overpowering his guards," .
JOURNAL, Atlanta, Georgia, April 12, 1907 (8-3.).

"Cordele, Ga.,y July 18, 1905<J. H, Shrouder, age 55 years, was shot and killed about
9 o clock last night at thechome of Bill Bownwne, near Warwick, Worth County. The
parties who did the killing are not known at this time, The weapon used was a shot
gun and Shrouder réceived 2 charges of buck shot in-his breast and died instantly.
'Shrouder was the father of J. Je Shrouder, who was killed by the Bundrick boys about
2 years ago at Raines, at which time his wife was nearly shot to death with buck 3
shot. He was the father-in-law of P. S, Barber, a prominent citizen of Cordeles.."
JOURNAL, Atlanta, Ga., July 18, 1905 (125%6.) ; ) :


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1130

stituted abuse of the writ, and was barred
by procedural default, and (2) ends of jus-
tice did not require consideration of claims.

Affirmed.

1. Habeas Corpus ¢898(1, 2)

Abuse of the writ doctrine precluded
consideration of petitioner’s claim that his
mental health examination conducted by
independently retained psychiatrist was in-
adequate and unreliable; petitioner did not
include claim in prior habeas corpus peti-
tion, and failed to demonstrate cause for
omitting claim in first petition; moreover,
petitioner’s assertion that he included claim
in amendment to state habeas corpus peti-
tion did not establish cause where state
court dismissed amendment as, untimely.
2. Habeas Corpus 364

Procedural default doctrine precluded
consideration ‘of habeas petitioner’s claim
that his mental health examination conduct-
ed by independently retained psychiatrist
was inadequate and.unreliable; Georgia
statute would have led state habeas corpus
court to find claim procedurally defaulted
because petitioner did not raise claim in his
first or second:state habeas corpus peti-

tions. 0.C.G.A. § 9-14-51. Os

3. Habeas Corpus ¢=401, 897, 898(2)

“Ends of justice” doctrine allows habe-
as court to excuse state procedural de-
faults, abuses of the writ, and successive
claims ‘when consideration is necessary to
prevent a fundamental miscarriage of jus-
tice, and when petitioner has'made a color-
able showing’ of ‘factual innocence.

4, Habeas Corpus ¢401, 898(2)

Ends of justice did not require consid-
eration of petitioner’s claim that his mental
health examination conducted by indepen-
dently retained psychiatrist was inadequate
and unreliable; state supplied petitioner
with psychiatrist that he chose, and peti-

tioner made no colorable showing of factu-
al innocence.

984 FEDERAL REPORTER, 2d SERIES

Millard Farmer, Joseph M. Nursey
Atlanta, GA, John H. Blume, Columbia, sc.
for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlan.
ta, GA, for respondent-appellee.

Appeal from the United States District
Court for the Southern District of Georgia.

Before HATCHETT, EDMONDSON and
COX, Circuit Judges.

PER CURIAM:

In this capital case, we affirm the district
court’s ruling that all of the appellant’s
claims are barred due to abuse of the writ,

successive petition, or procedural default
doctrines. —

FACTS ©

On September 4, 1977, the appellant,
Christopher, Burger, who was seventeen
years old, and Thomas Stevens, army pri-
vates stationed at Fort Stewart, Georgia,
were drinking at a club on the army base.
Another private, James Botsford, had ar-
ranged for them to pick him up from the
Savannah airport and bring him back to the
base. After Burger and Stevens spent all
their money, they decided to rob a taxicab
driver. Roger Honeycutt, another soldier
who drove a taxicab to supplement his mili-
tary income, responded to-their call. After
entering the taxicab, Burger and Stevens
threatened Honeycutt with a knife and a
sharpening tool, forced him to stop the
taxicab, robbed him of $16, and’ placed him
in the back seat with Stevens. As Burger
drove the taxicab, Stevens instructed Ho-
neycutt to take off his clothes. Once Ho-
neycutt had undressed, Stevens threw Ho-
neycutt’s clothes out the taxicab window,
blindfolded him, tied his hands behind his

_back, and sexually assaulted him. Eventu-

ally, Burger and Stevens placed Honeycutt
in the trunk of the taxicab.

After Burger and Stevens picked up
Botsford at the Savannah airport and while
driving back to Fort Stewart, Burger and
Stevens told Botsford about the robbery
and conversed with Honeycutt in the trunk
through the back seat wall. After hearing

}
Cite as
the robbery, Botsford encourage:
and Stevens to release Honey:
farmed. But, after leaving Botsfor
pase, Burger and Stevens drove
into a pond with Honeycutt alive
‘trunk. A week later, Botsford er
law enforcement authorities. After
forcement officers arrested Burg
Stevens, they made complete conf
and Burger led law enforcement of!
‘Hloneycutt’s body.

PROCEDURAL HISTORY

On January 25, 1978, a jury «
Burger of murder, and the court
“the death penalty. Burger's direc
and post-conviction proceedings
tailed in Burger v. Kemp, 483
7719-82, 107 S.Ct. 8114, 3117-19, 9

_ 688 (1987). In this decision, the

_ Court affirmed the Eleventh Circ:
_ gl of Burger’s federal habeas cor
_ tion finding that his counsel’s per
_ was effective notwithstanding th<

Burger filed a second habeas co
- tion in the Georgia state courts.
ber 14, 1987, the state habeas cor
denied relief. Subsequently, th:
- Supreme Court stayed the procee
temanded the case to the state h
pus court in Butts County ,
United States Supreme Court's
Thompson v. Oklahoma, 487 U..
§.Ct. 2687, 101 L.Ed.2d° 702 (
Stanford v. Kentucky, 492 Us
$:Ct. 2969, 106 L.Ed.2d 306°(1989
ing the proceedings, the Suprem
Georgia stated:
The stay of execution is to be
in effect pending rendition
preme Court’s decision in Th
Oklahoma, and the superior

er asserts that 0.C.G.A. § a
Ye to amend a pleading =
court any time before a pretria
tered. Nonetheless, 0.C.G.A. §
vides the exclusive procedure for s:
of habeas corpus and does not cor
sion for the entry of a pretrial ord:


RIES

m loseph M. Nursey,
‘hn 11, Blume, Columbia, SQ:
ppellant. *

_eyn, Asst, Atty. Gen,, A " :
spondent-appellee.

the United States Distriet
outhern District of Georgia.

‘HETT, EDMONDSON and

udges.

: }
Ms ' i cay

case, we affirm the district
that’ all of the appellant’y
od due'to abuse of the wtit,
‘ion, or procedural defatilt

FACTS 2 4 TT,

r 4, 1977, the appellant,
rger, who was seventeen
Thomas Stevens, army pri-
at Fort Stewart, Georgia,
t a club on the army base
-, James Botsford, had ar
n *k him up from the
4 ring him back to the
rger and Stevens spent all
y decided to rob a taxicab
Honeycutt, another soldier
icab to supplement his mili-
oonded to-their call. After
<icab, Burger and Stevens
eyeutt with a knife and a
forced him to stop the
nim of $16, and’ placed him
with Stevens. As Burger
1b, Stevens instructed Ho-
_ off his clothes. Once Ho-
ressed, Stevens threw Ho-

s out the taxicab window,

_ tied his hands behind his
ily assaulted him. Eventu-
Stevens placed Honeycutt

the taxicab.

and Stevens picked up
»avannah airport and while
Fort Stewart, Burger and
itsford about the robbery
ith Honeycutt in the trunk
. seat wall. After hearing

hse

BURGER v. ZANT

1131

Cite as 984 F.2d 1129 (11th Cir. 1993)

of the robbery, Botsford encouraged Burg-
er and Stevens to release Honeycutt un-
harmed. But, after leaving Botsford at the
base, Burger and Stevens drove the cab
into a pond with Honeycutt alive in the
trunk. A week later, Botsford contacted
law enforcement authorities. After law en-
forcement officers arrested Burger and
Stevens, they made complete confessions,
and Burger led law enforcement officers to
Honeycutt’s body.

PROCEDURAL HISTORY

On January 25, 1978, a jury convicted
Burger of murder, and the court imposed

“the death penalty. Burger’s direct appeal

and post-conviction proceedings are de-
tailed in Burger v. Kemp, 483 US. 776,
779-82, 107 S.Ct. 8114, 3117-19, 97 L.Ed.2d
638 (1987). In this decision, the Supreme
Court affirmed the Eleventh Circuit’s deni-
al of Burger’s federal habeas corpus peti-
tion finding that his counsel’s performance
was effective notwithstanding the possible
conflict of interest and counsel’s failure to
present mitigating evidence. This affir-
mance ended Burger’s first federal habeas
corpus proceeding.

Burger filed a second habeas corpus peti-
tion in the Georgia state courts. On Octo-
ber 14, 1987, the state habeas corpus court
denied relief. Subsequently, the Georgia
Supreme Court stayed the proceedings and
remanded the case to the state habeas cor-
pus court in Butts County pending the
United States Supreme Court’s decision in
Thompson v. Oklahoma, 487 U.S. 815, 108
S.Ct. 2687, 101 L.Ed.2d 702 (1988), and
Stanford v. Kentucky, 492 U.S. 361, 109
S.Ct. 2969, 106 L.Ed.2d 806 (1989). In stay-
ing the proceedings, the Supreme Court of
Georgia stated:

The stay of execution is to be continued

in effect pending rendition of the Su-

preme Court’s decision in Thompson v.

Oklahoma, and the superior court’s is-

1. Burger asserts that 0.C.G.A. § 9-11-15 allows
a party to amend a pleading without leave of
court any time before a pretrial order is en-
tered. Nonetheless, 0.C.G.A. § 9-14-51 pro-
vides the exclusive procedure for seeking a writ
of habeas corpus and does not contain a provi-
sion for the entry of a pretrial order. Even if a

suance of its ruling in light thereof. At
that time, another certificate of probable
cause to appeal may be filed and we will,
if necessary, consider the question of
whether our habeas corpus procedural
default statute 0.C.G.A. § 9-14-51 bars
the claim contained in this successive ha-
beas corpus petition that as a matter of
constitutional law the death penalty
would not be imposed upon an individual
who was a minor at the time of the crime
for which he was sentenced or commit-

ted

On June 29, 1988, the Supreme Court in
Thompson held that the execution of a
person under sixteen years old violates the
Eighth Amendment. Conversely, in Stan-
ford, the Court held that the execution of a
person sixteen or seventeen years old does
not violate the Eighth Amendment. Twen-
ty-one months after the state habeas cor-
pus court’s original order dismissing Burg-
er’s second state habeas corpus petition as
successive within the meaning of 0.C.G.A.
§ 9-14-61 and twelve months after the Su-
preme Court’s Thompson decision, Burger
submitted a ninety-five page amendment to
his state habeas corpus petition. The state
habeas corpus court denied Burger’s re-
quest to file the amendment, and the Geor-
gia Supreme Court denied Burger’s applica-
tion for a certificate of probable cause to
appeal.! .

Thereafter, Burger filed his second fed-
eral habeas corpus petition. While the sec-
ond petition for writ of habeas corpus was
pending in district court, the Superior
Court of Glenn County scheduled Burger’s
execution for the period from December 18,
1990, to December 25, 1990. On December

14, 1990, the district court denied Burger’s
second application for federal habeas cor-
pus relief ruling that his claims were either
procedurally barred, constituted an abuse
of the writ, or meritless. Thus, Burger
filed an application for a certificate of prob-

pretrial order was required, Burger did not sub-
mit the amendment until twenty-one months
after the state habeas corpus court's original
order, which was filed October 14, 1987. Thus,
the court correctly found Burger’s amendment
untimely.


1132

able cause with the Eleventh Circuit Court
of Appeals. On December 17, 1990, the
Eleventh Circuit granted the certificate of
probable cause and stayed Burger’s execu-
tion because the issues he presented issues
were similar to those in Clisby v. Jones,
907 F.2d 1047 (1990), in which the court had
recently granted a rehearing en banc.”

ISSUES

Burger raises the following issues: (1)
whether he was denied his constitutional
right to a competent mental health evalua-
tion with a competent mental health profes-
sional, and whether an evidentiary hearing
should have been conducted on this claim;
(2) whether 0.C.G.A. § 17-10-80(b)(7)’s ag-
gravating circumstance is constitutionally
vague and overbroad as applied; (8) wheth-
er the penalty phase instructions provided
the jury with a constitutionally adequate
vehicle to consider all relevant mitigating
evidence; (4) whether the jury could have
construed the sentencing phase instruc-
tions to require that it unanimously agree
to the existence of mitigating circum-
stances; (5) whether the prosecutor's sen-
tencing argument’ violated the eighth’ and
fourteenth amendments; and (6) whether
the trial judge’s reasonable doubt definition
violated the Fourteenth Amendment.*

CONTENTIONS

Burger contends that his claims are not
procedurally barred because. he filed the
amendment to the second habeas corpus
petition in the state courts before the court
issued, a final order, Moreover, he argues
that under Georgia law, a party may
amend a pleading as a matter of right until
the entry of a final order if a pretrial order
is not entered.. See Jackson v, Paces Fer-
ry Dodge, 183 Ga.App. 502, 359 S.E.2d 412
(1987). Accordingly, in his view, this court
should address his issues on the merits,

The state, however, contends that the
district court acted properly in denying
Burger’s petition for writ of habeas corpus

2. The Eleventh Circuit subsequently vacated
Clisby. See Clisby v. Jones, 920 F.2d 720 (1990).

984 FEDERAL REPORTER, 2d SERIES

on abuse of the writ and procedural default
grounds. Moreover, it contends that Burg-
er has not presented any reasons which
require relitigation or reconsideration.

DISCUSSION

After a diligent review, this court con-
cludes that abuse of the writ, procedural
default, and successive petition doctrines
preclude consideration of all of Burger’s
claims. The district court dismissed each
of Burger’s claims on abuse of the writ,
procedural default, or successive petition
doctrines. Thus, we begin by explaining
the procedural bar doctrines.

In the district court’s December 14, 1990,
order, it eloquently differentiated between

abuse of the writ, successive petition, and
procedural default. It stated:

Abuse of the Writ. -

‘Under*‘abuse of. the writ’ doctrine, a
federal court may decline to entertain a
second or subsequent habeas corpus peti-
tion that raises a claim that the petitioner
‘did not raise in a prior petition.. Eg.
McCleskey v. Kemp [Zant], 890 F.2d
342,346 (Lith. Cir.1989), cert. granted,

. (496.. U.S. 904]. 110.S.Ct, 2585, [110
L.Ed.2d. 266] (1990)...:The state has the

- burden of pleading that the habeas peti-
tioner has abused the writ. E.g. John-
son v. Dugger, 911 F.2d 440, 478 (11th
_Cir.1990); MeCleskey;, 890 F.2d: at 346.
The state’s initial burden is not a heavy
one. It need only. recount the petition-
er’s writ history, identify claims not

raised before the instant: petition, . and

allege that the petitioner abused the. writ

' in violation of 28 U.S.C. § 2254,. Rule

9b). Eig. McCleskey, 890. F.2d at 346-
47. Once the state satisfies the burden
of pleading abuse, ‘the. burden of proving
that there has been no abuse shifts to

._ the -petitioner.’. Johnson, 911 F.2d at

478. This burden is met when the peti-

 tioner shows ‘that he did not deliberately

abandon the claim, that his failure to

3. We address Burger’s final issue regarding. pro-

cedural bar doctrines in our discussion concern-
ing each individual issue,

a ce

CS a gg a “ye Aa ORONO emcee

RB!
Cite as 9
raise it was not due to inexcusal:
glect’ McCleskey, 890 F.2d at 34
‘that he ... had some justifiable
for omitting the claim in an earli«
tion. Johnson, 911 F.2d at 478 (
omitted). A petitioner may satis
burden, for example, by (1) showir
there is newly discovered eviden:
was not available at the time of th
nal filing, or (2) that there has
retroactive change in the law. Jd
if the prisoner cannot convince tr
that there was no abuse of the
‘may still be able to obtain feder
review by establishing that the
justice’ so require.’ Id. (citatic
ted). While the contours of the
justice’ are rather fuzzy, it is c!
‘the ends of justice exception
require reaching the merits of
that does not allege a violation o
law or where the record discl:
absence of such a violation.’ 1
Dugger, 891 F.2d 807, 810 (11th
(citation omitted), cert. denied,
——] 111 S.Ct, 222 [112 L.Ec
(1990).

Successive Petition
A ‘successive petition’ is one
es a claim already adjudicated ‘
prior petition. Martin, 891 F.
[809]; McCleskey, 890 F.2d at ©
9(b) of the habeas corpus [sie] s
a district court may dismiss s:
unless the ‘ends of justice’ 1
favor of deciding the merits of
Eg. Collins v. Zant, 892 F.2d

(11th Cir.) (per curiam), cert. de
U.S. ——] 111 S.Ct. 225 [11
180] (1990). The ends of just
context ‘are defined. by objec
dards such as whether there
and fair hearing on the, origin
or whether there was an }
change in the facts of the c:
law.’ Fleming v. Kemp, 887
948 (11th Cir.1988) (per curiam
nied, [490 U.S. 1028] 109 §.Ct
L.Ed.2d 200] (1989).


SERIES

ch t and procedural default,

Okcuvecr, it contends that By r
presented any reasons) whig
igation or reconsideration,»:

DISCUSSION

iligent review, this court
abuse of the writ, pro
successive petition do
isideration of all of Bu
district court dismissed ¢
claims on abuse of the v
iefault, .or successive petiti
‘hus, we begin by” explai
al_bar doctrines.

riet.court’s Duepnaieans 14, ae
juently. differentiated between Hi
writ, successive petition, and

efault.., RM stated: 01) a
Mate a 4
Abuse | of the Writ... ve Ny

abuse of°the writ’ dvetsindi
art may decline to entertain'%
subsequent habeas corpus'peth
aises a claim'that the petitioner
sige'4™" g ‘prior petition. oMigi
mp [Zant }, 890°Ri2d

Lhen: vit. 1989), cert. granted,
904]... 110. S.Ct. 2585,,: [110
16] (1990),;.;The state has the
pleading that the habeas peti
abused 'the writ. E.g. John
gger, 911 F.2d 440, 478.(i3th
MeCleskey, 890 F.2d: at 346,
; initial burden is not-a' heavy
eed ‘only..recount the petition:
history, identify claims ;not
ore the instant petition,:.and
the petitioner abused the, writ

1 of 28 U.S.C. § 2254,; Rule
McCleskey, 890. F.2d at 346>
the state satisfies the burden
4 abuse, ‘the burden of proving
has been no abuse shifts, to
uner.. Johnson, 911 F.2d.at
burden is met when the peti-
vs ‘that he did not deliberately
he claim, that his failure ,to

, Burger's final issue regarding,pro- ]
ioctrines in our discussion concern-
ividual issue,

,

BURGER v. ZANT

1133

Cite as 984 F.2d 1129 (11th Cir. 1993)

raise it was not due to inexcusable ne-
glect’ McCleskey, 890 F.2d at 347, and
‘that he ... had some justifiable reason
for omitting the claim in an earlier peti-
tion.’ Johnson, 911 F.2d at 478 (citation
omitted). A petitioner may satisfy this
burden, for example, by (1) showing that
there is newly discovered evidence that
was not available at the time of the origi-
nal filing, or (2) that there has been a
retroactive change in the law. Jd. Even
if the prisoner cannot convince the court
that there was no abuse of the writ, he
‘may still be able to obtain federal court
review by establishing that the ‘ends of
justice’ so require.’

justice’ are rather fuzzy, it is clear that
‘the ends of justice exception does not
require reaching the merits of a claim
that does not allege a violation of federal
law or where the record discloses the
absence of such a violation.’ Martin v.
Dugger, 891 F.2d 807, 810 (11th Cir.1989)
(citation omitted), cert. denied, [— U.S.

——] 111 S.Ct. 222 [112 L.Ed.2d 178].

(1990).

Successive Petition

A ‘successive petition’ is one that rais-
es a claim already adjudicated through a
prior petition. Martin, 891 F.2d at 890

[809]; McCleskey, 890 F.2d at 346. Rule

9(b) of the habeas corpus [sic] states, that
a district court may dismiss such claims
unless the ‘ends of justice’ militate in
favor of deciding the merits of the claim.
E.g. Collins v. Zant, 892 F.2d 1502, 1505
(11th Cir.) (per curiam), cert. denied, [—
U.S. ——] 111 S.Ct. 225 [112 L.Ed.2d
180] (1990). The ends of justice in this
context ‘are defined by objective stan-
dards such as whether there was a full
and fair hearing on the original petition
or whether there was an intervening
change in the facts of the case or the
law.’ Fleming v. Kemp, 887 F.2d 940,
943 (11th Cir.1988) (per curiam), cert. de-
nied, [490 U.S. 1028] 109 S.Ct. 1764 [104
L.Ed.2d 200] (1989).

Id. (citation omit-:
ted). While the contours of the ‘ends of :

Procedural Default

If a petitioner is unable to obtain a
state court ruling on the merits of his
claim, a district court generally is pre-
cluded from reaching the merits of the
claim. Such a procedural default, howev-
er, will not bar a federal court from
reaching the merits of a claim where a
petitioner can show sufficient cause for
and prejudice from the default. Wain-
wright v. Sykes, 483 U.S. 72, 87 [97 S.Ct.
2497, 2506, 538 L.Ed.2d 594] (1977).
Where, for example, ‘a petitioner pres-
ents a claim that the state collateral at-
tack court refused to hear [sic] because it
was contained in a successive petition
[pursuant to a state successive petition
rule],. the petitioner must demonstrate
cause for his failure to raise the claim in
his earlier collateral proceeding and actu-
al prejudice.’ Presnell v. Kemp, 835
F.2d -1567, 1580, (11th Cir.), cert. denied,
488 U.S. 1050 [109 S,Ct.,882, 102 L.Ed.2d
1004] (1988). This rule also applies to
unexhausted claims not previously pre-
sented in state collateral attack proceed-
ings where the district court can discern
from state law that a. successive. state
collateral attack court would deem the
claims procedurally barred. -Collier v.
Jones, 910 F.2d 770, 773 (11th, Gir.1990).

The district court’s analysis is consistent
with the Supreme Court’s recent ruling in
McCleskey v. Zant, 499 U.S. ——, 111 S.Ct.
1454, 113 L.Ed.2d 517 (1991). In McCles-
key, the Supreme Court held that both a
procedural default and an abuse of the writ
could be excused after a showing of cause
and prejudice. It stated:

We conclude from the unity of structure
and purpose in the jurisprudence of state -
procedural defaults and abuse of the writ
that the standard for excusing the fail-
ure to raise a claim at the appropriate
time should be the same in both contexts.
We have held that a procedural default
will be excused upon a showing of cause
and prejudice.... We now hold that the
same standard applies to determine if
there has been an abuse of the writ
through inexcusable neglect.


548 Ga
Syllabus Opinion by the Court.
HEAD, Justice.

1. The provisions of the Fair Labor
Standards Act as to minimum wages and
overtime pay, U.S.C.A., Title 29, §§ 206,
207, do not apply to all employers and em-
ployecs. The exemptions from the provi-
sions of §§ 206, 207, are numerically stated
in § 213, U.S.C.A.,Title 29, the fourth being
“(4) Any employce of a carrier by air sub-
ject to the provisions of §§ 181-188 of
Title 45 [U.S.C.A.],” which latter sections
of the Railway Labor Act, Title 45 U.S.
C.A., and §§ 151, 152, 154, and 163 of said
Act, are made applicable to wage disputes
between the employer and employees of
carriers by air engaged in interstate com-
merce. Under such sections it is made the
duty of the employer and employecs to
settle disputes as to rates of pay, rules, and
working conditions, and such sections pro-
vide the method and manner of adjusting
disputes not settled by the employer and
employees.

2. In this case, the plaintiff having based
his action on provisions of the Fair Labor
Standards Act, U.S.C.A., Title 29, §§ 206,
207, not applicable to him, his attack on §
3-704 of the Ga.Ann.Code, as violating
stated provisions of the Federal Constitu-
tion, will not be ruled upon, since such at-
tack, even if sustained, would not benefit
him in this case.

3. The brief of evidence shows that
certain checks for overtime pay were issued
by the defendant to the plaintiff. It is not
necessary that we express any opinion as
to whether or not the evidence shows that
these payments were made in an amicable
adjustment of the controversy between the
parties as to rates of pay under the Rail-
way Labor Act applicable to carriers by
air in interstate commerce, since the plain-
tiff and the defendant are exempted from
the provisions of the Fair Labor Standards
Act, relied upon by the plaintiff to support
a recovery by him. It follows that the judg-
ment denying the motion for new trial must
be affirmed.

Judgment affirmed.

All the Justices concur.

43 SOUTH EASTERN REPORTER, 2d SERIES .

On Rehearing.

In his motion for rehearing the plaintiff
in error contends that this court overlooked
the rule stated in Pyron v. Arnold, 67 Ga.
App. 742, 21 S.E.2d 461, where it was held
that an employee may bring an action for
wages alleged to be due under the general
provision of § 206 of the “Fair Labor
Standards Act,” without reference to the
exceptions to the general provisions of such
section; and that in such instance benefit
of the exceptions must be taken by plea.
The rule stated in the Pyron case is not in
conflict with any ruling made in this case.
In the Pyron case the allegations of the
plaintiff's petition did not show that the
plaintiff's claim came within the exceptions
to the general provisions of § 206. In the
present case the allegations of the plaintiff's
petition definitely placed his claim within
the exceptions to the general provisions of
§ 206, and the plaintiff could not recover
On rehearing, the judgment of affirmance

is adhered to.

BRYANT v. STATE.
No. 15886.

Supreme Court of Georgia,
July 10, 1947.

Homicide €=250
Evidence warranted conviction of
murder,
—_——_@———

Error from Superior Court, Mitchell
County; Carl E. Crow, Judge.

Sweetie Bryant, Jr., was convicted of
murder, and he brings error.

Affirmed.

Sweetie Bryant, Jr., was indicted by the
grand jury of Mitchell County for the
murder of his father-in-law, Will Davis
by shooting him with a shotgun. He wat
convicted without recommendation of
mercy, and was sentenced to be electro
cuted. He made a motion for new trial
on the general grounds only, which Ww

WATKINS y. HARTFORD ACCIDENT & INDEMNITY CO. Ga. 549
Cite as 43 S.E.2d 549

overruled by the trial judge. The excep-
tion here is to the overruling of his mo-
tion for new trial,

The evidence showed that Will Davis
was shot by a shotgun and was badly beat-
en with a blunt instrument on his head
and face. The physician called to attend
him testified that the deceased lived only a
few minutes after the physician arrived,
and that the shotgun wound would have
been sufficient to cause his death. The de-
ceased was killed near the gate of his home
in Mitchell County, and a broken shotgun
was found by the body.

Clinton Wimberly testified that he was
plowing in a field near the scene of the
homicide, and heard two gunshots. He ran
in the direction of the shots and saw the
defendant beating the deceased over the
head with a gun. Minnie Wimberly, wife
of the witness, testified that she was with
her husband in the field, and that she saw
the same occurrence related by him.

Florence Wimberly (or Marcus) testified
that at the time Will Davis was killed she
was on her porch across the road from
the gate to his house. She saw the defend-
ant going along the hedgerow that leads
from the gate to Will Davis’s house, and
he was stooped over. Shortly after the
defendant came up the hedgerow, Will Da-
vis drove up in a car. When the deceased
turned to open the gate, the defendant shot
him.

Eloise Brown identified the gun exhibited
at the trial as her father’s gun, and testi-
ficd that the defendant had borrowed it
from her on the day that the deceased was
killed, stating that he wanted to sce if he
could kill a squirrel,

Grover Hones, deputy sheriff of Mitchell
County, testified that he was unable to find
the defendant for two months after the
homicide. When he found the defendant

was in Fort Lauderdale, Florida.

There was evidence tending to show that
the defendant had been separated from his
wife, Pink Rose, a daughter of the de-
Ceased, and that on an occasion previous to
the homicide, the defendant had instituted

beas corpus proceedings to obtain cus-
tody of his child from the deceased, and

that the deceased had delivered the custody
@f the child.

The defendant in his statement recounted
a former separation between himself and
his wife, and that he had obtained custody
of his child from the deccased by court
proceedings. He stated that after obtain-
ing custody of his child, he went to Florida,
and his wife wrote him to come back. He
brought the baby back and left it at the
home of the deceased where his wife was
staying. He again went to Florida and
stayed about a week, and when he returned
he asked where his wife was and they told
him they did not know. In regard to the
killing his only statement was: “I met him
at the gate and I didn’t think nothing about
hurting him and that is where I killed him
at.”

J. D. Gardner, of Camilla, for plaintiff
in error,

Maston O'Neal, Sol. Gen., of Bainbridge,
Eugene Cook, Atty. Gen., and Wright Lip-
ford, Asst. Atty. Gen., for defendant in
error,

Syllabus Opinion by the Court
HEAD, Justice.

The evidence in this case amply support-
ed the verdict, and it was not erroneous to
overrule the motion for new trial, which
was based on the general grounds only,

Judgment affirmed.

All the Justices concur.

w
© E rey NUMBER SYSTEM
T

WATKINS v. HARTFORD ACCIDENT &
INDEMNITY CO. et al.

No. 31603.

Court of Appeals of Georgia, Division No. 2.
July 16, 1947.

1. Workmen’s compensation C1818, 1939
Evidence sustained award of Work-
men’s Compensation Board determining that
disability from which claimant suffered as
result of superficial burns of chest had
terminated and that condition from which
claimant was suffering was not result of
accident, and, therefore, court was with-

én se


* m2

we

oF

VERSITY
SCHOO? CF 1 4¥

—
is

~

744 Ga.

215 Ga. 377
Homer BUNCKLEY

Vv.
STATE.
No. 20601.

Supreme Court of Georgia.
Oct. 9, 1959.

Defendant was convicted of robbery
by force without a recommendation of
mercy. The Superior Court, Talbot Coun-
ty, rendered judgment denying defendant's
motion for new trial as amended, and de-
fendant brought error. The Supreme
Court, Duckworth, C. J., held, inter alia,
that testimony of G. B. I. agent was ad-
missible and sufficient to mect requirements
under Code, § 38-411 as to production of
evidence that defendant’s statements were
freely and voluntarily made, though testi-
mony of sheriff, who was present when
statements were made, was stricken because
he would not deny that possibly he sug-
gested that it would be casier on defendant
if he told the truth.

Judgment affirmed.

1. Criminal Law C791

In prosecution for robhery by force,
evidence, including defendant’s confession
that he and others committed the robbery,
authorized charge on conspiracy.

2. Criminal Law €=787(1)

In prosecution for robbery by force,
charge that a reasonable doubt is one based
on some ground in the testimony, the want
of testimony, or defendant’s statement was
not objectionable as calling jury’s atten-
tion to the fact that defendant did not make
a statement at trial.

3. Criminal Law C=762(5)

Charge to jury in prosecution for rob-
bery by force that, under the charge made
by state, jury must find that defendant used
force and that he took the property with

110 SOUTH EASTERN REPORTER, 2d SERIES

intent to sell it merely stated elements of
the crime charged and was not objection-
able as charging jury to find defendant

guilty.

4. Criminal Law €=531(2, 3)

In prosecution for robbery by force,
uncquivocal testimony of G.B.I. agent that
defendant’s statements were freely and vol-
untarily made and that he did not hear sher-
iff tell defendant that it would be easier on
him if he made a statement was admissible
and sufficient to meet statutory require-
ments as to production of evidence that
statements were frecly .and voluntarily
made, though testimony of sheriff, who was
present when confessions were made, was
stricken because he would not deny that
possibly he suggested that it would be easier
on defendant if he told the truth. Code, §
38-411.

5. Robbery €=24(1)
Evidence was sufficient to support con-
viction for robbery by force.

——__>——-

John Andy Smith, Brooks Culpepper,
Robert H. Jordan, George R. Jacob, Tal-
botton, for plaintiff in error.

John JI. Land, Solicitor-Gen., Colum-
bus, Eugene Cook, Atty. Gen., Rubye G.
Jackson, Deputy Asst. Atty. Gen., for de-
fendant in error.

Syllabus Opinion by the Court

DUCKWORTH, Chief Justice.

The plaintiff in error was indicted, tried,
and convicted in Talbot Superior Court of
robbery by force, and the jury failed to re-
turn a recommendation for mercy. There-
after, he filed a motion for new trial, which
was subsequently amended to add addition-
al grounds, and, after a hearing, the mo-
tion as amended was denied, The exception
is to this judgment. Held:

[1] 1. Several of the special grounds
complain of the charge on conspiracy.

HUM aegaint yeh RS SIR a em

JOHNSON v. PLUNKETT Ga. 745
Cite as 110 S.H.2d 745

None of these is meritorious since the con-
fession of the defendant here showed he
and others committed the robbery, and the
charge on conspiracy was thus authorized
by the evidence. Gossitt v. State, 182 Ga.
535, 536-537, 186 S.E. 417; Harris v. State,
207 Ga. 287(2), 61 S.E.2d 135. And the
evidence and the charge are in the trial of
this defendant and not used in the trial
of the other conspirators jointly indicted
with him,

[2] 2. While the defendant did not
make an unsworn statement during the
trial, and the court charged that a reason-
able doubt is one based on some ground in
the testimony, the want of testimony, or of
the defendant’s statement, the special ground
complaining thereof does not allege or show
injury, and it is a mere conclusion of the
movant that the court thus called the jury’s
attention to the fact that the defendant had
not made a statement but remained silent.
The special ground complaining of this ex-
cerpt from the charge is without merit.

Teague v. State, 208 Ga. 459 (5-7), 67 S.
E.2d 467,

[3] 3. It is also a mere conclusion of
the movant that the court charged that the
jury must find the defendant guilty, in stat-
ing that, “under the charge made by the
State * * * you must find that the de-
fendant used force, and you must find that
he took the property * * * with the in-
tent to steal same.” The court merely stat-
ed elements of the crime, and there is no
merit in the special ground complaining
that the court thus charged the jury to
find the defendant guilty.

[4] 4. While the evidence of the sher-
iff, who was present when the confessions
were made, was stricken because he would
not deny possibly suggesting that it would
be easier on the defendant if he told the
truth, the testimony of the G. B. I. agent
was unequivocally that the statements were
freely and voluntarily made, and that he
did not hear the sheriff tell the defendant
“that it would be lighter on him if he did

110 S.E.2d—4714

make a statement.” The State met the re-
quirements of producing evidence that the
statements were freely and voluntarily made
as required by Code, § 38411. The ground
complaining of the allowance of the G. B.
I. agent’s testimony, because the sheriff was
present and his testimony disallowed, for
the reason given above is without merit.
See Harris v. State, 214 Ga. 739, 107 S.E.2d
801, and cases cited therein.

[5] 5. The evidence was sufficient to
support the verdict, and the general grounds
are without merit. For the reasons stated
above, the court did not err in denying the
motion for new trial as amended.

Judgment affirmed.

All the Justices concur,

w
© E KEY NUMBER SYSTEM
T

215 Ga. 353
Nathaniel JOHNSON

Vv.
J. T. PLUNKETT, Sheriff, et al.
No. 20567.

Supreme Court of Georgia.
Oct. 9, 1959.

Petitioner brought habeas corpus pro-
ceeding against the sheriff and jailer of
Richmond County. The City Court of
Richmond entered judgment denying writ
of habeas corpus, and the petitioner
brought error. The Supreme Court, Haw-
kins, J., held that where record disclosed
that petitioner had been indicted, tried,
convicted, and sentenced for offense of
rape, and that he was being detained by
reason of such conviction and_ sentence,
City Court properly denied writ of habeas
corpus attacking legality of arrest and

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BRYANT, Boisey, black, hanged at Nashville, Georgia, on September 12, 1902. _

"Adel, Ga,, August 9, 1902-No, the sheriff has never granted me the privilege of pulling
the death trap af Boisey Bryant, J never asked that priveleges I asked the sheriff to let
me cut him down after he was hanged, and was granted same. +f the law will allow, I will
pull the death trap on him, and think it would be right for me to do so, but I have never
asked for that privilege. /s/ Mrs. Etta Hall."(By Telegraph to the Editor of the World).

"Mrs, Hall is the daughter of W. A. Hunds who was the city marshal of Adel, a town in
Rerrien County, Ga. “e had been particularly active against the negro gamblers of the town,
and was. fatally wounded by Boisey Bryant, an 18-year-old negro, whom he was trying to
"arrest. After his conviction and sentence it was currently reported that Mrs, Hall had re-=
cuested of Sheriff Swindle of Berrien County the privilege of pulling the trap which wuld
launch the soul of the mrderer into eternity, and that he had granted the request. In the
discussion which followed this remarkable proposition it was developed that under the laws
of Georgia the hanging of criminals condemned to death must be done by the sheriff or a
regularly appointed deputy, and that a woman was not eligible -to appointment as deputy
sheriff. Thus Georgia avoided the unique if somewhat questionable distinction of having a
woman hang a man, At the time the request of Mrs, Hall for permission to participate in
the execution of her father's murderer was made she is quoted as having said: ‘why shouldn't
I be one of the instruments of his death? Did-he not kill my father in cold blood when he
was only trying to do his duty in arresting him? I suppose I am as tender-hearted about
most things as other wmen are, but in this case it is different.' Mrs, Hall is described
as an attractive looking woman of about 25 years and is a widow, She is usually as mild-
mannered as other women, but in connection with the murder of her father, to whom, it is
said, she was deeply attached, she is determined and sees nothing out of the way in her
participation in the execution,

"The murder for which Boisey Bryant will die on September 12 was committed in May, The negro
was wanted on a misdemeanor charge and Marshal Hunds undertook to arrest him. He drew a
pistol and sent a bullet through the marshal's stomach, the wound resulting in death four
days later. Bryant took to the woods, but a vigorous hunt was at once instituted, and the
next day he was captured and taken to Nashville, When the marshal died, there wasmuch talk
of lynching and had not Mrs, Hall been so prostrated on account of the tragedy that she
could not urge on the lynching it is probable that summary vengeance would have been taken
on the murderer at that time. A special term of courtwas called, Bryant was placed on trial,
convicted and sentenced to be hanged in Nashville on September 12, The execution will be
private, though the twelve guards who will be on duty will, at Mrs, Hall s request, be
friends of her dead father, The trial was closely watched by Mrs. Hall, and she is quoted
as saying: 'I could hardly keep from trying to take summary vengeance on that negro even in
the courtroom,'' ARKANSAS GAZETTE, Little Rock, Ark.e, 8-17-1902 (13-3.)

"Special Dispatch to the Journal.) Nashville, Cae, Sept. 12,-Boisy Bryant was hanged
here today at noon for the murder of Town Marshal Hunds. Mrs, Etta Hynds Parker,
daughter of the murdered officer, watched the proceedings of the execution from the
scaffold trap. As soon as Bryant was pronounced dead, Mrs. Parker, with her father's
knife, cut the body of the murderer down. Mrs. Parker retained the first piece of rope
for herself. Five hundred persons were allowed to witness the execution and the negro's
body was turned over to friends as none of his relatives were present. Bryant was
XAKEERXERRA interviewed shortly before the execution, saying that he had been saved

and was ready to go and did not dread death. He said he had killed Hunds after he

had covered him with a cocked pistol, Mrs. Etta Hunds was married on Synday last to Mx
Re C. Parker. Her husband had told her that he was anxious to hang Bryant and she had
expressed the wish that he could spring the trap as she herself could not, The crime
for which Bryant was hanged today, was committed in Adel, Gae, a nearby village, last
May. The negro was wanted in the town on a misdemeanor charge and Town Marshal Hynds
attempted to arrest him, As the marshal approached Bryant, the negro drew a pistol

and fired upon the officer, mortally wounding him, Bryant escaped, but was captured a
few days later, and brought to Nashville. Uving to threats of lynching a special term
of court was called and Bryant was convicted and sentenced to be hanged on September
12th."

JOURNAL, Atlanta, Georgia, September 12, 1902 (1/2&3.)


"(Speical Dispatch to the Journal.) Sparks, Ga., May 27. = It is reported from Adel that
Marshal Hires, who was shot last Thursday night by a young negro boy, is rapidly sinking
and is expected to live but a few hours, Six or eight negro gatiblers entered into a
conspiracy to kill Hires, it is said, and hired this negro to do it, agreeing to pay him
#S. The negro boy and five of his accomplices are now in.the county jail, Excitement is
running high, It has only been-a few months since one of the marshals of Sparks was killed
by a negro gambler who escaped." JOURNAL, Atlanha, Georgia, May 27, 1902 (12=1,)

"Valdosta, May 23, = The following telegram was received by the Times at eleven o'clock
today from Adel, Gae: 'City Marshal Hyers was shot and probably fatally wounded last night
by a negro boy whom he attempted to arrest, A warrant had been sworn out against the

negro for stealing money and when Marshal Hyers came upon him the boy drew a .38 caliber ree
volver and fired at close range, the ball entered the lower bowels and the most serious
results are feared, After falling from the shot Mr, Hyers arose and fired three times at
the fleeing negro but as he was dazed his aim was bad, and the negro made good his escape,
The town authorities have offered $50 reward for his capture, He is about 17 years old
and of ginger cake color. Dre Je Be Se Holmes, of Atlanta, will arrive today and assist
the doctor here in perfroming an abdominal operation, There is no braver, truer man than
Marshal Hyers and while life seems to hang on a brittle ghread it is devoutly hoped that he
will recover,"

JOURNAL, Atlanta, Georgia, May 23, 1902 (9=.)


. od
: e ia
ia *

DAILY OPINION SERVICE

United States Supreme Court 2135

+

\, In Strickland v..Washington, 466 U.S. 668 (1984), this Court held
. that a “defendant’s claim.that counsel’s assistance was so defective
_ aS: to require reversal of a conviction or death sentence has two
components.”:Jd., at 687. First, the defendant must show that coun-
_ sel’s errors were so-serious that his performance as the “counsel”
.. guaranteed under the Sixth Amendment was deficient. Second, the
defendant must show that he suffered prejudice because of coun-
sel’s performance. In the context of a capital sentence, the defen-
dant must demonstrate “a reasonable probability that, absent the
errors, the sentencer.. .. would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.”
Id., at 695. ae
| A
In assessing the adequacy of counsel’s performance, “strategic
choices made ‘after thorough investigation of law and facts relevant
. to plausible options are virtually unchallengeable.” Jd, at 690. But
“strategic choices made after less than complete investigation are.
reasonable precisely to the extent that reasonable professional judg-
ments support the limitations on investigation.” Jd., at 690-691.
Here, counsel did not believe that evidence of Burger’s violent and
disturbed family background would benefit his client because Bur-
ger “had been involved in a beating and a number of things that
indicated violence and stuff at an earlier [age].”. App. 49. Counsel’s
reason for not.presenting the sentencing jury with evidence of Bur-
ger’s mental and emotional immaturity is ambiguous.” It appears
that counsel believed that the only relevant testimony in mitigation
of a capital sentence could have been “something like he was a good
boy and went to church.” Jd., at 63. Most telling is counsel’s expla-
nation of the type of mitigating evidence that would be relevant at
the sentencing hearing: “anything good about him, anything — of
course, it was my understanding that that is very broad. That you

can generally put up anything you can find that is good about any-

body in mitigation of the sentence.” Jd., at 51.

Burger’s stunted intellectual and emotional growth and the
details of his tragic childhood are far from “good,” and it is true
that background information would have “indicated violence and
stuff at an earlier [age],” id, at 49. But this Court’s decisions
emphasize that mitigating evidence is not necessarily “good.” Fac-
tors that mitigate an individual defendant’s moral culpability
“ste[m] from the diverse frailties of humankind.” Woodson v. North
Carolina, 428 U.S. 280, 304 (1976) (plurality opinion of Stewart,
POWELL, and STEVENS, JJ.) (emphasis added). In a capital case
where the defendant is youthful — in fact, a child, measured by
chronological,?, emotional or intellectual maturity — evidence of
these facts is extraordinarily germane to the individualized inquiry
that the sentencing jury constitutionally is required to perform.

“[{E]vidence of a turbulent family history, of beatings by.a harsh |

father, and of severe emotional disturbance is particularly
relevant,” Eddings v. Oklahoma, 455 U.S. 104, 115 (1982),
“because of the belief, long held by this society, that defendants
who commit criminal acts that are attributable to a disadvantaged

2Counsel testified: °
“The particular psychologist I had was — gave Mr. Burger an I.Q. test and found
it to be 82. And, he also was of the opinion that Mr. Burger was a sociopath with
a psychopathic personality. And, on cross examination in the confession phase,
this attorney asked, he commented to the effect, I can’t remember the exact com-
ment, sociopath was not crazy, he didn’t belong in an insane asylum, and he
wasn’t — shouldn’t be treated as a criminal because of his compulsive behavior.
But, made something — well, you can’t put them in an insane asylum because
they will let him out. Didn’t know what to do with him. I felt that would be —
that and related questions would be asked in the presence of the jury, so I decided
at that point not to use the testimony of the psychologist in that phase.” Jd., at
62. .
When asked whether he considered using a psychologist for something other than
showing that Burger’s confession was involuntary, counsel responded:
“I could have — if he had been of the opinion, you know, question of sanity, I
could have used that instance, but he was not of that opinion. I did not see the
benefit of going out and trying to find the sociologist, or psychologist to use in
that particular trial in that particular place, because I did not think that that
would be effective.” /d., at 63. cow!

3although an individual may be held criminally responsible at the age of 13,

Ga. Code Ann. § 16-3-1 (1982), the age of legal majority in Georgia is 18 years,
§ 39-1-1.

background, or to emotional and mental problems, may be less cul-
pable than defendants who have no such excuse.” California v.
Brown, 479 U.S. — , — (1987) (O°-CONNOR, J., concurring). See
Zant v. Stephens, 462 U.S. 862, 885 (1983) (defendant’s mental ill-
ness perhaps:should mitigate the penalty). This Court’s previous
observation bears emphasis:
“[Y]outh is more than a chronological fact. It is a time and
condition of life when a person may be most susceptible to
influence and to psychological damage. Our history is replete
with laws and judicial recognition that minors, especially in
their earlier years, generally are less mature and responsible
than adults. Particularly ‘during the formative years of child-
hood and adolescence, minors often lack the experience, per-
spective, and judgment’ expected of adults. Bellotti v. Baird,
443 US. 622, 635 (1979).” Eddings v. Oklahoma, 455 U.S.,
at 115-116 (footnotes omitted).
See Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (a 14-year-old
“cannot be compared with an adult” when assessing the voluntari-
ness of a confession). Where a capital defendant’s chronological
immaturity is compounded by “serious emotional problems, ... a
neglectful, sometimes even violent, family background, . .. [and]

mental and emotional development ... at a level several years —

below his chronological age,” id., at 116, the relevance of this infor-
mation to the defendant’s culpability, and thus to the sentencing
body, is particularly acute. The Constitution requires that a capital -
sentencing system reflect. this difference in criminal responsibility
between children and adults. bg Fa
Where information at the sentencing stage in a ‘capital case may
be highly relevant, counsel’s burden of justifying a failure to inves- —
tigate or present it is similarly heightened. There is no indication
that counsel understood the relevance, much less the extraordinary
importance, of the facts of Burger’s mental and emotional imma-
turity, and his character and background, that were not investi-
gated or presented in this case. This evidence bears directly on

_ Burger’s culpability and responsibility for the murder and in fact

directly supports the strategy counsel claimed to have deemed best
— to emphasize the difference in criminal responsibility between
the two participants in the crime. Absent an explanation that does _
not appear in this record, counsel’s decision not to introduce — -
or even to discover — this mitigating evidence is unreasonable, and
his performance constitutionally deficient.4 —

B
Imposing the death penalty on an individual who is not yet

legally an adult is unusual and raises special concern.® At least,

4s the Court notes, ante, at —, Alvin Leaphart, the appointed counsel who
represented petitioner in the state courts, was an experienced and respected law-
yer. In concluding there was ineffective assistance in this case, I do not question
the Court’s view. Any lawyer who has participated in litigation knows that judg- .
ment calls — particularly in a trial — cannot always be reasonable or correct.
Moreover, this Court has not yet addressed the question presented in Thompson
v. Oklahoma, 724 P.2d 780 (Okla. Crim. App. 1986), cert. granted, 479 U.S. —
(1987), whether the Eighth Amendment imposes an age limitation on the applica-
tion of the death penalty. See Eddings v. Oklahoma, 455 U.S. 104, 110, n. 5
(1982). :

I also share the concern expressed by Judge Edenfield in Blake v. Zant, 513
F.Supp. 772, 802, n. 13 (S.D. Ga. 1981) that the routine raising of charges of inef-
fective assistance of counsel is likely to have a significant “chilling effect” on the
willingness of experienced lawyers to undertake the defense of capital cases. See
ante, at —, n. 2. In this case, however, I conclude that the facts and circumstances
that no one. now disputes clearly show that counsel made a serious mistake of
judgment in failing fully to develop and introduce mitigating evidence that the
Court concedes was “relevant” and that the jury would have been compelled “to
consider”. See ante, at —, n. 7.

*We noted in Eddings v. Oklahoma, 455 U.S. 104 (1982) that “{e]very:State
in the country makes some separate provision for juvenile offenders.” Jd., at 116,
n. 12 (citing Jn re Gault, 387 U.S. 1, 14(1967)). Of the 37 States that have enacted
capital punishment statutes since this Court’s decision in Furman v. Georgia, 408
U.S. 238 (1972), 11 prohibit the execution of persons under 18 at the time of the
offense. Three States impose a prohibition at age 17, and Nevada sets its limit
at age 16. Streib, The Eighth Amendment and Capital Punishment of Juveniles,

: 34 Cleveland State L. Rev. 363, 368-369, and nn. 33-36 (1986). Of the States per-

mitting imposition of the death penalty on juveniles, over half of them explicitly
denominate youth as a mitigating factor. The American Law Institute’s Model
Penal Code capital punishment statute states an exclusion for defendants “under
18 years of age at the time of the commission of the crime.” § 21 0.6(1)(d) (1980).

=

2136 United States Supreme Court .<_

a a —
a a

‘CALIFORN

where a State permits the execution of a minor, great-care must be
taken'to‘ensure that the minor-truly deserves to be treated as an

x * adult.’ A specific inquiry. including “age, actual maturity, family

environment,’ education, emotional and mental stability, and ...

" sprior record”: is particularly relevant when a minor’s criminal cul-'

pability is at issue. See Fare v. Michael C., 442 U.S.:707, 734,:n.
4 (1979) (POWELL, J., dissenting). No such inquiry occurred in
this case. In every realistic sense Burger not only was a minor
according to law, but clearly his mental capacity was subnormal to
the point where a jury reasonably. could have believed that death
was not an appropriate punishment. Because there is a reasonable
probability that the evidence not presented to the sentencing jury
in this case would have affected its outcome, Burger has demon-
strated prejudice due to counsel’s deficient performance.

Ill
As I conclude that counsel’s performance in this case was defi-
cient, and the deficiency may well have influenced the sentence that
Burger received, I would: vacate. Burger’s ‘death sentence and

remand for resentencing.

The Institute reasons “that civilized societies will not tolerate the spectacle of exe-
cution of children, and this opinion is confirmed by the American experience in
punishing youthful offenders.” Jd., Comment, p. 133. In 1983, the American Bar
Association adopted a resolution stating that the organization “oppo[ses], in prin-

ciple; the imposition of capital punishment on any person for an offense commit-.

ted while that person was under the age of 18.” See ABA Opposes Capital
Punishment for Persons under 18, 69 A.B.A.J. 1925 (1983). ;
International opinion on the issue is reflected in Article 6 of the International
Covenant on Civil and Political Rights and the American Convention on Human
Rights. See United Nations, Human Rights, A Compilation of International
Instruments 9 (1983). See also Weissbrodt, United States Ratification of the
Human Rights Covenants, 63 Minn. L: Rev. 35, 40 (1978). Both prohibit the exe-
cution of individuals under the age of 18 at the time of their crime. The United
States is not a party to either of these treaties, but at least 73 other nations have
signed or ratified the International Covenant: Sée Weissbrodt, supra. All Euro-
pean countries forbid imposition of the death penalty on those under 18 at the

time of their offense. Streib, supra, at 389 (citing Amnesty International, The

Death Penalty (1979)). : .

Cite as 87 C.D.O.S. 2136

JOSEPH G. GRIFFIN, Petitioner v.
WISCONSIN”:

No. 86-5324 a

On Writ of Certiorari to the Supreme Court of Wisconsin (131 Wis.
2d 41, 388 N. W. 2d 535, affirmed.)

Argued April 21, 1987

Decided June 26, 1987

JUSTICE SCALIA delivered the opinion of the Court.

Petitioner Joseph Griffin, who was on probation, had his home
searched by probation officers acting without a warrant. The offi-
. cers found a gun that later served as the basis of Griffin’s conviction
of a state-law weapons offense. We granted certiorari, 479 U.S. —
(1986), to consider whether this search violated the Fourth Amend-
ment.

I

On September 4, 1980, Griffin, who had previously been con-
victed of a felony, was convicted in Wisconsin state court of resist-
ing arrest, disorderly conduct, and obstructing an officer. He was
placed on probation.

Wisconsin law puts probationers in the legal custody of the State
Department of Health and Social Services and renders them
“subject... to... conditions set by the court and rules and regula-
tions established by the department.” Wis. Stat. § 973.10(1) (1985-
1986). One of the Department’s regulations permits any probation
officer to search a probationer’s home without a warrant as long as
his supervisor approves and as long as there are “reasonable
grounds” to believe the presence of contraband—including any
item that the probationer cannot possess under the probation con-
ditions. Wis. Admin. Code HHS §§ 328.21(4), 328.16(1) (1981).

_1HSS § 328 was promulgated in December 1981 and became effective on Janu-
ary 1, 1982. Effective May 1, 1986, HSS § 328.21 was repealed and repromulgated
with somewhat different numbering and without relevant substantive changes.
See Griffin v. State, 131 Wis. 2d 41, 60, n. 7, 388 N. W. 2d 535, 542, n. 7.(1986).
This opinion will cite the old version of § 328.21, which was in effect at the time
of the search.

The rule provides that an officer should consider a variety of factors

in determining whether “reasonable grounds” exist, among which
are information provided by an informant, the reliability and speci-

- ficity of that information, the reliability of the informant (including

whether the informant has any incentive to supply inaccurate infor-
mation), the officer’s own experience with the probationer, and the
“need to verify compliance with rules of supervision and state and
federal law.” HHS § 328.21(7). Another regulation makes it a viola-
tion of the terms of probation to refuse to consent to a home search.
HHS § 328.04(3)(k). And still another forbids a probationer to pos-
sess a firearm without advance approval from a probation officer.
HHS § 328.04(3)(j).

On April 5, 1983, while Griffin was still on probation, Michael
Lew, the supervisor of Griffin’s probation officer, received informa-
tion from a detective on the Beloit Police Department that there
were or might be guns in Griffin’s apartment. Unable to secure the
assistance of Griffin’s own probation officer, Lew, accompanied by

‘another probation officer and three plainclothes policemen, went

to the apartment. When Griffin answered the door, Lew told him
who they were and informed him that they were going to search
his home. During the subsequent search—carried out entirely by
the probation officers under the authority of Wisconsin’s probation
regulation—they found a handgun.

Griffin was charged with possession of a firearm by a convicted
felon, which is itself a felony. Wis Stat. § 941.29(2) (1985-1986).
He moved to suppress the evidence seized during the search. The
trial court denied the motion, concluding that no warrant was nec-
essary and that the seach was reasonable. A jury convicted Griffin
of the firearms violation, and he was sentenced to two years’
imprisonment. The conviction was affirmed by the Wisconsin
Court of Appeals, State v. Griffin, 126 Wis. 2d 183, 376 N. W. 2d

62 (1985).

On further appeal, the Wisconsin Supreme Court also affirmed.
It found denial of the suppression motion proper because proba-
tion diminishes a probationer’s reasonable expectation of privacy
—so that a probation officer may, consistent with the Fourth
Amendment, search a probationer’s home without a warrant, and
with only “reasonable grounds” (not probable cause) to believe that
contraband is present. It held that the “reasonable grounds” stan-
dard of Wisconsin’s search regulation satisfied this “reasonable
grounds” standard of the Federal Constitution, and that the detec-
tive’s tip established “reasonable grounds” within the meaning of
the regulation, since it came from someone who had no reason to

‘supply inaccurate information, specifically identified Griffin, and

suggested a need to verify Griffin’s compliance with state law. State
v. Griffin, 131 Wis. 2d 41, 52-64, 388 N. W. 2d 535, 539-544 (1986).

Il

We think the Wisconsin Supreme Court correctly concluded that
this warrantless search did not violate the Fourth Amendment. To
reach that result, however, we find it unnecessary to embrace a new
principle of law, as the Wisconsin court evidently did, that any
search of a probationer’s home by a probation officer satisfies the
Fourth Amendment as long as the information possessed by the
officer satisfies a federal “reasonable grounds” standard. As his sen-
tence for the commission of a crime, Griffin was committed to the
legal custody of the Wisconsin State Department of Health and

_ Social Services, and thereby made subject to that department’s

rules and regulations. The search of Griffin’s home satisfied the
demands of the Fourth Amendment because it was carried out pur-
suant to a regulation that itself satisfies the Fourth Amendment’s
reasonableness requirement under well established principles.

A
A probationer’s home, like anyone else’s, is protected by the
Fourth Amendment’s requirement that searches be “reasonable.”

‘ Although we usually require that a search be undertaken only pur-
- suant to a warrant (and thus supported by probable cause, as the (
Constitution says warrants must be), see, e.g., Payton v. New York, \230

445 US. 573, 586 (1980), we have permitted exceptions when —
“special needs, beyond the normal need for law enforcement, make
the warrant and probable-cause requirement impracticable.” New

. Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (BLACKMUN, J., con-


's given by the district court;

al

oecificity required under th
ase. They charge that
igstructions consisted of 4
ies that did not provide
sient guidelines to deterrr
reviewing a district cow
e look to see whether ’
whole “sufficiently instraet
-t the jurors understand the
and are not misled.” Pega
2d at 1525. After reviewitig

ney were sufficient to give
r and accurate understand: ~
vages issue in this case. ©

losing Statement

xel and Masco argue that i
tement of Oxford’s counsel |
with prejudicial and improp-
of such quality and quantity
der a new trial. No objec-
to any of the statements
id Masco now claim were
ur eral rule is that.a
is »ssary to bring to the
attention errors in counsel’s
oods v. Burlington North-
768 F.2d 1287, 1292 (11th
curiam), rev'd on other
U.S. 1, 107 S.Ct. 967, 94
). When no objections are
ew the arguments for plain
iding of plain error “‘is sel-
in reviewing argument of
il case.” Jd. Nevertheless,
ests of substantial justice
ve may order a new trial.
City of Birmingham, 906
11th Cir.1990) (per curiam)

| d theory in closing that the

ad specifically prohibited in
tion in limine and referred
hat was not on the parties’
list). The philosophy under-
was well stated in Woods.
imely objection prohibits

“sandbagging” the court

dilent and then, if the re-
.tisfactory, claiming error.
» are a number of good rea-
ille~ 11 counsel may make

__ BURGER, Christepher, <¢/ (37 7-/7G 3

Ss Dean, wh, elec. Ga (Wayme) June 28, 1993

BURGER v. ZANT

1129

Cite as 984 F.2d 1129 (11th Cir. 1993)

a tactical decision not to object to improp-
er argument: (1) an argument that looks
highly improper in a cold record may
strike counsel as being wholly lacking in
effect; (2) because of the ‘chemistry’ of
the courtroom counsel may think that the
improper argument may offend and in
effect backfire; and (8) the improper ar-
gument may open the door to a response
that will be of more value than a sus-
tained objection.

768 F.2d at 1292 (citations omitted).

{23] Drexel and Masco argue that the
errors present in the closing statement of
Oxford’s counsel included statements for
which there was no supporting evidence,
outright misstatements of the evidence, ex-
pressions of counsel’s personal opinions,
comments on counsel’s own involvement
with Oxford and Oxford’s witnesses, ap-
peals to local prejudice against out-of-state
corporations, and improper references to
loss of jobs and taxes.

At a post-trial hearing, the district court
was informed that Drexel and Masco were
arguing on appeal that the verdicts against
them should be overturned because of the
prejudicial] nature of the closing argument
of Oxford’s counsel. The district court
stated, “[t]hat certainly is not the most
inflammatory argument-I ever heard by
any means. It is nowhere close. I think it
was curable. There wasn’t any effort
made to get me to cure it.” R9-21.

We agree with the district court. After
reviewing Drexel’s and Masco’s claims and
the closing argument of Oxford’s counsel,
we find that the arguments do not rise to
the level of plain error. We find support in
our decision in the fact that Drexel and
Masco, while now claiming severe prejudice
because of the argument, made no attempt
to object to the arguments when they were
made.

III. CONCLUSION

The district court properly granted a di-
rected verdict on the breach of contract
claim while allowing the jury to determine
if the date of formation affected damages.
The motions for directed verdict on the
fraudulent suppression and tortious inter-

ference claims were properly rejected. The
jury was erroneously allowed to award pu-
nitive damages on the tortious interference
claim. We, therefore, vacate the award of
punitive damages. There was, however,
sufficient evidence to support the jury’s
award of compensatory damages. Finally,
the closing arguments of Oxford’s counsel
did not amount to plain error.

We AFFIRM in part and VACATE in

Christopher A. BURGER,
Petitioner-Appellant,

v.

Walter D. ZANT, Warden, Georgia
Diagnostic and Classification
Center, Respondent-Appellee.

No. 90-9137.

United States Court of Appeals,
Eleventh Circuit.

Feb. 12, 19938.

Defendant was convicted of murder in
state court and was sentenced to death.
The Georgia Supreme Court, 242 Ga. 28,
247 S.E.2d 884, affirmed conviction but re-
versed death sentence. Defendant was
again sentenced to death, and sentence was
upheld on appeal, 245 Ga. 458, 265 S.E.2d
796. After defendant filed second federal
habeas corpus petition, the United States
District Court for the Southern District of
Georgia, No. CV290-597, B. Avant Eden-
field, Chief Judge, denied the writ, ruling
that all petitioner’s claims were barred un-
der abuse of the writ, successive petition,
and procedural default doctrines. Petition-
er appealed. The Court of Appeals held
that: (1) petitioner’s presentation of claim
that he was denied his constitutional right
to competent mental health evaluation con-

hash


2134 United States Supreme Court

. ©

CALIFORNIA

by informed professional judgment. Counsel could not reasonably
determine whether. presenting character witnesses would pose a
risk of disclosing past criminal behavior by petitioner without first
determining whether there was any such criminal behavior.
Although there is a reference in the record to an incident of shop-
lifting a candy. bar, App. 90-91, and another reference to an auto-
mobile accident, id., at 92-93, there is no indication that counsel
ever determined whether petitioner in fact had a prior criminal
record. The account provided by petitioner’s mother of petitioner’s
hitchhiking to-Florida to be with her after having been thrown out
of his father’s house and having to sell his shoes during the trip to
get food, id., at 92, may well have outweighed the relevance of any
earlier petty theft.

I also find troubling the fact that defense counsel rejected the
assistance of another lawyer (who had known petitioner) merely on
the basis that the lawyer was black. Id., at 57-58. The lawyer offered
to come to Georgia at his own expense to provide what assistance
he could. Jd., at 86. Counsel through his assistance might have “an
ill effect” however, on the trial of petitioner who is white. Counsel
testified that he and the lawyer agreed that because of his race it

was not wise to+have the lawyer testify. Jd., at 58. I question whether
" this is a reasonable professional decision. The adversarial duty of
petitioner’s counsel] was to pursue a means by which to present tes-
timony from such a witness while doing his best to safeguard the
trial from racial prejudice. See, e.g.; Turner v. Murray, 476 U.S. —
(1986). Counsel apparently made no effort to investigate possible
racial bias of petitioner’s jury. Id., at 58-59. Like counsel’s aban-
donment of the psychological investigation because of the sus-
pected unfairness of the examination procedure, his surrender to
the perceived risk of racial discrimination without any effort to
eliminate that risk is inconsistent with his adversarial role and his
responsibility to further the reliability of the court proceeding.

Acceptance of the unpleasant likelihood of racial prejudice in
such a trial, however, does not justify counsel’s failure to accept
assistance from the lawyer in any number of ways, such as investi-
gating petitioner’s childhood background in Indianapolis where the
lawyer had known petitioner. Testimony by petitioner’s mother at
the federal habeas corpus hearing revealed that when the lawyer
was in law school he had worked in a volunteer “big brother” orga-
nization for men who spent time with children who did not have
a father-son relationship or a big brother. Jd, at 85. He was
undoubtedly familiar with some of petitioner’s friends and family
members there. The affidavits submitted at the federal hearing, |
Record 139-157, indicate that many of those persons still reside iri
Indianapolis but were never approached by counsel. In sum, I
reluctantly conclude that counsel fell short in his “duty to make rea-
sonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland v. Washington,
466 U.S., at 691. Application of the Strickland standard to this case
convinces me that further investigation was compelled constitu-
tionally because there was adequate information on which a rea-
sonable professional judgment to limit the investigation could have
been made.** .

Having concluded that the conduct of petitioner’s lawyer in fail-
ing to pursue an investigation into petitioner's psychological prob-
lems or into his family and childhood background was
professionally unreasonable, given the circumstances known to
counsel at the time, I must also address the question whether this
inadequate performance prejudiced petitioner. In my view, if more
information about this adolescent’s psychological problems, trou-
bled childhood, and unfortunate family history had been available,
“there is a reasonable probability that . . . the sentencer — includ-
ing an appellate court, to the extent it independently reweighs the
evidence — would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Strickland
v. Washington, 466 U.S., at 695.

14] agree with the observation in the dissenting opinion in the Court of Appeals
that the defense “strategy” to make the prosecutor “prove his case,” see App. 35,
“is tantamount to no strategy at all; and reliance upon such a strategy in a capital
sentencing proceeding, as an alternative to investigating and presenting available
mitigating evidence, is patently unreasonable.” 753 F.2d, at 946.

I cannot refrain from remarking on the similarities between. the
evidence of petitioner’s childhood and that presented in Eddings
v. Oklahoma, 455 U.S. 104, 107 (1982). Recognizing there the force
of such evidence in a decision whether an individual should be sen-
tenced to die, this Court held that the death sentence had to be
vacated and the case remanded for another sentencing proceeding
where the sentencing authority would consider the mitigating evi-
dence. Id., at 115-117. Because the decision not to present such evi-

dence. to the sentencing authority in petitioner’s case was not

supported by reasonable professional judgments, the reliability of
the capital-sentencing proceeding was undermined. But for defense
counsel’s disinterest in developing any mitigating evidence to per-
mit an informed decision, there is a reasonable possibility that the
outcome of the sentencing hearing would have been different.
Counsel’s conduct “so undermined the proper functioning of the
adversarial process” that the sentencing hearing cannot “be relied
o poe produced a just result.” Strickland v. Washington, 466
~., at "

; Ill

Petitioner was denied the effective assistance of counsel guaran-
teed by the Sixth Amendment due to his trial counsel’s active repre-
sentation of the conflicting interests of his coindictee. Given the
indications of petitioner’s psychological problems and diminished
mental capabilities known to petitioner’s lawyer, counsel’s failure.
to perform an investigation into those problems and into petition-
er’s background denied petitioner effective assistance of counsel at

his capital-sentencing hearing. Petitioner is entitled to a new trial

with conflict-free representation by counsel and to a new capital-.
sentencing hearing with effective assistance of counsel. I respect-
fully dissent from this Court’s judgment denying relief.

JUSTICE POWELL, with whom JUSTICE BRENNAN joins,
dissenting. :

I joint Part II of JUSTICE BLACKMUN’s dissenting opinion.
I would reverse the judgment of the Court of Appeals on the ground
that counsel unreasonably failed to investigate and present to the
sentencing jury available mitigating evidence that would have
raised substantial question whether the sentence of death should
have been imposed on a seriously backward minor. I therefore do
not reach the question of whether there was a-conflict of interest
resulting from the fact that two law partners represented Burger
and Stevens in their separate trials. I write separately to emphasize
those aspects of Burger’s claim that I find particularly troubling.

I

When he committed the crime for which he is now to be exe-
cuted, Burger’s physical age was 17 years. He had an IQ of 82, was
functioning at the level of a 12-year-old, and possibly had suffered
brain damage from beatings when he was younger. See Burger v.
Kemp, 753 F.2d 930, 957 (CA11 1985) (Johnson, J., dissenting).
Testimony by Burger’s mother at the federal habeas corpus hearing
confirmed that his childhood was turbulent and filled with violence.
App. 88-92; see ante, at — . Affidavits from Burger’s childhood
friends also attested to his troubled upbringing. See ante, at — .

Defense counsel knew something of these facts, although not the
details. App. 51-52. Prior to the sentencing hearing, counsel had
interviewed Burger, Burger’s mother, and an attorney who had
befriended Burger and his mother. He had also reviewed psycholo-
gists’ reports provided by Burger’s mother, and spoken to the psy-
chologist who testified as to Burger’s IQ and psychological maturity
at the suppression hearing. 753 F.2d, at 935. After this review,
counsel made the judgment that presenting any evidence at sen-
tencing in addition to Burger’s chronological age and the facts of
his degree of participation in the crimes “would not be to [Burger’s] ©
benefit.” App. 49. See 753 F.2d, at 935.’

1Counsel testified: © -
“I felt the way to try that case was to take the evidence that was there and try
to minimize Mr. Burger’s participation in the crime. . . .I felt that case should be
been tried on the facts and make the District Attorney — I say make him, use
whatever rules of evidence to exclude those harmful facts, and then use the —
my opinion in representing Burger was then use those facts to show that he was
just there and was not entitled to be treated in the same manner as the person
who was — who was the main actor in the thing. That he was a secondary, he
was in a secondary position. Since there were two punishments in that particular
situation, that he should be given the lesser of the two. I think that’s the way that
case should have been tried, and that’s the way I tried it. And, I don’t know of.
— today, if I had to go back and try it again I would do it in the same manner,
—lI say in the same manner, much the same manner, using the same thing and
hope I got a different jury. That’s all. And, that’s it.” App. 63-64. ;


56 SOUTHEASTERN 29,.

BULLARD, John, white, hanged at Marietta, Georgia, on March 1, 1907.

Article by W. C. Jones,. Staff Correspondent of the JOURNAL

"Marietta, Ga., Mar. 1,.1907 - 'I feel = like I'm going home = to rest. = Get confidemce
in God.' With these, words, broken but distinct, struggling through the death pallor of
his tired lips, John Bullard, convicted of having murdered his 17-year-old daughter,

paid the law its terrible debt this morning at 11:26. The execution took place in

the Marieeta jail. Bullard was dead 11 minutes after his body dropped through the
gallows trape Contrary to the expectabion of physicians, the doomed man's strength
rallied at the, final moment as if by some hidden micacle of blood and nerve,

Though his lungs rattled like a muffled drum as he walked from cell to scaffold and

the bones of his skeleton-like hands swayed a time or two, he never faltered on the
march, From some mysterious source of his being, whether, moral or physical, a sudden supply
of strength surged through him, He even expressed a preference of taste in the manner of
his execution, 'Don't,' he whispered to Sheriff W. Je Frey, as the black cap was
being pulled over his face, ‘Don't. Idd rather not have that,' .

"For more than an hour before he was led to the death trap, Bullard's. conscience was
literally gruelled by the attenidning ministers, Rave Dre C. E. We Dobbs, and Dr. Wl.

Le Pierce of Marietta, No prosecuting attorney ever probed more searchingly into a
witness' memory than did these preachers, as they questioned and pleaded with the
condemned man to obtain a confession, If confession there was buried somewhere in

his heart. A scientist never worked with more persistence nor a philosopher whth

more ardor to find the truth than the ministers did, as, they probed and prayed and
besought. Both the threats and the mercy of the Bible were held up to him, But to

both aliké he whispered back brokenly 'I've said my say. I killed my little girl
accidentally,' While the preachers labored within the cell as, Bullard lay huddled

upon his cot, his face half-covered, withthe dingy corner of an old blanket that

looked as if it might have been red when new, a crazy negro boy in an opposite cell

was thrumming at random on a greasy banjo, making up words as he went to a wild tune

that told of the crime he, too, had commited the crime of murder. All night long,

say the jail officials, XMA&XASMANXSAXKHSXXE this demented boy sang his rhymes of murder, while
Bullard, 10 feet away, coughed and coughed and rose now and then to see if day was breaking.
Crowded into a murky corner on the ground floor of the jail, some 18 or 20 persons,

most of them officers of the law, fell back to make a passage way when it was announeed at
11320 o'clock that all was ready for the hanging. One man of the group, a hale,
red=cheeked fellow, carrying a stout walking stick, nudged his neighbor and said with

a touch of pride in his voice:'See that rope?' - he was pointing a fat forefinger

toward the gallows. 'Well, I tied the noose in it this morning,' Inside his cell

the crazy negro kept up the fierce thrumming on his banjo, 'They took me up to the
police door./A place I never had been before,/I never will see my ma no more,' These

are the words the boy sang as Sheriff Frege leaned over Bullard's cot and said, 'John, we
are ready.' The sheriff's voice was almost like a sob, Three men among the spectatoors
called to the doorkeeper downstairs: 'Hold on there; don't look that door 'till we get out,.'
Those who remained took out their watches to catch the first glimpse of the prisoner

as he emerged from his cell door into the jail .corridor,

"A minute passed and his head appeared, then his “face, hollow and pale. He was pre-
ceded by the sheriff, and at his either side walked the preachers, their lips moving

in prayer. That morning after breakfast the doomed man had been freshly shaven and
dressed in a new suit of black. He was about the sheriff's height, both of them being
tall men, but in all features of his physical make-up he presented a grim contrast to

the robust official, The blood seemed struggling toward his eyes like blighted sap
through a bree struck with lightning. Had he been laid upon a stretcher and his sunken
eyes closed, he would have been even then taken for a corpse. 'Now, he's going to
confess, Listen}! said a thick lipped man with red whiskers, And the little cfowd
yistened as they leaned forward, But Bullard never spoke. |

"Tf déath,-as the old writers feigned, were a corporeal personage and had in

reality been crouching by the window where the death noose dangled, and had arisénat

that moment and rattled open his black wings and spread them across the jail corridor,

a heavker shadow could not have: fallen across the damp plaster of the walls or upon

the faces of those watching. All night long a rain had been dripping from the jail

gutters. Now it had condensed itself into a fog that blanketed the windows and almost made
it necessary for those present to strike matches to see how many seconds more Bulaard had


“prepare his case. Despite this, he made a hard fight for his client, and left nothing

to live. As a matter of fact, there were jti#®? fifty seconds remaining... Once again the
preachers pleaded with him as he stood upon the gallows trap, curiously eyeing the rope
that was sbon to bind his neck, 'I've had my say,! he persisted. ‘I've told the truth,'
Still the ministers delved for any secret that he might be hoarding... 'Call. up. those
newspaper men' he managed to -say through his paraxosymm of coughing... There was a. hustle
in the crowd, Maybe now he's going to give us something to talk. about, they thought.
among themselves, But when the reporters were withing hearing. distance he looked
straight ahead and in a tone soften than any he has yet been heard to utter, said tenderly
as if talking to his little girl whom he killed, 'I fell kike I'm going home to rest,
Get confidence in God,' Ten seconds of the world's light remained for the man on the
trape The sheriff's attendant came forward and held up a black cap. '‘'Don't,! he
pleaded, But the cap is a part of the law. The cap was pulled over the prisoner's head.
He had seen his last of the sunlight. The strings of banjo and snatches of a coon song
echoed in from a neighboring cell, 'This is the most trying ordeal of my life, .
Bullard,' said the sheriff, as he bent down to spring the trap. Most of the spectators
turned their heads away. 'God have mercy. on your soul,' said the sheriff. ‘John Bullard
was dead, Far across the fields of Cobb County, in a country house near Powder

Springs, an old woman, John Bullard's mother, in her 80th year, was sitting that moment
by a log fireplace. She could scarcely see. for the film of years over her eyes. She
could scarcely talk had she been splten to, But her face wore a look of contentment
through hts wrinkles say those who were with her. .No one had told her that her boy

was being KAMAXKK hanged for the murder of her grandchild, She did not even know he

was in jail, A pathetic feature was that the murderer's mother, who lives at Powder
Springs with her son, Re Le Bullard...did not know anything about the execution, It

was stated here today that Bullard's father had died in an insane asylum and that his
three uncles were now inmates of one. Governor Terrell's signature of the death warrant
today,tthe decision of Dr. J. B. Baird and Dr. H. V. Reynolds that Bullard was, in as
good physical shape as he was a few days ago, and the refusal of Judge Gober to

question the constituionality of an act allowing the governor to name a lunac y board,
knocked the last props from Bullard, é

"Judge George F, Gober of the Cobb County Superior Court, Thursday refused to consider

a petition attacking the constituionality of the act of 1903, which empowers the
governor to appoint a commission to inquire into the sanity of prisoners, The petition
was filed by E. Herbert Clay, Bullard's counsel. Mr. Clay contended that the act was un=
constitutional in that it did not allow prisoners the bight to be tried by jurye
Judge Gober refused to consésder the appeal, and wrote acorss the petition: 'This

matter must come to an end,' Had Judge Gober acted upon the petition, even to deny

it, Attorney Clay could have appealed from the Covb County to the supreme court, and

so Bullard would have gained a respite pending the final decision, This hope gone,

the death watch was put over Bullard Thursday night. Deputy Sheriff E, T. Sheftall
being in charge of it. With the condemned man was Dre CeE. W. Dobbs, pastor of the
Baptist Church of Marietta, who offered prayer for Bullard, Attorney Clay was

appointed by Judge Gober to defend Bullard, and had about 2 hours ‘time in which to

undone to save him,

"It was on the morning of September 2), last, at 1 o'clock, that John Bullakd, killed his
daughter, Ruby, a girl of 18, There were no eye-witnesses to the scene, and Bullard
himself announced the murder,: He Lived then about 2 miles north of Powder Springs.

He came immediately to Powder Springs, and sought out Dr. Vaughan, To him Bullard
confessed that he had killed his daughter. He shot her 6 times he said, He added that
he had done his duty, and that no one else should ever knownwhat led him to commit
the crime. Dr, Vaughan did not'believe the man at first, although Bullard reiterated
his statement, and finally, that there might be no doubt about it, the doctor followed
the murderer to the latter's house. There, sure enough, they found the dead body of
the girl, It lay on the floor, There were three bullet. holes in her head, and three
others in different parts of her-body, She had been dead apparently three-quarters
of anyhour., The doctor reported the murder and Bullard was placed under arrest. Be-
cause of threats of lynching, Bullard was hurried to the jail at Marietta, Later he
was tried in the superior court and the jury returned a verdict of guilty, and the
judge sentenced him to be hanged. Suffering from tubercu&isis, Bullard grew worse

under jail confinement, and his friends, and certain citizens of Cobb County, who be- 5
lieved that this disease would kill him auick enough, laid a petition for clemency. .

BULLARD, John = Hanged Marietta, Gae, 3-1-1907 = Continued.

before the board of prison commissioners. The latter refused to recommend a pardon,

and the governor refusing to grant a respite, the law took its course. A few days
before the date of his execution, Bullard gave out an interview in which he declared
that the shooting of his daughter was accidental. He said that on the morning of
September 2), just MRR#K after he and the girl had finished breakfast, he took his
pistol from under his pillow to put it away. Doing so, he was seized with a paroxysm of
coughing. ‘4is hands in some way touched the trigger, and the revolver discharged.

The cough continued, he said, and then he left the house. On his way out he saw his
daughter standing at the door. When he returned, she lay on the floor, her face covered
with blood, Bullard declared that he didn't have strength enough to tell the court
this, but that if he had, he would have been saved. He added that the Lord had told
him 8 years ago that his daughter would be taken from him, Bulla rd came of a good
family. One of his brothers, Malachi Bullard, is clerk of court in Haralson County

and Robert Bubbaed, another brother, lives in Powder Springs. Other brothers live

in the Indian Territory." JOURNAL, Atlanta, Gae, Mar. 1, 1907 (1:1&2 = Photo of him.)


BUCK, Sentenced to be hanged in Carroll County, Ga., on June 21, 1850
"Carroll Superior Court, April term, 1850, Letter from Yarrolton a

April 28, 1850. 'The State vs. Buck, a negra man, slave of Jno M,

Green of Randolph County, Ga., about 30 years old, for an assault and
battery with intent to kill, on the person of “arvey Tiller, a white man =
a native of Virginia - aged about 30; who had lived in this county

but a few months previous, and up to the above circumstances he bore

the character of being a quiet, steady and inoffensive man, as the case
has proved, .
'The circumstances of the case are these, as were proved on the trial,

Mr, Green had purchased the boy Buck from a drover. Shortly after, the
boy absconded and made his way to this place, on the road to Tennessee
where he had a wife, Here he was taken in Feburary last and lodged in
jail, and the owner written to. In the meantime the boy complained to

Mr, Tiller of the jail confinement, and persuaded him, Mr, T., to take

him out, stating that he would be rather put to any kind of labor than

be kept in jail. Mr, T. being a carpenter and wishing assistance, did
take him out, and employed said prisoner two days in splitting raiks,

On the third day, while engaged in the same business, and Mr, T, being

not more than three or four feet from him, and whilst stooping down, he
received a blow froms aid prisoner on the right side of the head just
above the ear with a large wood maul, which staved in the skull. Mr, Te
then lying lifeleass across’ the log, the boy took from his pocket his purse,
containing money and papers, also a pen knife, which he stuck into Mr,

T's thigh twice, and then absconded, The first night he stole a horse and
rode 50 miles; the horse then giving out, he walked some three miles and
stole another, when he made his way to Tennessee, where he was tak#n and
lodged in jail, The sheriff of this county being apprised of the fact, went
after and brought him back in chains last Sunday. I saw Mr, T, atmcourt
who had to be led there. They physicians testified that they had fonm
taken several large pieces of the skull bone from the head, leaving the b
brains entirely exposed to view, Also that the skull was cracked in
several placese 1+ is the general impression here that the man cannot
survive it after the warm weather sets in, The Doctors state that he lay
insensible for mahy days, and that in 99 cases in a 100 the patient would
die,

'The boy, when on trial, was ably defended, and the court gave him all

the privileges for such defence was was in its power, and after occupying
a day and a half, the jury returned a verdict of guilty of charges alleged
in the indictment,

"Yesterday he was placed at the bar for sentence (the Court house being
much crowded, as the case caused a considerable excitement) Judge Hill,
presiding, who, after lecturing, not only the prisoner, but all present,
with a beautiful and chaste admonition, proceeded to pass sentence of
death, which was that Buck, the property of Jno, M, Green, should be taken
hence to the jail of the county and kept in close confinement until Friday,
HKE June 21, 1850, when he should be vrought forth and within a mike of
said jail he was to be hung by the neck on a common gibbet or gallogs
until he be dead, dead; and may God have mercy on his soul. |
'The negro did not seem to be the least affected during the whole trial,
but when he received this sentence he held down his head and shed tears.
'He, previous to the trial, confessed the crime, but he was allowed a

fair and jmpartial trial.'" AUGUSTA CONSTITUIIONALIST, Augusta, BB Ga.,
May 5, 1850 (5-5) : | )

The paper states that this was first law they knew of passed under a

act of last session of legiskgture giving Superior Courts jurisdicition

in cases of capital offenses by negroes,

Se era

1134

McCleskey, 499 U.S. at ——, 111 S.Ct. at
1470, 113 L.Ed.2d at 544 (citations omitted).
Additionally, it stated:
The cause and prejudice analysis we have
adopted for cases of procedural default
applies to an abuse of the writ inquiry in
the following manner. When a prisoner
files a second or subsequent application,
the government bears the burden of
pleading abuse of the writ. The govern-
ment satisfies this burden if with clarity
and particularity it notes petitioner’s pri-
or writ history, identifies the claims that
appear for the first time, and alleges that
petitioner has abused the writ. The bur-
den to disprove abuse then becomes peti-
tioner’s. To excuse this failure to raise
the claim earlier, he must show cause for
failing to raise it and prejudice therefrom
as those concepts have been defined in
our procedural default decisions. The
petitioner’s opportunity to meet the bur-
- den of cause and prejudice will not in-
clude an evidentiary hearing if the dis-
trict court determines as a matter of law
that petitioner cannot satisfy the stan-
dard. If petitioner cannot show cause,
the failure to raise the claim in an earlier
petition may nonetheless be excused if he
or she can show that a fundamental mis-
carriage of justice will result from a fail-
ure to entertain the claim. Application
of the cause and prejudice standard in
the abuse of the writ context does not
mitigate the force of Teague v. Lane,
supra, [489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989) ] which prohibits with
certain exceptions the retroactive applica-
tion of new law to claims raised in feder-
al habeas.
McCleskey, 499 U.S. at ——, 111 S.Ct. at
1470, 113 L.Ed.2d at 545. Thus, under
abuse of the writ or procedural bar, Burger
must show cause and prejudice to over-
come the procedural barrier.

Ake Claim

{1] Burger argues that his 1977 mental
health examination, which his independent-

4. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087,
84 L.Ed.2d 53 (1985) held that when a defen-
dant’s sanity is an important factor, the state
must provide “a competent psychiatrist who will

984 FEDERAL REPORTER, 2d SERIES

ly retained psychiatrist, Dr. Joseph
O’Haire, conducted, was inadequate and
unreliable. Burger alleges that Dr.
O’Haire was not licensed or qualified to
conduct an appropriate medical examina-
tion and misrepresented his credentials.
He further asserts that Dr. O’Haire’s socia]
and medical history were undiscovered or
undeveloped, that Dr. O’Haire based his
1977 mental health examination on errone-
ous information, incorrect data interpreta-
tions, and abnormal diagnostic studies.

Burger also argues that a proper exami-
nation would have revealed that he was
severely mentally ill and mentally impaired.
He further argues that abuse of the writ
does not apply if a petitioner relies upon a
new rule of law. See, eg., Fleming v.
Kemp, 837 F.2d 940 (11th Cir.1988). Thus,
Burger claims that at the filing of his first
petition in 1980, Ake v. Oklahoma, 470
U.S, 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985) was unforeseeable. Accordingly, a
reasonably competent attorney could not
have predicted that Ake would provide a
defendant with a right to a psychiatrist.‘
The state, however, correctly asserts that
the presentation of this issue in Burger's
second federal habeas corpus petition con-
stitutes an abuse of the writ.

It is undisputed that Burger did not in-
clude this claim in his first federal habeas
corpus petition. Thus, the new claim can
only be heard on the merits if Burger can
show cause which “ ‘requires a showing of
some external impediment preventing coun-
sel from constructing or raising a claim.’ ”
McCleskey, 499 U.S. at ——, 111 S.Ct. at
1472, 113 L.Ed.2d at 547 (quoting Murray
v. Carrier, 477 U.S. 478, 492, 106 S.Ct.
2639, 2647, 91 L.Ed.2d 397 (1986)). Burger
has failed to demonstrate cause for omit-
ting the Axe claim in his first federal peti-
tion. Additionally, his ‘assertion that he
included it in his amendment to his state
habeas corpus court petition does not con-
stitute cause because the state court dis-
missed the amendment as untimely. More-

conduct an appropriate examination, and assist
in evaluation, preparation, and presentation of
the defense.” Ake, 470 U.S. at 83, 105 S.Ct. at
1096.

UNITE!

Cite ae

over, Burger has not argued that |
ernment in any way/ precluded hi
submitting the amendment within t

er’s

US.
(1989) requires that we apply Ake
tively. Ake held that when a def«
sanity is an important factor, t’

' f utory time period.®
: Furthermore, we need not addres
4

assertion that Teague v. La
288, 109 S.Ct. 1060, 103 L.Ed

+ must provide “a competent psy
§! = who will conduct an appropriate
3 tion, and assist in evaluation, pret
F and presentation of the defense.”
U.S. at 88, 105 S.Ct. at 1096. T
provided Burger with the psychi

his
the

choice. Thus, the state comp
Ake standard. Thus, whether

new rule under Teague does not a
outcome on this claim.

[2] Additionally,
(1982) would lead a state habeas

0.C,G,A.;. §

court to find this claim procedu:

> faulted because Burger did not r

his first or second state habeas cor

© tions. Accordingly, the procedura

and abuse of the writ doctrines se

procedural bar and preclude habes
relief. .

*{8,4] Alternatively, Burger ar:

=” if his claims constitute an abus
@ writ, the ends of justice require
= ation. Moreover, in his view, a ¢
always find that the ends of justic
it to reach a claim on its merits. <

v.

Newsome, 881 F.2d 949, 955 r

4 q Cir.1989). We reject Burger’s ¢

_ §.
og

the ends of justice require that w
the merits of his claims. The en:
tice allow a court to excuse state
- al defaults, abuses of the writ, ar
© sive claims when consideration is

' Burger also claims that his counse'

ence mandates this claim’s consider

agree with the district court that “
sons do not persuade the court. |
post-conviction counsel that has beer
law several years. Further, not only
not precluded from ‘hurrying’ collate
but the state actually has a great an:
interest in ‘prompt finality of com
execution of sentence.’ Presnell v.
F.2d 1567, 1573 (11th Cir.1988).”


adueted, was inadequ;

+ not licensed or qualifies

wi correctly asserts that
.0n of this issue in Burger’é

3K 5

pey vhiatrist, Dr. J 0:

Burger, alleges that ;

appropriate medical. examina.
isrepresented his . credent
sgerts that Dr. O’ Haire’ ;
history were undiscoy

that Dr. O’Haire ba:
health examination on et
ion, incorrect data intern
normal diagnostic studies, —

o argues that a proper.e

have revealed. that -he wai
ally ill and mentally impaired
rgues that abuse of the.
y if a petitioner relies upon ¢
law. See, ¢.9., Fleming ,
2d 940 (11th Cir.1988). ah aM
» that at the filing of his firs
980, Ake v. Oklahoma, 4

S.Ct. 1087, 84 L.Ed.2d "bs
aforeseeable. Accordingly, 'a
ompetent attorney could’ n
d that Ake would providé's
h~"ght to a’ psyehiatrist#

i habeas corpus petition
suse of, the writ.

uted that Burger. did. not, in-
m in_his first federal. habeas
1. Thus, the new claim.can
on the merits if Burger can
nich.“ ‘requires a. showing. of

con-

_ impediment preventing co’

tucting or raising a claim,’’
9 US. at —,, 111 S.Ct, at
12d at 547 (quoting Murray
'7 US. 478, 492, 106 S.Ct.
_ L.Ed.2d 397 (1986)). Burger
demonstrate cause for omit-
aim in his first federal peti-
aally, his ‘assertion that he
his amendment to his state
— court petition does not con-
—vecause the state court dis-
_endment as untimely. More-

wopriate examination, and assist
reparation, and presentation of
Ake, 470 U.S. at 83, 105 S.Ct. at

over, Burger has not argued that the gov-
ernment in any way/precluded him from
submitting the amendment within the stat-
utory time period.5

Furthermore, we need not address Burg-
er’s assertion that Teague v. Lane, 489
U.S. 288, 109 S.Ct. 1060, 108 L.Ed.2d 334
(1989) requires that we apply Ake retroac-
tively. Ake held that when a defendant’s
sanity is an important factor, the state
must provide “a competent psychiatrist
who will conduct an appropriate examina-
tion, and assist in evaluation, preparation,
and presentation of the defense.” Ake, 470
U.S. at 83, 105 S.Ct. at 1096: The state
provided Burger with the psychiatrist of
his choice. Thus, the state complied with
the Ake standard.” Thus, whether Ake is a
new rule under Teague does not affect the
outcome on this claim.

{2] Additionally, 0.C.G.A. § 9-14-51
(1982) would lead a state habeas corpus
court to find this claim procedurally de-
faulted. because Burger did not raise it in
his first or second state habeas corpus peti-
tions. Accordingly, the procedural default
and abuse of the writ doctrines serve as a
procedural bar and preclude habeas corpus
relief. ‘

[8,4] Alternatively, Burger argues that
if his claims constitute an abuse of the
writ, the ends of justice require consider-
ation. Moreover, in his view, a court may
always find that the ends of justice require
it to reach a claim on its merits. See Gunn
v. Newsome, 881 F.2d 949, 955 n. 6 (11th
Cir.1989). We reject Burger’s claim that
the ends of justice require that we address
the merits of his claims. The ends of jus-
tice allow a court to excuse state procedur-
al defaults, abuses of the writ, and succes-
sive claims when consideration is necessary

5. Burger also claims that his counsel’s inexperi-
ence mandates this claim's consideration. We
agree with the district court that “[tJhese rea-
sons do not persuade the court. No right to
post-conviction counsel that has been practicing
law several years. Further, not only is the state
not precluded from ‘hurrying’ collateral review,
but the state actually has a great and legitimate
interest in ‘prompt finality of conviction and
execution of sentence.’ Presnell v. Kemp, 835
F.2d 1567, 1573 (11th Cir.1988).”

UNITED STATES vy.
Cite as 984 F.2d 1135 (11th Cir. 1993) /

MORRILL 1135

to prevent a fundamental miscarriage of
justice, and when the petitioner has made a
colorable showing of factual innocence.
See McCleskey, 499 U.S. at —, 111 S.Ct.
at 1471. None of these factors are present
in this case, The state supplied Burger
with the psychiatrist that he chose. No
relief based on this issue is warranted.

The district court properly found the oth-

er claims to be barred because of procedur-
al default or successive and abusive peti-

tion rules. Likewise, the ends of justice -

exception does not require consideration of
the other claims. McCleskey v. Zant, 499
U.S. ——, 111 S.Ct. 1454, 118 L.Ed.2d 517
(1991).

For the foregoing reasons, we affirm the
district court.

AFFIRMED.

‘° Erm 7 .

UNITED STATES of America,
Plaintiff—Appellee,

v.

Alfred Octave MORRILL, Jr.,
Defendant-Appellant.

_ No. 91-8386.

United States Court of Appeals,
Eleventh Circuit.

Feb. 12, 1993.

H. Bradford Morris, Jr., (Court appoint-
ed), Gainesville, GA, for defendant-appel-
lant.

6. Burger gives three reasons which demonstrate
how the ends of justice require this court to
address appellant's due process Ake claim on
the merits: (1) the totality of the circumstances
under which the first petition was filed; (2) Ake
constitutes an intervening change in the law;
and (3) the state’s conduct in addressing Burg-
er's post-conviction proceedings.


32 Ga. 78 SOUTH EASTERN REPORTER, 2d SERIES

be signed and sealed, and declared by the butcher knife did not violate constitutional
grantor in the presence of the attesting wit- . provisions giving Superior Court exclusive
nesses, to be delivered as his deed; it is an jurisdiction in criminal cases. where of-
effectual delivery, provided there is nothing fender is subjected to loss of life, or con-
to qualify the delivery, notwithstanding the finement in penitentiary, and granting per-
grantee was not present, nor any person in son charged with offense against laws of
his behalf, and the deed remained under the state, public and speedy trial by impartial
control of the grantor’—relied on by the jury, in view of statute denominating
plaintiffs—which was subsequently quoted action against child in Juvenile Court as
_with approval in Holly v. Whitehurst, 164 civil, rather than criminal, action. :

Ga. 265, 270-271, 138 S.E. 231, was express- |

ly disapproved in Stinson v. Daniel, 193 Ga. Affirmed.

844, 849,850, 20 S.E.2d 257, supra, as not fey TEAL a
being in harmony with other rulings of this !. Infants 16.4 “
court. a : “! Constitutional provisions giving supe-

bees ae , ; rior court exclusive jurisdiction in criminal
[8] In our opinion, the evidence was not cases where offender is subjected to loss of
only insufficient to authorize a verdict in iife or confinement in penitentiary ane
favor of the plaintiffs on the question of de- granting every person charged with offense
livery, but demanded a finding that there against laws of state right to speedy and
had not been a delivery ‘of the deed. public trial by impartial jury have no ap-
plication in proceeding under Juvenile
Court Law denominating actions taken
against child under provision of that law
trial. as civil action rather than criminal. Laws
1951, p. 302, § 19; Const. art. 1, § 1, par. 5;

Judgment reversed. art. 6, § 4, par. 1.

In view of the above ruling, it becomes
unnecessary to pass upon the assignments of
error in the amended motion for a new

All the Justices concur. ;
‘2. Infants €=16.4

Judgment of juvenile court commit-
ting to State Training School for Colored
Girls a female child under 17 years of age
who had violated state law by stabbing
another with butcher knife did not violate
210 Ga. 87 constitutional provisions giving superior

HAMPTON v. STEVENSON. court exclusive jurisdiction in criminal

cases where offender is subjected to loss of

No. 18344. life or confinement in penitentiary and

granting person charged with offense
against laws of state public and speedy
trial by impartial jury. Laws 1951, p. 302,

Habeas corpus proceeding to obtain § 19; ae art. 1, § 1, par. 5; art. 6, § 4,

release of minor child from confinement in
State Training School. The Superior '
Court, Bibb County, dismissed the proceed- Kenneth L. Leake, Macon, for plaintiff
ing, and petitioner brought error. The jn error.

Supreme Court, Hawkins, J., held that
judgment of Juvenile Court committing
to State Training School for Colored Girls
female child under 17 years of age who had man L, Minchew, Waycross,
violated state law by stabbing another with in error.

o §& KEY NUMBER SYSTEM

anms

Supreme Court of Georgia.
Oct. 13, 1953.

—_———————

Eugene Cook, Atty. Gen., Robert L. Hall,
Asst. Atty. Gen., Lamar W. Sizemore, Del-
for defendant

ITH 94 bh? 4 BURGESS v. STA + a ;
Cite as 78 S.B.2d “ag 3 e sing ge

Syll a : ; :
yllabus Opinion’ by the Court. i) intendent of the Georgia Training’ School

HAWKINS, Justice. Lee ee
: ; udgm
_. [1,2] . Under section. 19 of the Juvenile ' a ee
Court Act of 1951, Ga. L. 1951, pp. 291, 302, *
and the decisions of this court deaticar seth
previous acts containing similar provisions
no action taken against a child under the
Provisions of that act shall be denominated
asa criminal action nor an. adjudication.as
a conviction. of a criminal offense, but pro- °““’'
ceedings . thereunder are ; civil and not
criminal, .: Therefore, article: 6, section 4, BURGESS v. STA _
paragraph, 1, of the Constitution of 1945 5; =
Code Ann. § 2-3901, that “The Superior - wow
Courts, aba have exclusive jurisdiction Supreme Court of Georgia,

*.in, criminal cases where, the 5 .
offender, is. subjected: to loss of life, or -" rant !
conliemeet in the penitentiary,” and article - Defendant was convicted of mirdér
Bi ses fF 1. paragraph 5 of the Consti- and after judgment rendered by the Sinpe-
sation of 19 , = Ann. § 2-105, that tior Court, Chatham County, he brought er-
wry per ai he es an offense eae oes Supreme Court, Duckworth, C.
a ae 3 saenuae is Sith $ ne ou that the evidence sustained the con-
impartial jury”, have no application to a
Proceeding under the Juvenile Court Act Neeet
supra; and that act and the j
the Juvenile Court hedges omni rae OM
to the Georgia Training School for Colored
Girls a female child: under 17 years of age
who has violated a State law by stabbing
beri with a butcher knife are not invalid
al dhs named of the foregoing In homicide prosecution, preface “the
Brorisions.p pe conetution. Williams Supremé Court says”, used in court’s
SA aia pa rye 1, 94 S.E. 564; charge, was equivalent to “the law says”
hi ite : ent0) ips eu 6 se OO ae ries —_ prejudicial to the
ase ' ; : . E. , notwithstanding his complai
he mena Wood, 188 Ga. 463, 4 S.E. such Preface had fi fiuended ieee
‘ ; merican Jurisprudence, 785, § bringing in a verdict of guilty to refer to

7 the Supreme Court.

All. the Justices concur,

G=5)

E Murder conviction was sustained by
evidence.

2. Criminal Law €=1172(1)

2. The question of whether the Juveni
eet of 1951 seeks to seve te 7 eee ret Paci
serio cours ae jurisdiction to try of- Fa n pomicide prosecution, charge on de-
fenders of re aed therein referred to for : << accidental shooting was sufficient
ci | wittcd by thens Is hot’ itivolved s against contentions that it invaded pro-
er the facts of this case and will not be Mares Of pany apd en nteare epiae ot ie)
Passed upon. Judge.

3. soy: :
The trial judge did not err in dismiss- 4 Criminal Law <=814(2)

ing the habeas corr i
e hi pus proceeding and in re i |
medi , - It is not error to fail t
pon ale sen sought to be released issue shown alone by ee in <
stody of the respondent, the Super- 2 ee
78 S.E.2d—3 i o

"ESET “TT ZOqUOACN (WeUZEYD) ETSA0eD peqnoozyoeTe ‘9¢ *yoeTq SeTTITM *sSmpUund

SF Ae ae ape RS cl 28 GS


ee

“34. Ga. 78 SOUTH EASTERN REPORTER, 2d SERIES

5. Criminal Law €=776(3)

Defendant in homicide prosecution did
not put his good character in evidence by
telling jury in his statement that he had

worked for particular newspaper for many . ; EEECS
‘ly state the law that accidental shooting 1s

‘not an available defense if the jury con-

years.

6. Homicide €=294(!)

Ga. 317, 195 S.E. 172; Plummer v. State,
200 Ga. 641, 38 S.E.2d 411.

[3] 3. Two special grounds complain
of excerpts from the charge which correct-

cludes that a gun was used by the accused

‘to shoot the deceased, that it went off not

In homicide prosecution, instruction on
insanity was not subject to claimed in-
firmity of requiring defendant to prove
insanity beyond a reasonable doubt.

by accident but by the defendant’s pulling
the trigger, intending thereby to shoot the
deceased, and that for accident to be a de-
fense it must be shown to the satisfaction

of the jury that there was no evil design, no

——— ee

James N. Rahal, Savannah, for plaintiff
in error. a

Andrew J. Ryan, Sol. Gen., Sylvan A.
Garfunkel, Thomas M. Johnson, Jr., Assts.
-Sol. Gen., Savannah, Eugene Cook, Atty.
-Gen., Rubye G. Jackson, Atlanta, for de-
fendant in error. : att

elt 7

Syllabus Opinion by the Court.

DUCKWORTH, Chief Justice.

[1]. 1. Upon the trial under the in-
dictment for murder, there was testimony
of an eyewitness proving the killing in the
manner alleged in the indictment. The
verdict of guilty is therefore authorized by
the evidence and the general grounds of
the motion for a new trial are without

merit.

[2] 2. Two of the amended grounds
complain of excerpts from the charge
wherein it was stated that “the Supreme
Court says that if a person can distinguish
between right and wrong, he is responsi
ble.” and “The Supreme Court says that the
use of a weapon likely to produce death
raises the presumption of malice.” The
grounds of these complaints are that it
was highly prejudicial and influenced the
jury in bringing in a verdict of guilty to
refer to the Supreme Court. The charges
were the equivalent of saying “the law
says” and could not have been prejudicial
to the accused. See Rozier v. State, 185

evil intent, and no deliberate intention to
shoot the deceased. The complaint is that
these excerpts invaded the province of the
jury and expressed opinions of the judge.
Obviously, there is no merit in cither
ground, since the court correctly charged
the law on the defense of accident. See
Jones v. State, 207 Ga. 379, 62 S.E.2d 187.

[4,5] 4. By telling the jury in his
statement that ‘he had worked for the
Savannah Morning News for many years,
‘the defendant did not thereby put his good
character in evidence, and for this reason
as well as the rule of law that states that
it is not error to fail to charge on an issue
shown alone by the defendant’s statcment,
‘the special ground complaining because of
the failure to charge on character, since
‘the record shows’ such statement to have
been that of the accused, is without merit.
‘Nor was there a request for such a charge
here’ Ellison’v. State, 137 Ga. 193(7), 73
S.E. 255; Wheat v. Stae, 187 Ga. 480(5),
‘1 S.E.2d 1. ;

[6] 5. An excerpt from the charge
which states that, for the accused to be ac-
quitted because of insanity, unless the
State’s evidence shows he can not distin-

guish between right and wrong, the burden |

is upon the accused so to prove, is not sub-
ject to the complaints that the defendant
need not prove it beyond a reasonable
doubt, but only to the reasonable satisfac-
tion of the jury, and the charge required
the defendant to prove insanity beyond a
reasonable doubt. The charge is not sub-

Eacd LS © SCOTT vy. STATE —t ° ay
Cite as 78 S.H.2d 35 eae

ject to either the construction placed upon back to his wife was not such newly dis-

it or.the criticism of this special ground.

6. The foregoing rulings cover every

covered evidence as would support motion
for new trial of homicide prosecution, -

ground of the amended motion for new 4 Criminal Law ¢=564(1)

trial, and no error appearing, it was not

error to overrule the same.
_ Judgment affirmed.

All the Justices concur.

210 Ga. 137
ci" SCOTT v. STATE.
No. 18356.

Supreme Court of Georgia.

Oct. 14, 1953.

Homicide prosecution. . The Superior
Court, Glynn County, entered judgment of
conviction, and defendant brought error.
The Supreme Court, Wyatt, J., held, inter
alia, that the charge was not objectionable
as indicating to jury that judge felt that de-
fendant should be found guilty.

Affirmed.

1. Homicide €=309(3)

If, as the defendant stated, he and
deceased were struggling over possession of
shotgun and he tore it away from deceased
and she fell on sofa and just as she reached
the sofa, gun went off without any intention
on defendant’s part to shoot it, and gun,
charge hit deceased, such facts tended to
show that fatal injury was inflicted as re-
sult of accident or misfortune, but did not
Taise question of involuntary manslaughter.

2. Criminal Law €=762(5)

Charge in homicide prosecution was
Not objectionable as indicating that judge
felt defendant should be found guilty.

3. Criminal Law €=938(3)

Alleged fact that deceased had told de-
fendant that she would kill him if he went

3 State in homicide prosecution suffi-
ciently proved venue.

5. Criminal Law €=304(6)

Court would take judicial notice that
Brunswick is the site of Glynn County, is
wholly within Glynn County, and that
Glynn County is in the State of Georgia.

6. Criminal Law €=938(3)

_ Alleged fact that attorney had called
defendant at jail on day of fatal shooting
and on day of alleged statement by defend-
ant concerning shooting, which statement
was at variance with defendant’s statement
on trial of homicide charge, and was told
by person answering telephone that defend-
ant was too drunk to come to telephone
was not such newly discovered evidence as
would support motion for new trial.

_—o—-

Chris B. Conyers, W. A. Wraggs, Bruns-
wick, for plaintiff in error.

W. Glenn Thomas, Sol. Gen., Jessup, Col-
in J. Cogdell, Brunswick, Eugene Cook,

Atty. Gen., Rubye G. Jackson, Atlanta, for
defendant in error,

Syllabus Opinion by the Court.
WYATT, Justice.

1. The general grounds of the motion
for new trial are not argued by the plain-
tiff in error in his brief. We have, how-
ever, carefully examined the evidence and
find that it amply supports the verdict.

[1] 2. The first special ground of the
motion for new trial (numbered ground 4)
complains because the court refused a time-
ly written request to give in charge to the
jury the law relating to involuntary man-
slaughter. The evidence which it is con-
tended authorized the charge on involun-
tary manslaughter is the testimony of a


leon was gl
Ahere were | trial et the court hos a7
fidoe of ahe | Smite prosidiag, Nelens

you

*
@ticesiicie

ae Ty
ia

(eoeCrcay

oner's jury which lavestiga

t pA Sine, bi
7 ty yawn é af nf 5
sams J % eS rt
th Ey as Bk Smad See
%

“hava: done
=) > had :

be

t the only ‘manifestation
Yousness the prisoner showed daria
day was in shaking hands with _
who called upon. bim,-.
das remained In his coll, leanlug against
the bare, but yesterday be moved slong

evidence was to. the effect that y:
-Ba:feld and Nelsod had been to °€
Creek and on returning to their hom

Heretofore; he

jthey came by the negro’s ‘house to.
hint, Netéoh having been sent Tor by @
negro ta see about working for Nelac

the cell as péople came tn and be inslated
upon shaking hands with all who called.
| G9 SRE BEFORE,
rif Harrell hee served Lowndes

_. While the

pid Sida eat: Pre! We Re on £
negro and Nelson was tall
lig the gun fired, thd Joad entering a

county in his official capactty: for” pearly

fourteen. years and, during thay Hime, be | negro’s leg and

id producing a wound thi

called ‘npon- to—-execate- three
murdeyers, Burney being the third...
The first hanging under Sheriff Har-
rell's administration wag that of a negro
named Dick Townsend, charged with the
murdérof an officer from Florida who
came here to artest him. Towneend was
‘Shatged with some crime in Florida’ and
the sheriff from that state came here to

ended in death... The evidence. sho
-jthat Nelson was very. solickous_
the negro’s condition and administe
tohim before he died, and helped

ereateen minaies the Dody
akon from the cell a! 11:00

2 the ‘portion of
faced: the -great crowd

the expenses ot the borial. 2
The judge held that there was nothip

in the evidence to show tha

ng.” wat Intenttonal “ani
released.

arrest him. A

ties from-here the officer. j

th -<Chused an Escaped Convict.
| place where Towi oWwnsend “wa ,

Townsend for sever

coldest weather ever known fn thi
tion and they suceseded

He waa tried and
Frank Bloun
ght years.

eoded in capturing him,
sentenced to hang, ~~
it, Who was” hanged “here

killed's negro on an excursion train,
was given trial and paid the
-his-crime on the gallows,
Mrs. J, W, Wells, efter a Ungering
-| peas of several months, died “at Leake
Park Wednesday about Hoon, and’ the
remains were laid to rest in the olty cem-
stery yesterday morning, Rey, J.
of the Methodist chu

Praise Ils

Geng with which he had been workin,
but it was thought that he was with
...j otber gang. By the time an invest!
{Mon could be made, Osby had skip
-the p:emises and was en tonte tohis
‘ramping ground abont Valdosta, Th
night be was located in this city and
search was started for tim. "Tbe © dog
were pat pon his track, but they passed
through several yards and become mixed
with other dogein fights, so that
the negro got w good start on them. He

49 the ‘court
{am not afraid.

rch here, conducting
. Att Wells has sult
fered for reveral months with a compli.

: m golng to leave you gl] but 1
|. BOpS you will remember that I have a
_ Matle child that I wii] Jeave bere without

was run into the bay and the chase kept.

cation of troublesmand-there has been lit-
tle hope.of her recoy
few weeks. Her bh
have watched patiently by her side
through all of her illness and shégvas pa-
tiont and submissive to the last.

en cer iin aaa a Th

+ Thet's all I want to say.”

iors Aymb, be said “Good-bye.
, Good-bye,” aud Were were
00d-bye” from the crowd.
GOING TO TAB GaLzows,

und with his handa be-

up untit's late hour when ft was aban<|
doned. Osby will probably be captured
and returned to the cénip, though be fa.
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516 Ga.

any whisky, and Sam said, ‘Yes, down at
Corrine Brown’s who lives on the Scuffle-
town road farther out.’ They went off
down that place and came back, and I was
standing in front of my door, and they
went on the left side of the street to Mr.
Padgett’s store, and I went to the right-
hand side of the street, and when I got
up there to Dr. Crawford’s hedge I
stopped. Dr. Crawford is a colored fellow
who does some government work, and I
was by his yard-hedge or privet-hedge
around the yard. I saw both of them go
in Mr. Padgett’s store while I was stand-
ing by the hedge, and after they went in
there I heard three shots, and Robert and
Sam came out and Robert got in the road
and Sam on the side-walk, and he got to
the second hedge, and then Robert got on
the street with Sam and went towards the
Hardshell Church, going towards Scuffle-
town.” Mrs. Melvin gave testimony sub-
stantially the same as that of Padgett.

The foregoing discloses in part the tes-
timony of the witnesses mentioned. There
were other witnesses for the State. There
were a number of witnesses for the de-
fendant, and the defendant made a state-
ment before the jury. The testimony of
the witnesses for the defense tended to
show an alibi and especially to disprove
the testimony of Willie B. Robertson. So
much is said as to the evidence, in order
that the ground of the motion for a new
trial relating to newly discovered evidence
may be better understood.

Herbert Vining, of Fort Valley, for
plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon,
M. J. Yeomans, Atty. Gen., B. D. Murphy,
Asst. Atty. Gen., and E. J. Clower, of
Atlanta, for the State.

Syllabus Opinion by the Court.
ATKINSON, Justice.

[1] 1. The assignment of error relat-
ing to the general grounds of the motion
for new trial having been abandoned, no
ruling will be made on the sufficiency of
the evidence to support the verdict.

{2] 2. An amendment to the motion
for new trial was “upon the ground of
newly discovered evidence, the existence
of which was not known to movant or his
counsel and which could not have been dis-
covered by either in the exercise of ordi-
nary care.” ‘The affidavits of each of the
attorneys for the defendant stated: “I did

189 SOUTH BASTERN REPORTER

not know of the existence of said newly
discovered evidence, and do say that I
could not, upon the exercise of reasonable
diligence, have discovered said evidence.”
The affidavit of the defendant was to the
same effect. Held, that the language
quoted was merely an expression of opin-
ion of the affiants, and gave no facts by
which the court could judge whether they
had used due diligence or not and whether
the evidence could have been discovered
by such use. Being of. such character,
whether or not the grounds of the motion
for new trial would have been meritorious
in other respects, the defendant was not
entitled to a new trial on the ground of
alleged newly discovered evidence. King
v. State, 174 Ga. 432 (4), 440, 163 S.E. 168;
Taylor v. State, 132 Ga. 235, 237, 63 S.E.
1116; Patterson v. Collier, 77 Ga. 292
(3), 3 S.E. 119; Evans v. Grier, 29 Ga.
App. 426 (5), 115 S.E. 921. See, also,
Woolfolk v. State, 85 Ga. 69 (4), 11 S.E.
814.
Judgment affirmed.

All the Justices concur.

o doar WUMBER SYSTEM

BURKE et al. v. STATE.
No. 11567.

Supreme Court of Georgia.
Jan. 15, 1937.

Syllabus by Editorial Staff.

Homicide €>234(7)

Circumstantial evidence as to identity
of defendants as perpetrators of crime held
sufficient to justify conviction for murder
(Code 1933, § 38-109).

_——

Error from Superior Court, Richmond
County; A. S. Franklin, Judge.

James Burke and K. C. Evins were con-
victed of murder, and they bring error.

Affirmed.

James Burke and K. C. Evins were
jointly indicted for the murder of P. J.
Collins. The jury returned a verdict find-
ing both defendants guilty, and they were
sentenced to be executed. They made

Reece meee mt er

RURKE v. STATE Ga.
189 8.E. 517

joint motion for new trial, based solely
on the general grounds. A new trial was
refused, and the movants excepted. Col-
lins, the victim, was the keeper of a store
on Seventh street about three blocks
from its intersection with Walker street
in the city of Augusta. At about 6 o’clock
in the evening of December 2, 1935, Col-
lins received a blow (inflicted by some
blunt instrument) on the back of the head,
causing fracture of the skull and injury
to the brain, from which he died. The
tragedy occurred in the store. There was
an icebox on the left on entering the‘ front
door, and Collins had fallen behind this
box, where he was found on the floor a
few minutes after the blow, in a helpless
condition, exclaiming, “Please don’t do
that any more.” The floor was ‘bloody,
and there were some small bills in the
blood. One of the pockets was turned out.
Mrs. Collins made the discovery on her
return from their nearby home to the
store. As she entered the store, two
negroes rushed by her from behind the
door, and escaped. She could not iden-
tify them. The defendants were arrested
a week later. At the trial Mrs. Collins
testified, describing the scene  substan-
tially as above stated. Johnny Glover
testified that about 3 o’clock on the day of
the crime, the defendant K. C. Evins pro-
posed to him, “Let’s go across town out on
7th Street and pull a job,” to which he at
first assented, but on advice of another
person he refused to go; that about 5:30
o’clock of the same afternoon he saw K.
C. Evins and James Burke come up behind
him and go into a house; that on the next
night he saw Evins, who said “Man, you
ought to have gone with me. We didn’t
get as much as I expected, but we got
$15.” And that Evins “shook the money
in his pocket.”

Monroe Southerland testified that on the
day in question: “I was coming down 7th
Street from Broad, and was walking there
between 625 and 635 right near Walker
Street. * * * I saw two negroes com-
ing up 7th Street running, and just as they
got to the sign they made a left turn.
* * * JT was close enough to the negroes
to get a sight of one of the negroes, but
didn’t get a good view of the other negro.
When I 'saw them I was dressed in cloth-
ing that made me look like a policeman,
and they were evidently coming up 7th
Street when they saw me. But instead
they made a left-hand turn and went to-

wards the depot on Walker Street, and
they were running fast, and the only view
I got of them was by the light that was
shining on this negro’s face, and I got a
full view of James Burke, and the other
negro was crouching and running, and I
didn’t get a full view of him, and after
the negroes had passed me I heard Mrs.
Collins scream, and I lit out and ran to
the store. * * * The two boys that I
saw at that corner, one was named James
Burke, and last name of the other is Evins.
I next saw them at the police station.
They ‘asked me to come and identify the
colored fellows. I had given some descrip-
tion of them, and I went to the barracks
and they brought them out from the back
of the jail and stood them up and turned
them around. About six or seven negroes
were brought out. I was told to walk into
the room from the left of where I was
standing, to pick out the one that I saw.
I picked them out. I picked out Burke
first. Burke is in here. There he is to
the left there. His lips are peculiar.
I showed him to the police. He is the
man that I saw that evening on 7th Street.
I swear to that. They asked me if there
was any one there that looked anything
like the other man—the other man that
was with Burke that night, and then I
picked out Evins as looking something like
the other one with him. That is the other
negro there. I didn’t see a hat on the
Evins negro that night. If he had a hat
he had it in his hand. I didn’t see any
hat on this negro ‘Cocky.’ They both had
an object of some kind, but I couldn’t tell
what the object was.”

Miss Maggie Murphy testified: “I was
there about fifteen minutes before the kill-
ing. I went to the store for a coca-cola.
I was in the store about four minutes.
When I walked around to the store there
were two colored men standing between
Mr. Collins’ store and the shoe club cata-
cornered to the store. I saw two colored
men standing in the corner, That is when
I was going in the store. When I walked
in the store there was a tall negro and
there was a light one out there, and when
I walked in the store this tall negro walked
in the store behind me. This black one,
and then the other little light one, and the
little light one walked over there and
looked like he was going to buy some
raisins, and was looking all over the store.
I then bought something, my coca-cola,
and then went on home. After I came

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home I heard that he was knocked in the
head. Some boy told me.. That was some
seven minutes after I had left the store.
The negroes in the store; one was Burke,
and I don’t know the other’s name. The
tall one, he was black, and I guess was
about as tall as you, and had on a blue
hat. The hat was dark blue, and had a
little feather in it. The other was a little
bright short negro, and had a bad eye.
The left eye is littler than the right eye.
He had on a funny coat. It was of two
different colors. The sleeves were a dif-
ferent color from the body of the coat.
I don’t know what you would call it, but
it was a different sleeve. The sleeve
looked just as if it had been sewed into
the rest of this thing. That is how they
looked to me then. I didn’t see these
negroes again, only down there at the
police barracks in about a weck or some-
thing like that. Then I went down there
and I saw these two negroes that I saw
in Mr. Collins’ store the night of the kill-
ing. They brought them in, and asked me
to investigate and pick out which one it
was I seen in Mr. Collins’ store, and I did.
I pointed them out, and those were the
negroes. They brought in four negroes,
and those were the two negroes that I
picked out. I didn’t notice the coat or how
the fellow with the blue hat was dressed.
I see them now. There is one sitting
there, and the other sitting next to him.
This negro on this side has one big eye
and one little one. The sweater he has
on now is not the sweater he had on that
night.”

R. L. Turner testified: “I am a city
detective of the Augusta Police Depart-
ment. I investigated the report of the
death of Mr. Collins. * * * Mr.
Southerland saw these negroes at Walker
Street and 7th. I went:out there to
Walker Street and 7th. * * * There
is a light on that corner, a street light.
* * * JT would call that a good light.
I recall Mr. Southerland coming around
to the police barracks after this killing.
I had him there two or three times
looking at different negroes; and when
he would say that wasn’t the one, I would
of course release him and look again.
The procedure adopted was this. With
this girl, I brought four negroes out
and lined them up. I brought four and
lined them up across the floor, and asked
her to look at them and tell me whether

189 SOUTH EASTERN REPORTER

she could identify either one of them
or not. She pointed at James Burke from
a distance, and I said ‘Go up closer to
him and point right at him.’ She went up
there and pointed at James Burke, and 1
brought him out of the line, and then told
her to look the line over and see if she saw
any man there that resembled the other
one she saw that night, and she pointed to
K. C. Evins, and 1 brought him out of
line and got two more and brought them
out and put them in a room. That made
six. I then put them all in a row. I then
came back out and told Mr. Southerland to
go in that room and see ‘if you can pick
out any one in there that you can identify
as the ones you saw running away from
the Collins killing,’ and I pointed out the
room to him, and he went in there and
he brought James Burke out. The light
brown one, and I said, ‘Is this the one?’
and he said, ‘yes’ and I said, ‘go in there
and bring me out one that looks like the
other one,’ and he went out and came back
with K. C. Evins.” This witness further
testified that. each of the defendants after
their arrests made conflicting statements
as to where they were at the time of the
homicide. The defendants made state-
ments before the jury, in which each de-
nied participation in or knowledge of the
crime.

B. W. Franklin and M. Harry Steine,
both of Augusta, for plaintiffs in error.

George Hains, Sol. Gen., of Augusta,
M. J. Yeomans, Atty. Gen., B. D. Mur-
phy, Asst. Atty. Gen., and E. J. Clower,
of Atlanta, for the State.

ATKINSON, Justice.

In this case no complaint is made of any
error of law committed at the trial. The
evidence, though entirely circumstantial as
to identity of the defendants as perpetra-
tors of the crime, was sufficient to sup-
port the verdict, and the discretion of the
court in refusing a new trial will not be
disturbed. The case differs on its facts
from Wells v. State, 97 Ga. 209, 22 S.E.
958, and Young v. State, 121 Ga. 334, 49 S.
E. 256, where applying the principles now
stated in the Code,: § 38-109, relating to
sufficiency of circumstantial evidence, it
was held the evidence in those cases was
insufficient to support a conviction, ©

Judgment affirmed.
All the Justices concur.

aa

— SA REReAan

CRIDER v. HARRIS Ga.
189 8.E. bis

CRIDER et al. v. HARRIS et al.
No. 11495.

Supreme Court of Georgia,
Jan. 13, 1937.

Judgment €=725(1!)

Judgment in suit for cancellation of
deeds for fraud sustaining demurrer to pe-
tition of which one ground was failure to
state facts amounting to fraud held res ju-
dicata on issue of fraud in second action
based on substantially same allegations of
fraud as to plaintiffs who were parties to
first action, notwithstanding that new party
was not bound by judgment, and notwith-
standing that after dismissal of first action
plaintiffs Ymade tender of consideration re-
ceived for deeds, since in absence of fraud,
relief was not available with or without
such tender (Code 1933, §§ 3-607, 110-501,
110-504).

Syllabus by the Court.

1. Where a suit for cancellation of
deeds was based upon allegations designed
by the plaintiffs to show fraud on the part
of the defendant in procuring such deeds,
and the court sustained a demurrer, one
ground of which attacked the petition be-
cause the facts alleged did not amount to
such fraud as would authorize the relief
sought, and this ruling was never excepted
to or set aside, it constituted valid ground
for a plea of res judicata to a second peti-
tion based upon substantially the same alle-
gations as to fraud.

2. The ruling on the demurrer was bind-
ing in favor of the defendant as against
those who were plaintiffs in the first action,
notwithstanding the second petition intro-
duced a new plaintiff who was not bound by
the former judgment,

3. The fact that after dismissal of the
first suit the plaintiffs for the first time
made an offer to restore the status by pay-
ing to the defendant the amounts of money
which they had received from him do not
entitle the same plaintiffs to maintain
against the same defendant the second ac-
tion based upon substantially the same al-
leged facts in regard to fraud. This is true
for the reason that under the former adju-
dication such facts did not constitute fraud,
and in the absence of fraud the relief of re-
scission and cancellation was not available
to the original plaintiffs either with or with-
out such tender.

Error from Superior Court, Pickens
County; J. H. Hawkins, Judge.

Suit by Mandana Crider and others
against Skid Harris, administrator with
the will annexed of the estate of J. J.
Harris, deceased. To review the judg-
ment, the plaintiffs bring error.

Affirmed.

J. H. Paschall, of Calhoun, for plaintiffs
in error.

Roscoe Pickett, of Jasper, for defendants
in error.

BELL, Justice.

J. J. Harris, a resident of Pickens coun-
ty, died in 1913, leaving about 245 acres
of land which he had willed to his widow
for the period of her natural life. His
widow died in January, 1934. In Feb-
ruary, 1934, Skid Harris was appointed ad- .
ministrator with the will annexed of the
estate of J. J. Harris, deceased. Skid Har-
ris was the son of the deceased, and there
were several other children, including Mrs.
Mandana Crider, who were interested as
remaindermen. In April, 1934, Mrs. Crid-
er and others similarly situated filed a suit
in equity against Skid Harris individually
and as administrator, seeking, among other
things, a cancellation of deeds which they
had made, conveying to Skid Harris their
respective interests in the landed estate
left by their father, contending that they
were induced to execute the deeds for
grossly inadequate considerations by the
fraudulent representations of the defend-
ant. The defendant demurred to the peti-
tion, on the following grounds: “1. Said
petition sets forth no cause of action. 2.
Said petition shows upon its face that no
tender of the money paid each of the
plaintiffs in said petition by defendant,
Skid Harris, for the lands in question, has
been tendered back to defendant, or any
offer made to restore the status quo, be-
fore filing said petition.” 3. It does not
appear from said petition that all of said
plaintiffs were not over 21 years of age
when they sold their respective interests
in said lands to this defendant, or that
they were laboring under any legal dis-
ability at said time, or that they did not
have equal opportunity with defendant of
inspecting the said lands in question, and
of ascertaining its value, or that any legal
fraud was practiced upon any of them by
this defendant in procuring the deeds to
said lands, or that they or any of them

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402 «Ga.

CURRAN vy. THOMPSON, State Revenue
Commissioner.

No. 15529.

Supreme Court of Georgia.
Sept. 4, 1946.

Appeal and error C781(1)

A writ of error was dismissed where
agreed statement submitted by counsel for
the parties disclosed that the questions
raised had become moot.

—— i

Error from Superior Court, Fulton
County; Frank A. Hooper, Jr., Judge.

Action between Jack .Curran and M. E.
Thompson, State Revenue Commissioner.
To review the judgment, Jack Curran
brings error.

Writ of error dismissed.

Dudley Cook and MacDougald, Trout-
man & Arkwright, all of Atlanta, for plain-
tiff in error.

Eugene Cook, Atty. Gen., and C. E.
Gregory, Jr., E. J. Clower, and Victor Da-
vidson, Asst. Attys. Gen., for defendant in
error.

Syllabus Opinion by the Court.

BELL, Chief Justice.

It appearing from an agreed statement,
submitted by counsel for the parties in this
case, that the questions raised have become
moot, it is ordered that the writ of error
be dismissed.

Writ of error dismissed,

All the Justices concur,

BURNS v. STATE.
No. 15568.

Supreme Court of Georgia.
Sept. 4, 146.

Criminal law €=829(22)

The failure to instruct that jury could
recommend merey for one of two defend-

BR

39 SOUTH EASTERN REPORTER, 2d SERIES

ants tried jointly for murder and not for
the other was not error where jury was
instructed to make a separate verdict for
each defendant accused of murder, and in
their discretion to add recommendation of
mercy “whether a verdict of guilty of both
or either” of the defendants.

ae

Error from Superior Court, Lee County;
W. M. Harper, Judge.

Johnnie Burns was convicted for murder,
and he brings error.
Affirmed.

W. G. Martin and E. W. Feeney, both of
Leesburg, for plaintiff in error.

E. L. Forrester, Sol. Gen., of Leesburg,
and Eugene Cook, Atty. Gen., and Ros-
coe Thompson, Asst. Atty, Gen., for de-
fendant in error.

Syllabus Opinion by the Court.

DUCKWORTH, Justice.

1. The evidence for the State proved
the crime of murder as alleged in the in-
dictment, and the defendant’s statement
upon the trial admitted the commission of
the crime as alleged, and stated that the
motive was robbery. The general grounds
of the motion for new trial are without
merit.

2. The two special grounds of the mo-
tion complain that the court should have
instructed the jury that, in case they found
both of the defendants guilty, the two de-
fendants being tried jointly, they could
recommend mercy for one of them and
not the other; and that the charge as given
instructed the jury that they could not
recommend mercy for one defendant and
not the other. The court fully instructed
the jury as to their duty to make a sepa-
rate verdict for each defendant, and that
in either verdict they rendered, “whether
a verdict of guilty of both or either of
these defendants,” they were authorized in
their discretion and without reason to add
to that verdict a recommendation of mercy.
There is no merit in either of the special
grounds.

Judgment affirmed.

All the Justices concur.

NASTASI v.

ADERHOLD Ga. 403

Cite as 39 S.E.2d 403

Willie STEVENSON v. STATE.
No. 15569.

Supreme Court of Georgia.
Sept. 4, 1946.

Error from Superior Court, Lee County ;
W. M. Harper, Judge.

W. G. Martin and E. W. Feeney, both of
Leesburg, for plaintiff in error.

E. L. Forrester, Sol. Gen., of Leesburg,
Eugene Cook, Atty. Gen., and Roscoe
Thompson, Asst. Atty. Gen., for defendant
in error.

Syllabus Opinion by the Court.

ATKINSON, Justice.

Willie Stevenson and Johnnie Burns
were jointly indicted, tried, and convicted
of murder. Each brought a bill of excep-
tions to this court assigning error on a
judgment overruling his motion for new
trial, The grounds of each motion for new
trial are identical, and this. case is con-
trolled by the rulings in Burns v. State, Ga.
Sup., 39 S.E.2d 402, this day decided.

Judgment affirmed.

All the Justices concur.

ome

(0 ¢ KEY RUMBER SYSTEM

NASTASI v. ADERHOLD, Warden,
No. 15560.

«1

Supreme Court of Georgia.
Sept. 5, 1946.

Criminal law C16

Georgia courts have jurisdiction to
punish an offender for passing counterfeit
coins in violation of state statute, in view
of provision of federal statute that nothing
in specified sections, including section mak-
ing the passing of counterfeited gold or
silver coins a crime, shall be held to take
away or impair the jurisdiction of the
state courts under the laws thereof. Cr.
Code, §§ 163, 326, 18 U.S.C.A. §§ 277, 547;
U.S.C.A.Const. art. 1, § 8, cls. 5, 6; Code,
§ 26-3906.

Syllabus by the Court.

The courts of this State are not with-
out jurisdiction to punish an offender for
the crime of passing counterfeit coin, as
provided by the Code, § 26-3906. Jurisdic-
tion of such crimes is not vested exclu-
sively in the Federal courts.

——

Error from City Court of Reidsville; C.
L. Cowart, Judge.

Habeas corpus proceeding by Joseph
Nastasi, petitioner, against A. C. Aderhold,
warden, respondent, to obtain the release
of the petitioner from the custody of the re-
spondent, on ground that court that had
sen tenced him for counterfeiting had no
jurisdiction of the offense. To review a
judgment refusing to release him, the peti-
tioner brings error.

Judgment affirmed.

On March 20, 1945, Joseph Nastasi en-
tered a plea of guilty in the superior court
of Fulton County to an indictment charg-
ing him, under the Code, § 26-3906, with
fraudulently uttering, publishing, passing,
and tendering in payment “A certain coun-
terfeit coin being a likeness and similitude
of the fifty-cent silver coin of the United
States of America.” He was sentenced to
four years in the penitentiary. After he
had begun service of his sentence, he filed
a petition for the writ of habeas corpus,
contending that the superior court of Ful-
ton County had no jurisdiction of the of-
fense charged in the indictment, because
the offense is one against the United
States; over which the Federal courts have
exclusive jurisdiction.

The court refused to release the petition-
er, and to that judgment he excepted.

T. Ross Sharpe, of Lyons, for plaintiff in
error.

No appearance for defendant in error.

WYATT, Justice (after stating the fore-
going facts).

The record raises but a single question
for determination: whether the superior
court of Fulton County, upon the facts al-
leged in the indictment, had any jurisdic-
tion over the subject matter.

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'~ Exelted Wonder.
tak ~The murder of Tom Butler was aveng:
Aowday at 14:00 o'clock by the death of

_¥ Sake Burney upon the galiows.
hie Wap was sprang at 11:88 o.clock
nd ip fast seventeen minutes the body
~~» Aargey was taken from the cell at 11:20
¢'olock. and carried Into the portico of
‘the -jatl-where he faced the great crowd
Of people who ¢warmed about the jail to
L..@h. Sook at him. He was dressed in a
pew suft-of~clothes, black coat, Neht
obecked. trousers and appeared as. even
th “temperament as

ror — a ee eee ee
He spoke to the crowd as follows:
is “How do you do, Brethren and Sisters ?
"Well; I yot ap on tila box: but] got
ap here with Jesus, Of course I am go-
_. Ing to bid thts “old world farewell, and I
$m going on a long journey, but I have
ot Jooue In front of me. (Cries of
hank God”. “Amen” ete.) I am not
humed of Jesus, and { will praise His
me with millons. You all see where
Whiskey carries you 10> Frour the streew
#0 the jail, from the jail to the court
“house to the gallows, but I am not afraid.
Eat aithaarore of Jeaua and will apeak
», Hie pame before millions, I am not
~CONTSE Wo Tacs F IMON and give pratses
»- t0 His name, I trust my fate will be «
“Warning “to. you’ all. of course I -am
“g@oing.to leave you all, but I am going in
___ She name of Jesus (More Cries of “Thank
God" and “Amen”,) Brethren and sia.
Seren, Iam going to-leave you all. but I
“hope you will remember that I have a
_.. _Hittle child that I will leave bere without
afather, That's all I want to say.”
~~ After & short hymn, he sald “Good-bye.
all, Friends, Good-bye,” and there were
_oties of.““Good-bye” from the crowd.
ie GOING TO THE. GALLOWS.

a

i Mae
Cis.

peices weete
SUNG AT 11:33 O'CLOCK.
Enéued fo ' Just Aprenteen

Miouies—The Ranging Witnessed
by. Ministers, Officials, Physi-

anybody in the

‘ tee:

#*9

“Barney.

<p made to it g of t
‘he had made-for death’ “Ihave done
pot God in fromt,” he sald to'all who had
visited the jail, “and’white God isi
Pm not a'feared to follow.’ ~~~

About the only manifestation of ner
vousness the prisoner. showed during the
day was in shaking hands with thoke
who called upon him, Heretofore, he
has remained in his cell, leaning against
the bars, but.yesterday he moved ,along
the cell se péople came In and he insisted
upon shaking hands with all who called.

HANGINGS USRE BEFORE, __

Sheriff Harrell has served Lowndes
county Jn his official capacity for nearly
fourteen years and, during that Hme, he
bas been called upon to. execute. three
murderers, Burney being the third.

The firat hanging under Sheriff Har-
rell's administration wag that of a negro
named Dick Townsend, charsed with the
murderof an officer from Florida who
came here to arrest him. Townsend was
chatged with some crime in Florida and
the sheriff from that state came here to
arrest him. Accompanied by several

place where Townsend “was lvitg and
attempted to force open the door and
make the arrest, .As-the door flew cpen
Townsend fired and the officer was killed.
Sheriff Harrell and others followed
Townsend for several days through the
coldest weather ever known in this sec-
tlon and they suceeeded in Capturing him.
He was tried and sentenced to hang.
Frank Blount, who was hanged here
}C. ght years ago,-was sonvieted-of having,
killed-a negro on anexcursiontrain. He
was given trial and paid the penalty of
his crime on the-gallows,

Mira J. W. Wells Dead. .. on
Mrs. J. W. Wells, after a lingering {il-
ness of several months, died at Lake
Park Wodueaday about noon, and the
remains were laid to rest in the elty cem-
tery yesterday morning, Rev, J. E. Wray
of the Methodist church here, conducting
‘the funeral services. “Mis. Wells has suf
fered for reveral months with a complix
cation of troubles-and there has been lit-

tle hope.of her recovery during the- past |
few weeks. and and children

‘Her husband
have watched patiently by her side
through all of her filness and shégwvas pa-
tient and submissive to the last.” he re~

Meat the oorridor of the
Phat sheriff Harrell

ter ot tae gpenton_ 30
was in telling of the prepara-

n front

deputies from here the officer. went tothe;

- ; an sae er 7 2
Cleared of the Charge Againat bir
at the Commitment Triat,’
Do] Nelson was givem a comsritmen
trial at the court honse gegterday, Judg

Smite presiding, Nelson wd repfesetr
ed fn thé case by Cot: Whitaker, whit
Solieftor General Thomas representa:
the state. -

The coroner's jury which investigated
son, last Saturday night, stated that the
megro was killed by a gun ahot and that
the gon was in the hands of Dol-Nelsen
when ft fired. Thé jury did not say
whether.the killing the killing was tn-
terftional or accidental, and it is under-
‘ttood. thas there-were-members of the
jary who held to both theories, ©
A,warrant way sworn out for Nelson
rand at the commliment trial he appeared
under the charge of murder. There were
several witnesses for and against the de
fendant, but there was no one who saw
the shot fired. The burden of the
evidence wasto the effect that young
Ba:field and Nelsod bad been. to Cat
Creek and on returning to their homes
they came by the negro’s ‘house to. see
him, Nelson having been sent Yor by the
negro to see about working for Nelson
tuis year. ao . ?
While the negro and Nelson was talk.
Ing the gun fired, thé load entering the
negro’s leg and producing a wound that:
ended in death. The evidence showed.
‘hat Nelson was very solicitous about.
the negro’s condition and administered |
to him before he died, and helped bear.
the expenses ot the burial. ma |
The judge held that there was nothing
in the evidence to show that the shoot-
Ing was intentional apd Nelson was
released, ——

{

a
—> © a

-—€hased an Escaped Convict.
~- Hd, Osby, -who -wae-seat-to—MeRee's 1
camps several weeks ago from thisfcoun-
ty, made. hia, escape. Tuesday and-that
night he was chased near}y all night, by
the chief of police and the McRee ‘boys.
Osby has been working with two differs
ent gangs at the camp since he was sent
there and l'uesday morning when time
came to go to work he hid himself until
the gangs had taken up thetr,work at dif.
gang with which he had been working,
but it was thought that he was with the
otber gang. By the time an investiga. |
Hon could be made, Osby had skipped |’
the p:emises and was en route tohis. old.
tramping ground about Valdosta. That
night he was located in this city and a
search was started for him. “The ‘dogs
were put upon his track, but they passed
through several yards and become mixed
up with other dogsin fights, so that
the negro got s good start on them. He
was run into the bay and the chase kept
up until a latehour when {t was aban
doned. Osby will probably be captured

a

—

aim tr

and returned to the cmp, though he lal d
one of the slickest negro3s ir the land. p
‘Married Wednesday Evenmng at

|

matna ware hroneht on fk th ck a

A marFlace caramany wee mant-...a 12

_ ye

“#o the jail, f

— ee a oe VO

eo ., Bouse to the gallows, bat Lam not afraid
ba com hot Ashamed of Jesus and will epeak
~ #8 pame before millions,

Bana.

‘Wbing-to leave you all, bas I am going in
Sie name of Jesus (More Cries of “Thank
God” aud “Amen”,) Brethren and ein
eran, Tam: going to leave you al! but.
“Rope you will remember that I have a
Tittle ebtld that I will leave bere without
* That's all T want to say.”
Ariens, Good-bye,” atid ware were
often of."Good-bye” from the crowd.
: GONG TO THE GALLOWS,-

rion, &

the}

™m
llows this qorning as cheerfally ag if
liad beon going to a feast.

CSRS AROWT THE Zar
A large crowd’ stood about the jafl all
ts morning, inost of the people being
er te. f the prisoner.
| te

jw

sevyts

rom the jail to the court

) T am not]
PORTE WS Tae fb CAITOR ad give praises

. T trast my fate will be
40 you all. Of course I am

Lee fara evi

1 few etka: Wer’ buchoed act

| have to be regletered to vot

boom mentioned for any ofthe offices: }
the night before the election will deter.

dosta has

fine method of choosin
other towns in Gea
afier her with great

The probiliftion election, whith was
called by the ordinary for the 16th of

of that month, has been postponed
indefattely.. The

was whhdrawn
mn who were
tidg tt up and tt ts

Thalr

killed’'a négro on @0 excursiontrain. He
was given trial and paid the penalty of
hia orime on the gallows,

Mira. J. W. Wella Dead. ———
Mrs, J. W. Wells, after a Nogering {li-
‘nees Of several-months, died at Lake
Park Wedueaday about noon, and the
remaing were laid to rest in the olty cem-
etery yesterday morning, Rev, J. E. Wray
of the Methodist church here, conducting

oes. MS. Wells lias suf
fered for reveral months with 4 compli.
cation of troubles and there has been ‘Iit-
Je hope of her. —the--past
have watched patiently by her. side
throngh all of ber illness and te pa-
tent and submissive tothe last. The re-
males were brought up from Lake’ Park
yeetesday morning and ‘® large funeral,

aunty and
hize with them

alban

+the premises and was en ronte tobis old.

at-the residence of-Mr, lL. ©. Solonion-on
‘o'clock,
Mr. Echols
Miah Lovie Gieen, a.

oe Se ve a

|
whisk:
Afte
aband
found
the sta
it one )
not en{

eS oe 4 etMeee UY
gang with which he had been working,
but {t was thought that he was with the
other gang. By the time an investiga.
tion could be mado, Osby had skipped

tramplag ground about Valdosta. That
night he was located in this city. and a
search was started for him. "The dogs
were put upon his track, but they passed
through several yards and become mixed
up with other dogein fights, so that
the negro got s good start on them, Hel
was run into the bay and the chase kept]

a

* Married Wednesday Evenimg.

A marrlage ob

emony- was - performed. po a

Gane rég
Batt’s Ca)
at
cous §u)
deatroyin
and givin
ung lady from|ing op +
RB ture to
have 80 n

The contracting parties were
Prescott, of Lake Park, and

ut Carolina; who

siete arn

to vote In

—

ba

othat the clisens’ meeting at

ine who are to be the candidates. Val.

reduced ‘the excitement of a
unicipal election to a minfmam by her
& her officers, and

rgla might pattern
profit.

SO Oper mscmatcarndin,

The Election Postponed,

el]
ing

Per tem

braary and postponed until the ith
ina

i
‘bo based upon

erected Tt ie not &

wit

ubderstood that it»
several months, .

for an election
opportunity wonld
Yegister, and both

Contest wanted to give as
a4 possible for
nown. just:
be returned to the ordinary, but it je
ill be with held “for

Mra,

tesatat: 18 true. medy..

\ { . —~ . =e feant,
.| DOL acts ass tonfo and alierative. _Te acta | t)

TMAUCS OF the fu
tera‘fe an excellent

estion. Old ple
what ery pod oe fif

bottle at JM.

The young ladies of the Columbine
ub gave an oyster supper at thefr rend+

ti ere was a
The young
very good anm to be added
with which to start a
The young ladies of t

should receive anstinted
from all of the of ixens.
fs very much needed jo

At the home of the bride, six miles
north of Homertvilie,

Smith were joined in marriage In a cere.
mony perfurmed by Rev. J. W. Stallioge, |

urs, Phoebe Thomas, of Juncta
ie, was told by hur
‘Sumption and that ther
her, but two. bottles Dr.
covery completely cured
it saved her life. M

bg
iationia
home; *

Jorida St. San Francisco,

ontracting - arties wil} series
pratulations té* them

NTA

oes" ol stinitate and: cast
toes Hot stimulate and con-|
ek6v nor other

aiding Nature in ae
Bttions "ERO the
ppetizer and aids|etc. The fi
fence towa)

nd it just exactly
| discovered |

ty cemta per
rvey's Drug Store.

arena ate Ee

Columbine Clubs Supper.

AW
“My dau
ay attack o
from pain |
Loudea Gr|
using gaite
out any be
Chamberlat)
given entire

alen-ts aian
tism, Sold
druggieta,

700m in the city hall fast night and
good crowd in attendance.
ladies succeeded In making a}
to the fund
public library here.
he olnd are engaged
most worthy enterprise and they,
encouragement
A public library
Valdosta. —

Married in Clinch County.

Chan
The Tiwe:
mitment tris
slaving af J.
Christmas, i
inal. The b
hay been gt
several of th
nefg bhor hom
eee

Pai

§ “cnteeny
" a hd
Pai
weeke was | a. am

2 Beta)

on Janvary the 17,

Margaret E. Smith and Mr. M. B.

cate fh Le

Two Lives Saved.
doctors she aad or
® Was no

t

Th at

ae
sod


LEE COUNTY FROBATE COURT
P.O. BOX S92
LEESBURG, GEORGIA 31763
1-912-759-6206

JOHN WHEATON
JUDGE, PROBATE COURT

WYATT ESPREY
P.O. BOX 277
HEADLAND, AL 36345
DEAR MR. ESFREYs;
MR. ESFREY, I AM SORRY BUT WE ARE UNABLE TO LOCATE
ANY INFORMATION ON WILLIE STEVENS.
IF THIS OFFICE CAN BE OF ANY FURTHER ASSISTANCE TO
YOU PLEASE CONTACT US AT ANYTIME.
SINCERELY, :
) i . { \ yl
Collar Wy. DEN

ELAINE M. GARNER
CLERK


Re SEN Napeaes S ey
SES ee BS oe

ee. Mee Fee eheereemreE By Sere Ae ar
3 — } asia Sees a RR EON MA es OE Ree aoe ini eae. SRE R) ao no Rane
: - a Sal gs PRR eR Es Sof ge ee ee ean oe SAGAR ne ei ee ee eee eh cape aee tt ate hata caret ED RPE
SERA rane ct gee Se RT eet ean oie 27g cpt a Teas eee. ESPs epg Se pte ne es CSi: copehcatad gh ae RSE gre? Re OR ene aa
ELEN 5 were eas Fg oes 8 inp Ree See E fmt h = i eee BUSSES Ahi os Pp egay eat eee Sok R wT cS 3

¢

BURNS, Johnnie and STEVENSON Willie

Burns, 22-years-old, and Stevenson, 17-years-old, both
black, both electrocuted at Georgia State Prison for
murder (Lee County) on Nov, 22, 1946. Both cases app eal ed
and affirmed (Burns 39 SOUTEEASTERN (2nd) 02 and Stevens
son 39 SOUTHEASTERN (2nd) )03), Nothing in appeals on
CASES Nonetheless, appeals filed GA.-BK & MAG EX

SKIP eS , ;
Fae hate

7, BSL a
pp 73 he

|9
452


ager sence, White, hanged Columbus, Georgia, July 39, 1847

r Gund sare
noher eountriea, and in mies eevlbons of oul

t.,
aa

owas, (hese erecutins are bitden trite the pabite |

|
_ ahaa, | OF¢. Che crimioal gues to the gallows, attended vy,

the officers of Juctice aad a few rirepectabile cei te,
woaths than wind udisigtbol by the poplar etcite-
mvent, acd with suipe teasitiable ptuspeet ul icing:
hig thoughts, in tsa laat Herting moments, ob the
isha of Ubat raeiaibte - world ta,wlich be te hare
: tognitag. - tte. prargradira of justicd are anawered, the.
requirements of the exininal lows are watiatied, Ube.
criminal dive, and soriety ie saved from the danger.
of bie farther vottages.  W. ould it not be es well,
Swen, aud probaldy beter, tu ‘adapt. the mode.ct!
WiOte prieale @xecuthine % Cam any possible gow!
either ta'the criminal ot the geimunity, result (racy
the present plan that may not be fadrd in the alies-
‘gon Tt We simply rake. howe suggretivis thas
our realare qd out: teyiolaturs may give thea at
: Teast & pasding thought, |
hg te far ae we have Wnderstovd, Kutter made. eo
gonfiesions of any nnportauia | ndved, atthe tine
of bis exetution he was evidently ia no frame ot |
, wake ony. Vuilag bie confinement ie
ypeloon ber persiatad in his igoorance of the dunimnis-
sion of the ctime for which be waa tu suiler; anit: |
protested that if he dena the doed, ib. es ander sbi:
influence of intoxicating spirits, whivh blidded tur!
to the fact and blvtted H from bis memory, Oiler:
cries preyed upon hie cunsclrnce, bat as te thia hie
gr : oremed ty suiter authing, 44 itrae that Bie pease:
i oe abte bie: ey — hiax: i. ot deatruyed® amt his saimd ay far obscured by the
seneins of hie destiny? Crimnal ‘aduvd be} effects of ardent spirits av to leave him in the gon~
ce of be p life duping bia ithed pajngrn | dition of @ maniac? ‘He said so, and-died with whee
‘: dadkrid teresies, beyond the | Hid da bie lips, But hola gone; aud the fu "|
ade tro Ne am, be nl | vs ilar
of eri a rally:
oe ree .., - on | weak, he plunged tu early fife into dixsiputed brabits, |
toe € ge par Salsa thes adaetiine than theer | whict harried bya, alas, tou aovn te deady of blood
rte ton Wa Gib dread af deat, seb igine | and a folon’y grave. May bis #iample and bia
beet Lomlad te Wa oF + aS ead be « ‘warning ty the youths whe witneesed bis
ore bburerone death or may hear of bts fate !

b

© ENWUIRER, Columbus, Georgia, August 3, 1847, 2:1


Heed Corvfermotidr..

Busk, aged 30, negro slave; convicted of assault and battery
with intent to kill Harvey Tiller, a white man, and sentenced
to be hanged on 4=Mey-+850 in Augusta, GA.

GAX/- [ES
Augusta (GA) Constitutionalist, Sun., 5 May 1850.

"The state v. Buck, a negro man, slave of Jno. M. Green of
Randolph Co., Ga., about 30 years old, for an assault and bat-
tery with intent to kill, on the person of Harvey Tiller, a
white man-- a native of Virginia-- aged about 30; who had lived
in this county but a few months previous.

The boy, when on trial, was ably defended, and the court
gave him all the priviliges for such defense as was its
power, and after occupying near a day and a half, the jury

returned a verditt of guilty of the charges alleged in the
incident.

Yesterday he was placed at the bar for sehtence, Judge Hill
presiding, who, after lecturing, not only the prisoner, but
all present, proceeded to pass sentence of death. Buck should
be taken to the jail of the county, and kept in close confine-
ment until the third Friday in June next (21st) when he should
be brought forth between the hours of and within
a mile of the said jail, he was to be hung by the neck on a
common gibbet or gallows, until he be dead."


| BUTLER. Jones (18),7) MA tM PF NLMGUP

- On the night of some fires in Columbus, Ga., Miss Mary
Ann Corey was returning home with some friends and was
overtaken by Jones Butler who, after somewords, shot her
in the head, inflicting a wound from which she died a
few days later, The Screams of her companions summoned
two men.at whom Butler fired before betreating to a bridge
and escaping, He was subsequently arrested at Girard and
returned_to the Columbus jail, He was hanged in July or
August, 1847, before a large crowd of witnesses. During
his confinement, he maintained, and continued to do so un=
til his death that he had ko knowledge of the crime and

that if he did it, he was under the influence of intoxi-
cants to the extent that it had blotted it from his
memorye Said other crimes .did prey on his consciousness,
NATIONAL POLICE GAZETTE, 3-20-1873 )-3-18)7 (236) and

be |

=

8-1-1817 (386). "The young girl about 13 years-old, whe

was shot an the head last week in the streets coe

by a fiend in human shape, .named Jones Butler, die roa
a day morning, Butler, the ENQUIRER states, was or “a

tke toon Baldwin County and is the Sake ak
St UP A ceiaa tecne Tren teh prtioers ao ted’bts
j j tempted escap

apne te Ogigt CHITIONAL IST, Augusta, a - rome
an ete take © agar te last paper went
"Jones Butler, who was

i been
for the mrder of May Ann rc cea one to
-convscted ae heen chargers arch andes next. The
Cc ‘ e
death at the meeting of the Cour Sanford, Judge

ol. Frederic H,
isoner was rn OY much ability, but so strong

accused, of the hi
We understand that the j
mercy, but we doubt w
rescue from the gallo
CONSTITUTIONAL Isp A :
"Jones Butler was steouten at cole etapa Set |

ort i
that he was SinGacnt so hina and persisted to the last

(2-6). 3 Augusta, Ga, Aug, 5 18),7

NO APPEALS.
BUTLER, John, and REID, Guy, blacks, hanged at Thomson, Gaey On December 27, 190h.

"(Special Dispatch to the JOURNAL.). Thomson, Dec. 3 = After a search extending through
Thursday night, the dead body of Mr. Rad G, Story, a respected farmer, living a quarter
of a mile from Thomson,was found yesterday in a canebrake, about one mile from his
home.

"He had been struck three times on the head with an ax, exposing his brains,

bes cides having received a flesh wound in the face from a pistol shote

"The facts in the case are as follows: John Butler, a young negro man, livjng near the
scene of the crime, had been employed by Mr. Story to pick some cotton, Butler in
his testimony delivered this morning states that on the day of the killing he wished
to quit work and attend a negro burial in the neighborhood,

"Mr, Story objected to this and the negro claims he threw his hands behind him as

if to draw a pistol, te thereupon drew his pistol, firing three times.

"This occurred in a woods near Butler's house, Butler, with a negro companion, Guy
Reid, then, it is charged, went to his house and secured an ax and pursued Mr,

Story who appears to have been making his way homeward.

"Guy Reid, according to Butler's statement, ran forward and grappled with Mr, Story.
At this time John Butler struck Mr. Story with the ax and between blows of the two
assailants he was murdered, His body was then dragged to a cane swamp, a short dis-
tance away, and hidden thereine

"John Reid, father of Guy Reid, and Harriet Butler, mother of John Butler, are now

in jail, together with the two alleged principals."


BUTTS, Jim and JOHNSON, Ld, blacks, hanged at rerry, Gas, on
Feb. 13, 1890,

“TWO NECKS BROKEN; BD JOHNSON AND Jim BUTTS ARE HUNG: JOHNSON CON-

THE CRIME THEY COMMITTED, - Perry, Ga., Feb. 13 (Special) - The mur-
derers of Captain Miller were hanged here today. Johnson was dogged
to the end, but Butts acted like'a coward, The men did not sleep
mucg the night before. By degrees, as Johnson saw death approaching,
he concluded to confess, Ed Johnsonput the blame on Mann Hall, who,
he says, tempted him by telling how much moneynold@ man Millerhad., He
got°’an ax, and entering the house, hit Miller on the head with it,
killing him instantly. Johnson told the story with particlarity of
détail, and then described the robbery of the house, 'Hall and
Gibson startéd this murder,' Johnson concluded, On the gallows he
repeated his confession. He said he didn' t want the doctors to get
his body. He was accompanied by two colored preachers, After exhaust-
ing the ten minutes given, the moment of execution came, sheriff
Cooper pulled the trigger at 1:35, and both bodies were swining in the
air. Their bodies were then turned over to the méidcal 4 cay
for dissection,

"THE CRIME AND TRIAL. '

"On Friday evening, October 25th last, when the down passenger train
on the Georgia Southern and florida railraad reached Unadilla, in
Dooly county, two negro men were among the passengers who alighted,
There was nothing about either of them calculated to attract more than
a passing notice, and soon they were wending their way back up the
railroad in the direction of MAMEZXASKXAZAWHX Houston county. Crossing
*the line into Houston, they soon arrived at the cabin of one Tom Hall,
colored, with whom, it seems, they were acyuainted., Here, either by
accident or appointment (it has never been clearly proven which) they
met with several other negro men, and soon were engaged in that, to
the negro, the most fascinating of all games of cards, 'skin.' "the
two travelling negroes were the condemned men, Ed Johnson and Jim
Butts;° those with whom they played were Tom Hall, Mose’ Gibson and
Mann Hall. Johnson and Butts were professional gamblers, and fre-
qguented the lumber camps and sawmill shanties on the new road, where
they plied their vocation,

"THE MURDEROUS PLOT.

"According to the confession of Johnson (whf&ch is not substantiated
by that of Butts), he 'cleaned them SWEX all out,’ and it was then
and there that the plot to murder Captain William Miller and his
wife and r@b them, was offered to the:assembled company by Mann Hall,
and agreed to. At any rate, the two negroes remained at the cabin of
Tom Hall all day Saturday and on saturday night, Octoher 26th. On
Sunday morning, October 27th, Captain Miller's house (which was about
five miles distant) was entered, Captain Miller murdered with an ax,

and his agéd wife knocked insénsible with a piece of wood, The
house wasrobbed of all the money that it contained, but nothing else
was taken, The murder and robbery was’ discovered next morning at
about daylight by the cook, a negro woman, who had gohe into the
house to arouse them, Captain Miller was found dead sitting ina
chair and Mrs, MXXKXX Miller in an insensible condition on the floor,
The alarm was given, and neighbors sent for, who sgeon began to arrive,
Efforts were made at once looking to the detection of the murderers,
The two strange negroes, who were known to frequent Tom Hall' s were
suspected and a posse went immediately to that place, but the birds
had flown. ‘*unners were put on their trails and descriptions sent to
all the stations on the new™ railroad and to the p@lice of Macon,’ with
suitable rewards offered for their capture,

"TEN NEGROES ARRESTED.

"In the meanwhile the excited actions of the negrores on the planta-

tion and at Old Tom Hall's created suspicition and XKBK ten of them

namely Tom Hall, Mann Hall, Glen Lawson, Hector Stubbs, Alfred McGehee,
Mose Gibson, Sonny McGehee, Blla Hall, Fannie McGehee and Ella McGehee,
were arrested and lodged in jail at Perry. Sheriff Cooper of Houston
who had attended the inquest with Coronor Schilling, being exceedingly
energetic and untiring in his efforts to have the murderers brought to
Justice, These ten were all in jail by Wednesday night following the
murder, On the next day (Thursday) Jim Butts, who had gone down the
railroad to a station called Ashburne, was arrested by a former employer
and he, too, was brought to Perry and lodged in the county jail to await
his committment trial, kd Johnson, it seemed, had made good his escape,
For various reasons, Judge A, L. Miller, who was then judge of Houston
county court, postponed the commitment trial for about three weeks, At
this trial the prisoners were represented by Judge 4, “, Giles and Messrs,
W . ©, Winslow and E, L, Felder, and Tom Hall and the three women dis-=
charged and the seven men held for trial. ‘The prosecution was pepresented
by Colonel C. C. Duncan, | :
; | "THE TRIAL AND CONVICTION.

"The enormity of the crime, and the large number of prisoners imposed
on the county rendered it advisable in the opinion of Judge Gustin, of
the superior court, to order an early trial, and accordingly the 6th of
January, 1890, was set for the trial to begin, and a special grand jury
summoyjed, In the meantime the offifers of the county had not given up
hope of caphtring Ed Johnson, It was known to a certainty that he had
gone to Macon, and as every avenue of escape had been carefully guarded
they were reasonably certain he was still there. Johnson really had
been in Macon all the while, and on the 29th of November, 1889, whén
he thought the search was about given up, he ventured out and was at
once arrested by Mr. Jd. W. Johnson and placed in Bibb Jail but by order of
Judge Gustin was not rémoved to Houston until the day before the trial.
He was charged and indicted for the crime of murder with the other seven,
On the 6th of January the superior court was opened with Judge a. L.
Miller presiding, Judge Gustin having resigned and Judge Miller appointed
in his stead, _Jognson was first put on trial, The state was represented
by Solicitor General Felton and Colonel %, C. Duncan, and the court
appointed A. C, Niley of Fort Valley to represent the prisoner. The

Jury was made up on Monday and the trial ended Tuesday evening in a ver-
dict of guilty. Wednesday morning Butts was put on trial with the same
attorneys for the state, and Hon. kK, N. Holtclaw for the prisoner, by
appointment of the court. His trial resulted in a verdict of guilty on
the same day. Thursday morning the others with the exception of Sohny
McGehee, who is still in jail, were put on trial. The jury was not
completed until night and nothing more was done that day. All day Friday
was consumed in taking testimony, and it was on this day that dohnson
and Dutts made their confessions, so conflicting in all the essential
points as to render a verdict of guilty impossible. Johnson stated that
there was a conspiracy entéred into on the night mentionéd in the be-~
ginning of this report, by Mann Hall, Mose Givson, HBG6tor Stubbs, Gien
Lawson, Alfred McGehee, Jim Butts and himself to murder and rob the old
couple, and that Glenn Lawsén and Mann Hall did the killing and that
they divided the spoils equally.

' CLAIMS TO HAVE BEEN A VICTIM.

"Jim Butts confessed that Ed Johnson conceived the plot and enticed him to
the residence of Captain Miller under the pretense that they were going toa
party, and that Johnson went into theyghouse and assaulted and robbed the
old couple and divided the’ money with him, and that the others accused
of the crime had nothing to do with it. MSXAKMKKX This statement was
better corroborated by the evidence introduced, and the five men laston
trial were acyuitted by the jury at about 9 o'clock XKXEXHXKKEX Monday
night. The two men were brought into court tuesday morning, Jan. 9, 1900,
and sentenced by Judge Miller to be hung in private in Perry off February
13th following." CONSTITUTION, Atlanta, Ga.,, 2-14-1890 (seven-one.)

a ~ Sooner na

554 Ga. 186 SOUTH EASTERN REPORTER t

BURDEN y. §
186 re gira “ ve

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Error from Superior Court, Fulton Coun-
ty; G. H. Howard, Judge.

Suit by P. H. Mell against A. E. Norton
and others. To review the judgment, nam-
ed defendant brings error.

Reversed.

See, also, 179 Ga. 871, 177 S.FE. 557.

Louis H. Foster, of Atlanta, for plaintiff
in error.

J. S. Nunnally and Roy S. Drennan, both
of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

GILBERT, Justice.

P. H. Mell obtained a judgment against
Henry J. Norton in the municipal court of
Atlanta, and caused a summons of garnish-

fore the bill of exceptions should be dis-
missed.” Held:

1. Although in the bill of exceptions
error is assigned on the grant of interloc-
utory injunction and appointment of a re-
ceiver, the record clearly shows that only
a receiver was appointed; there being no
grant of an injunction.

[1] 2. Under the pleadings and the evi-
dence, irrespective of the question of owner-
ship of the funds, the appointment of a re-
cciver was not authorized.

[2] 3. The motion to dismiss the writ of
error is denied.

Judgment reversed.

All the Justices concur.

complaint is made of any ruling made by
the judge during the trial. The evidence
was sufficient to support the verdict, and
there was no abuse of discretion in over-
—— the defendant’s motion for a new
trial,

Judgment affirmed.
All the Justices concur,

.

BURDEN v. STATE.
No. 11042.

‘
ground that statement expressed court’s
opinion as to value of evidence,

5. Homicide €=250
Evidence sustained murder conviction.

—~____

Error from Superior Court, Bibb Coun-
ty; W. A. McClellan, Judge.

Arthur Burden was convicted of murder,
and he brings error.

* Affirmed.

Norman E. English and J. M. Hancock
both of Macon, for plaintiff in error. :
Chas. H. Garrett, Sol: Gen., of Macon,
M. J. Yeomans, Atty. Gen., Dave M. Per-
ker, Asst. Atty. Gen., and E, J. Clower
of Atlanta, for the State.

Soe HACE Pea L YY

Se ie i 2) ease fi

RGR a ae

(oc wb KEY NUMBER SYSTEM >

lodged with it, and it was then indebted, not
to Norton, but to his wife as assignee.
Mell then filed an equitable petition in the
superior court against Ilenry J. Norton
and his wife, Alice E. Norton, and Met-
ropolitan Insurance Company, alleging in-
solvency of Norton, and that the transfer
had been made in fraud of creditors, and
secking to enjoin Mrs. Norton from selling,
transferring, or assigning the chose in ac-
tion, and praying for appointment of a re-
ceiver for the funds due and.to be due from
the insurance company. Norton and _ his
wife filed a joint answer, setting up that the
funds were the property of Mrs. Norton.
At interlocutory hearing the court appointed
a receiver. Alice E. Norton alone except-
ed to the judgment, naming P. IT. Mell as
the sole defendant in the bill of exceptions.
On the hearing in this court the defendant
in error filed a motion to dismiss the writ
of error, on the ground that “Henry J.
Norton and Metropolitan Life Insurance
Company were both named as defendants in
the original bill, and both of said named de-
fendants are interested parties to the liti-
gation and both of said named defendants
are interested in the result of the judgment
to which exceptions are taken, especially one
of the defendants, to wit Henry J. Norton,
and are therefore proper and necessary
parties to the bill of exceptions, but are not
named as defendants in error; and there-

‘= ment to be served on the Metropolitan Life
ode Insurance Company. The insurance com- Supreme Court of Georgia. Syllabus Opinion by the Court. 2
' pany answered that it originally was in- June 12, 1936 1
debted to Norton, but that the indebtedness at alae ATKINSON, Justice. as! t

ne had been transferred and assigned to his Syllabus by Editorial Staff. A married woman was lying asleep about it $
wife, Alice E. Norton, the assignment being MURRAY v. STATE. dawn, in a bed near a glass window, be- lest ba

¥

&

No. 11034.

Supreme Court of Georgia.
May 14, 1936.

Rehearing Denied June 18, 1936.
Syllabus by Editorial Staff.

Criminal law C911
Overruling accused’s motion for new
trial held within trial court’s discretion.

— os

Error from Superior Court, Chattooga
County; C. H. Porter, Judge.

Wilbur Murray was convicted of rape,
and he brings error.

Affirmed.

John D. & E. S. Taylor and C. D. Riv-
ers, all of Summerville, and W. B. Mebane,
of Rome, for plaintiff in error.

James F. Kelly, Sol. Gen., of Rome, J.
Ralph Rosser, of Lafayette, M. J. Yeo-
mans, Atty. Gen., B. D. Murphy, Asst.
Atty. Gen., and E, J. Clower, of Atlanta,
for the State.

Syllabus Opinion by the Court.
ATKINSON, Justice.

On an indictment for rape a verdict was
returned finding the defendant guilty. No

—

G=For other cases see same topic and KEY NUMBER in all key Number Digests and Indexes

Ps
/

1. Homicide = 166(1), 167(8)

In prosecution for murder of woman
shot while lying in bed with accused’s wife,
who was wounded, evidence as to assaults
by accused on his wife held admissible as
tending to show motive and to identify ac-
cused as perpetrator of killing.

2. Homicide €>166(1), 167(3, 5)

In prosecution for murder of sister of
accused’s wife shot while lying in bed with
another sister and accused’s wife, who was
wounded, threat made by accused at home
of one sister “to kill the whole damn family”
held admissible to show motive and to iden-
“ify accused as perpetrator of killing, al-
though threat was made eleven months be-
fore homicide and deceased was not then
i and had seen accused but once be-
ore.

3. Criminal law €=683(2)

In murder prosecution, admission after
accused closed of evidence as to accused’s
threats held within trial judge's discretion
although evidence was not in rebuttal of ac
cused'’s evidence or statement.

4. Criminal law 656 (3)

Court's statement, in overruling objec-
tion to state’s evidence: that court thought
anything accused said, if offered by state,
that throws any light on the issues” would

be admissible held not cause for reversal on
ge

tween her two sisters, in the home of their ‘be!

mother. A shotgun was fired from without
through the window. The load passed over
the woman nearest the window. Some of
the shot entered the ear of the married
woman, while the main load penetrated the
head of the woman farthest from the win-
dow, causing her death. The murdered
woman resided in New York, but was at
the home of her mother on a short visit
intending to return to her own home on
the following day. The husband of the
marricd woman placed on trial for the mur-
der was convicted and sentenced to be elec-
trocuted. The exception is to a judgment
overruling his motion for new trial.

[1] 1. The court admitted evidence as to
assaults by the defendant upon his wife,
ene of them committed eleven months pre-
viously and another on Wednesday night
before the homicide committed Saturday
morning. This evidence was not objection-
able as irrelevant and immaterial, when
considered in connection with other evi-
dence that the three women were lying in
the same bed in the position indicated above ‘
at the time of the tragedy. When so con-
sidered, the evidence tended to show mo-
tive, and to identify the defendant as per-
petrator of the crime. Cawthon v. State,
119 Ga. 395 (5), 46 S.E. 897; Frank vy.
State, 141 Ga. 243, 80 S.E. 1016; Williams
v. State, 152 Ga. 498, 110 S.E. 286.

F
>For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

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556

[2] 2. The court admitted evidence as
to a threat by the defendant, eleven months
before the homicide, “to kill the whole
damn family if it was the last thing he
ever did.” The threat was made at the
home of one of the three sisters, pending
an assault upon the defendant’s wife and
her younger sister not heretofore mention-
ed. The deceased was not present, but was
at her home in New York, and had seen
the defendant but once before. (a) The
threat to kill the whole family was broad
enough to include the person actually kill-
ed. The defendant’s wife being wounded
by the same shot that produced the homi-
cide, the motive which led to the killing
may have been connected with the shooting
of the defendant’s wife. Woolfolk v. State,
85 Ga. 69 (17), 11 S.E. 814; Howell v.
State, 162 Ga. 14 (4), 134 S.E. 59; 16 C.
J. 545, § 1041; 21 Cyc. 922, and cit. (b)
The evidence as to threat was not inadmis-
sible, as contended, on the ground of re-
moteness of time (Everett v. State, 62 Ga.
65), or absence of the deceased at the time
of the threat, or the want of contact be-
tween the parties. (c) The evidence tend-
ed to show motive and to identify the de-
fendant as the perpetrator of the crime,
and consequently it was admissible as rele-
vant and material, the weight to be deter-
mined by the jury.

[3] 3. If the testimony of certain of the
witnesses delivering the evidence dealt
with above was not in rebuttal of evidence
offered by defendant or of his statement be-
fore the jury, it was within the discre-
tion of the judge to allow introduction of
such evidence after defendant closed. Tos-
kins v. State, 11 Ga. 92 (3); White v.
State, 100 Ga. 659 (4), 28 S.E. 423; Dixon
v. State, 116 Ga. 186 (5), 42 S.E. 357.

[4] 4. On objection by defendant to evi-
dence offered by the state, the court re-
marked: “Well, I think anything the de-
fendant said, if it is offered by the State,
that throws any light on the issues, would
be admissible, and I overrule the objcc-
tion.” This remark was not cause for re-
versal on the ground that it was an expres-
sion of opinion by the court as to the value
of the evidence. The criticism was directed
particularly at the phrase “that throws any
light,” it being contended that this lan-
guage “was a positive and unequivocal as-
sumption that it was the truth.”

Ga. 186 SOUTH HASTERN REPORTER

[5] 5. The evidence was sufficient to sup-
port the verdict, and the judge did not
abuse his discretion in refusing a new
trial.

Judgment affirmed. All the Justices con-
cur,

FLOYD v. STATE.
No.. 11233.

Supreme Court of Georgia.
June 12, 1936.

Syllabus by Editorial Staff.

1. Criminal law €=639(3)

Solicitor general in judicial circuit of
state is not disqualified to appear before
court of different judicial circuit and as-
sist solicitor general of such circuit in mur-
der prosecution, notwithstanding that so-
licitor general of such circuit is not indis-
posed or disqualified or absent from cir-
cuit and such assistant is not requisitioned
by presiding judge (Code 1933, §§ 24-2908,
24-2913, Const. art. 6, § 11, par. 2).

2. Criminal law @=554

In prosecution for murder by striking
deceased with automobile wherein defendant
pleaded not guilty and introduced no evi-
dence, statement to jury, not under oath,
that automobile ran over something and
that occupant got out of car and that it
was reported to defendant that deceased was
in road and was dead, held not admission
that such person was alive when automo
bile passed over him or that automobile had
killed him,

3. Criminal law ©=300
Homicide €=152'/2
Plea of not guilty raised issue whether
defendant had committed the alleged homl-
cide and placed burden of proof on state.

4. Criminal law €=761 (12)

In prosecution for murder by striking
deceased with automobile, wherein defend-
ant pleaded not guilty and introduced no
evidence, charge that defendant insisted that
killing was result of misfortune or accident
held reversible error as tending to lead jury
to believe that defendant admitted homicide
and sought to excuse or justify it

G=For other cases sce same tocle and KEY NUMBEM iu all Key Number Digests and Indexes

FLOYD vy.

srape TOR 2! Ga.’ 557

186 S.E.

Error from Superior Court, ‘Laurens |
County; J. L. Kent, Judge.

Walter Floyd was ‘convicted of murder, :
and he brings error.

Reversed.

L. F, Watson and R. Earl Camp, both of
Dublin, for plaintiff in error.

J. A. Merritt, Sol. Gen., of Dublin, M. J.
Yeomans, Atty. Gen., and B. D. Murphy
and Geo. L. Goode, Asst. Attys. Gen., for
the State.

ATKINSON, Justice.

Walter Floyd, Columbus Williams, and
Thomas Flurry were jointly indicted for the
murder of Ottis Davidson by striking him
with a certain blunt instrument to the jurors
unknown, and an automobile, inflicting a
wound dausing death. On separate trial
Floyd was found guilty, the jury recom-
mending that he be sentenced to serve in the
penitentiary the rest of his life. The de-
fendant’s motion for new trial, based on
general and special grounds, was overruled,
and he excepted.

{1] 1. An attorney at law who is solici-
tor general in a judicial circuit of this state
is not disqualified by the provisions of the
Code 1933, §§ 2-3902 (Const. art. 6, § 11,
par. 2), 24-2908, 24-2913 (relating to du-
ties of solicitor general and duty of presid-
ing judge when the solicitor general is
absent or disqualified), or by any other law,
to appear before the courts of a different
judicial circuit at the request of the prose-
cution, on a trial for murder, and assist’
the solicitor general of the latter circuit
in the prosecution, notwithstanding the last-
mentioned officer is not indisposed, or dis-
qualified from interest or relationship, or
absent from the circuit, and such assistant
is not requisitioned by the presiding judge.
The judge did not err in allowing the at-
torney to participate in the prosecution.

[2-4] 2. The defendant entered a plea
of not guilty. He did not introduce evi-
dence. In his statement before the jury,
not under oath, he said that in driving his
automobite at night with two companions
“we run up on something in the road. We

had one light and it was dim, and we ran
right up on it, and none of us didn’t know
what it was, and we ran right on over it.
Just as I ran over it’ * * * I said, ‘What

- was that?’ and the other boy said, ‘I don’t

know.’ I stopped and I said, ‘I am going to
back back and see what it was. I went to

‘backing back, and Flurry raised up and

pulled out a match and said, ‘I will see’
about that time. I had got back in about
four or five feet of him, and he jumped out
and struck the match. I looked back, but I

» still couldn’t see what it was. He came back

and said it was Mr. Ottis Davidson, and
says, ‘He is dead.’”” This was not an admis-
sion that Mr, Davidson was alive when the
automobile passed over him, or that the au-
tomobile killed him. Under the plea of not
guilty, the fact of homicide committed by
the defendant was put in issue; the burden
of proof being upon the state. Consequent-
ly it was erroneous to charge the jury, “It
is insisted by the defendant in this case
that the killing was the result of misfortune
or accident,” and to follow this charge with
a statement of the law on that subject.
Such an instruction would tend to lead the
jury to believe that the defendant admitted
the homicide and sought to excuse or justi-
fy it. It was confusing and prejudicial to

the defendant on one of the most material.

issues in the case.

3. Special ground 3 of the motion for
new trial was merely elaborative of the gen-
eral grounds. The fourth ground complains
of the charge to the jury in its entirety,
and generally on omissions to charge the
law on the defendant’s contentions, and is
too indefinite to present any question for
decision.

4. As there will be a reversal on the
ground indicated in the second division, and
the question of disqualification of jurors
will probably not arise on another trial, no
ruling will be made on these grounds. As
there will be a reversal, no ruling will be
made on the sufficiency of the evidence to
support the verdict.

Judgment reversed,

All the Justices concur,


66 SOUTHEASTERN 243 (appeal) & 67 SOUIHEASTERN 857 (hab. corp.)
BURGE, Sete athe tock farmer, hanced at Atlanta, Ga., foray 155 4920.

"Atlanta, Ga, May 17, 1909-Georre Burge, an Atlanta business man, entered his wife's
wvedroom some time after midnirht, stabbed the sleeping wman to death and seriously wounde
his young stepson, The trasedy was witnessed by Lilly May Burre, 1?-yiar-old daughter, of
the couple who was roused by the mother's screams and ran Lo the door of her bedroom, The
little girl says that Burge stabbed his wife avain and arain, the wman meanwhile crying
for mercy. After killing his wife, Buree began stabbine his little stepson. Thinking he

. had killed his stepson, the little sirl says Burge leaned over his dead wife and kissed

his own son; Leonard Burge,.15-months, who was asleep by the slain mother's side, Burge
then fled, but was captured about 8 o'clock thismornine. He denies killing his wife, and
gays he can prove an alibi, So bitter is the feeling against Burge that there werec ries
of 'Lynch him$' as he wastaken through the streets to prison. lhe dead woman was a young
widow when 2urge married her. He was.insanely jealous of her, and some time ago the
couple separated. The only known motive for the deed is jealousy." TENNSSSHAN, Nashville.
femessee, May 18, 1909 (224.)

"At llell:5y Friday morning Sheriff Wheeler Mangum sprung the lever of the gallows trap on
the 5th floor of the Fulton County Jail, sending George Burge, convicted and confessed wife
murderer to eternity. Burge's confession was made to a jail officer threehours before the
execution took place. It was a ghastly recital of a revolting murder, The drop of 6 feet
failed bo break the neck of the mrderer who was pronounced dead 13 minutes and 25 seconds
later by County Physician Paul McDonald, ‘Surge did not confess on the gallows to the mur-
der of his wife, Mrs. Lottie Burge, but 3 hours before the execution hecalled in Deputy
Sheriff W. J. Gilleland, who had lived in the same community with him for years. To Mr
Gilleland he gave the full details of the crime and contrabpyto the expectations of the
county officials he did not implicate another party, so it is said, After the confession
to Mr, Gilleland, Burge is aaid to have repeated the details of the murder to Sheriff Man-
cum, Burge entered the gallowsroom from the death cell at 11835 o'clock, He was walking
by the side of Sheriff Mangum with.a firm step. At no time did he show indications of
breaking down, As he started to mount the steps,to the gallows he stopped and shook-hands—

with several men, wio were standing near. As he reached the top of the flight of steps,

he was met by JudgeRobert L, Ropers, his attorney. The two men embraced, both men shedding
tears, Burge then turned to Sheriff Mangum and, placing his hands on his shoulders, saids
'¥ou have been kind, very kind, to me, ‘We will met in heaven, where I am going,' 'I will
be there, George,' said the sheriff, in a voice tremling with emotion, Leaning against
the banisters of the stairway with his face buried in his hands, Burge heard the sheriff
reading the legal history of the case and the order of execution, The Rev. D. S, Edenfield,

offered a short prayer. The condemned man, raising his right hand to heaven, said: 'God's
will be done; not mine,’ Turning again to the sheriff, he again held out his hand which was

ters and-newspaper men, Just after the drop, the sheriff rushed down the steps and stood at
the side of Dr. McDonald, who held his hand on the dying man's pulse, Immediately after
Burge was officially pronounced dead by Dr. McDonald, the body was cut down and taken to
Patterson's undertaking .establishment, where it was prepared for burial. Burge was visited
shortly ‘before the execution by a Mrs, Calhoun, of Macon, who had come to tell the man
goodbye. ihe order admitting her came from Gov, Brown, She was accompanied by the mur-
derer's younger brother, J. M. Burge. The heart-broken mother, who has visited theman |

almost daily sincehis conviction, did not.come to the jail Friday morning, as she was too

‘weak to leave her bed. Burge during the morning saw a number of officials and ministers,

but requested the sheriff not to admit newspaper mene The execution of the man was marked
only by the stillness of the room, He made no attempt to struggle in any way and was as
calm as any man in the crowded room, Despite the fact that his neck was not broken and he
was conscious for probably 3 minutesy his body did not sway or m ove in any way, but re-.
mained perfectly still until it was cut down by the undertakers . Mr, E enficld, in bia “—

" el
raver, stated that Burge had expressed the wish that the execution would serve
other a to a Christina life. According to t e statements of thejailers, during the Last

Cet terug h Sora C4YU [1908 CI fAA / urge FO AT IRON Fung . f$Aly

hours Burge continually spoke of the regret which he felt at a misspent life. He always

hoped that his fate, if not his life, might be of serkict to others in bringing them to

lead a better and more Christian life. After separating from her husband who had beaten

and abused her, Mrs. Lovie Burge lived in the early spring of 1909 in a house at 'Bland-

town! on the outskierts of Atlanta, near the Seaboard Air Line Shops. On the morning of

May 17, 1909, two or three hours before daylight, neighbors heard shrieks and screams from
the room where Mrs, Burge slept. Summoning aid, they entered the place, and found the woman
lying dead upon her bed, in a pool of blood, her thorat cut from ear-to-ear, with gashes on
herforehead, wrists and breast. Circumstantial evidence pointed to George Burge, thehusband,
and he was arrested the same morning in the house of a relative, For months previous, he
had beaten and cruelly treated his wife, and according to formal charges she had made, and
he had once been tried for wife-beating in the city court, though he was acquitted be-
cause Mrs, Burge prosecuted the case faint-heartedly, At a special term of the Fulton
Superior Court, held in May, 1909, over which Judge S. P, Gilbert of the Chattahoochee
Circuit presided for Judge L. S. Roan, Burge, was tried and fund guilty of the crime of
murder, without recommendation to mercy, On the 22nd day of June, 1909, he was sentenced
by Judge Gilbert to be executed July 22, 1909, Attorney Clinton P,. Thompson, Burge's lLaw-
yer appealed the case to the state supreme court and thereby staid the execution of the
first sentence, On the 17th day of November, 1909, the supreme court affirmed the action of
the superior court, and upon application of Solicitor ‘eneral C. D. Hill, theprisoner was
brought before Judge. -L. S. Roan, upon a writ of habeas corpus and wasresentenced to be

executed on the 7th day of January, 1910, 0n the 6th day of January, 1910, Sheriff Mangum

_ received an order from Gov, Brown, staying the execution jntil Jan, 2lst to give time for
an examination of an application for clemency which had meanwhile been filed, On the 15th
day: of Jamary, the governor granted a further stay until Jan, 28. .Meanwhile Attorney
“obert L, Rodgers, representing the aged mother of the condemned man, filed a writ of
habeas corpus on constitutional grounds. alleging that Burge's trial and conviction were
illegal because Judge Gibbert had no jurisdiction. The writ was heard before Judge W, D.
Ellis of the superior court and the application was denied, Attorney Rodgers then carried
the case to the supreme court on the habeas corpus phase, taking exception to Judge Ellis'
ruling. Pending a decision in this matter, Burge was granted a further respite by the
governor on recommendation of the prison commission, until the 25th of March, On March
2h, the supreme court had handed down no opinion so the.execution was staid again until
Friday,: April 15."

CONFESSION ; } |

"George Burge's confession, told before his execution, is as follows: 'I don't know how I
did the deed; how I nerved myself to it. You remember the trouble, which I had with my wife,
~how she had me arrested, charging wife beating, and we were otherwise estranged, I had never
thought of killing her until Sunday afternoon, The, Devil seemed to get in me and that night
I went to the house, The bed in which Frank Brittain was sleeping was pushed against the
door, It took me several minutes to push the bed away sufficiently to get in the poom, The
movement of the bed woke Frank, He jumped up and J seized him. Before God, I tried to

kill him, but couldn't do it. I had the razor - it was a razor, not a dagger = against the
lad's throat, but the Lord seemed with him, .I couldn't cut him, My wife was awakened by
the scuffle and turnine the boy loose, I made at her, slashing right, and left, When she
fell, I left her lying on the floor, kissed the baby and fled, It was like Frank said.

fle and his sister must have placed the body on the bed after I left the room, ‘hile it

has been said that I wasprevented from killing Frank by struggles, it is not true. The

little gash he had on-his forehead he received when he slupped my arm away from me."

The confession was given to Mr, Gilleland several hours before the execution, with Burge
making a last request that it not be given to thepublic," JOURNAL, Atlanta, Ga.y April

15, 1910 (1/5), Photo of Burge with his two little children, Leonard and Beatrice, also,

"..,One of the most dramatie inidents in connection with the leval fight occured in Janey
1910, when a desperate attempt was made by Burge, his lawyers and friends to saddle the
murder upon young Frank Brittain, a stepson of Mrs, Burge, who was brought from Birmingham,
Ala., to answer the charge at a preliminary hearing to be held before a justice of the
peacéess.." JOURNAL, Atlanta, April 1h, 1910 (9/6.)

"..eLeonard Burge, son of George and Mrs. Lovie Burge, is with relatives of latter; Bea-
trice, daughter of Mrs, Burge by a former marriage is at sam place; Burge!

aUgit purge : 4 ges 13-year-old
son by his first XMZKd wife is being care for bya relative of the latter....The rapeek that
he died of strarigulation was in error as his neck was broken; Dep. Gilliland explained
that confession was to be revealed after hope was abandoned,.." JOURNAL, 1-16-1910 ( 3/7.)

«?

- B-2 Columbus Ledaer-Enquirer, Columbus, Ga., Wednesday, December 8, 1993

Burger executed for °77 murder of Fort Stewart soldier

‘Associated Press

x: JACKSON, Ga. — Christopher Burger

was put to death Tuesday in Georgia’s

electric chair for the 1977 kidnapping,

robbery and murder of a fellow Fort
- Stewart soldier.

The scheduled 7 p.m. execution was
delayed nearly three hours as the U.S.
Supreme Court restudied the case. The
justices announced their unanimous
decision to reject the request for a stay
at 8:53 p.m. Burger died at 9:51 p.m.

‘ The execution followed last-ditch ef-
forts by human rights groups that sought

stays from a Superior Court judge in
Jackson and the Georgia Supreme
Court. Both appeals were turned down
Tuesday.

Earlier in the day, the state parole
board had. denied clemency for Burger,
rejecting arguments that his life should
be spared because he was abused as a
child and was only 17 when he partici-
pated in the killing of Roger Honeycutt.

The U.S. Supreme Court had rejected
Burger’s appeals in October, but Correc-
tions Department spokesman Andy
Bowen said the justices reviewed the

_ case Tuesday to see if there were

“extenuating circumstances that might
warrant further action by them.”

All nine justices voted to allow the
execution to continue, but Justice Harry
Blackmun, writing separately, repeated
his earlier contention that Burger’s
attorneys failed to represent him effec-
tively and did not pursue evidence of
Burger’s “diminished mental capacity”
and abuse as a child.

Tuesday’s appeals were filed by a
coalition of human rights groups includ-
ing Amnesty International. _Burger’s
principal attorney, Andrea Young, said
she did not participate.

Burger, 33, was the 17th person put to
death in Georgia since the state re
sumed executions in 1983. He requested
a last meal of unleavened bread and
water at the Georgia Diagnostic and
Classification Center in Jackson, about
an hour south of Atlanta, where the
electric chair is housed.

Honeycutt, a Fort Stewart soldier
moonlighting as a taxi driver, was
kidnapped, robbed, sodomized and
locked in the trunk of his cab Sept. 4,
1977. It was then driven into a water-
filled pit near Jesup in southeast
Georgia.

Burger’s codefendant, Thomas Ste-
vens, was executed June 28 for the
crime.

Burger and Stevens, then 20, also were
stationed at Fort Stewart.

The Board of Pardons and Paroles
refused to commute Burger’s sentence
Tuesday morning. On Monday, the
board heard arguments from Burger’s
family and attorneys, who said his age
at the time of the crime should .be
considered.

Spokesman Mike Light said the board
was not swayed by Burger’s abusive
childhood.


BURGE R, Christopher, wh, elec. Gas (Wayne), December 7, 1993 &
JSIEVENS, Thomas Dean, wh, elec. GA (Wayne), June 28, 1993

; "Christopher Burger |
dies in electric chair

ASSOCIATED PRESS

Jackson, Ga. —_ ‘Christopher. ‘al
Burger was put to death in Geor- |
gia’s electric chair-Tuesday night “
for the 1977 kidnapping, robbery. -
and murder of a fellow Fort Stew-. .

art soldier.

: Burger’s execution, schedule
for 7 p.m., was carried out about "
9:35 p.m. after the U.S. Supreme :
Court ordered a two-hour delay to. *
review the case and then refused to _
halt the execution. Earlier in the’ |
day, the state parole board denied
clemency for Burger, rejecting ar-”’
guments that he should be spared “
because he was abused as a child *.

and was only 17 when he partici- "|

_ pated in the killing of Roger Hon- és
eycutt.

“T’d like to say I’m sorry to any-~

‘body and everybody I’ve ever |
hurt,” Burger said in his final |.
statement. “Please forgive me.” ‘|

JOURNAL/CONSTITUTION, Atlanta, GA 12/8/1993 (1)

o~ —_—-e~

R > > EXECUTION: : Georgia electrocuted Christopher bisa
r, 34, for the.1977 kidnapping, robbery, Sodo Soh rae
oa of fellow Fort Stewart soldier Roger Honey

fendant Thomas Stevens, 36, was executed June 28.

USA TODAY, December 8, 1993 (A3-1)

- SeEXWT ATLANTA JCURNALZCONETITUTION

*

D6 Thursday, December 2, 1993 sceaxe

a!

GEORGIAN BRIE

She a,
mr
¢

Ex-soldier’s execution set in’77 slaying

ATLANTA: 'A former Fort Stewart soldier who killed a Wayne
County cab driver in 1977 is scheduled to die in the electric chair next
Tuesday at 7 p.m. The Georgia Department of Corrections on Tues-

day ordered the execution of Christopher Burger, 33, who was a 17-

year-old stationed at the South Georgia base at the time of the slay- —

ing. This is the fourth time the state has ordered the death sentence
carried out in the 15 years he has been on death row. Burger and
Thomas Dean Stevens, a fellow Fort Stewart soldier, were convicted
in 1978 of the slaying of Roger E. Honeycutt. The two robbed Honey-
cutt at knifepoint, sodomized him, locked him in the trunk of his cab

and rolled the car into a water-filled pit. Honeycutt drowned. Stevens
was executed in June. But Amnesty International and other anti-

death penalty groups are seeking clemency for Burger:, .

~


Burge, ?; murdered Richard Altman of Crawford Co., GA, on 21
Nov. 1849. Fled scene of murder and has not been Gaught.

Augusta (GA) Constitutionalist, Wed., 28 Nov. 1849

"A barbarous murder was committed at a wagon yard in the outs
skirts of our city on Wednesday noaght last, between nine and
ten o'clock. The murderer is by the name of Burge, who came
here from Marion County, with a load of cotton. The person
murdered is Richard Altman, of Crawford County, who came here
for the purpose of hauling goods. They had stopped at different
wagon yards, and were unacquainted with each other. After dark
Altman visited the yard where Burge had stopped. A half dollar
which he had in higshand was knocked out of it by someone, in
jest, which he supposed to be picksd up by a negro of Burge's,
of which he accused him, but did not succeed in finding it.

No difficulty of consequence occurred, and altman returned to
the yard where he had stopped, entered a building and commenced
to eat his supper. At this moment Burge came up to the door
with two or three other wagoners, and his negro, and called

to Altman to come out and he would flog him. Altman stopped
near the door, where he received a very severe stab in the
fight breast from Burge, of which he died almost instantly.
Burge fled immediately to his wagon; took one of the h6rses

and rode off before any sffort could be made to arrest him.
Both the parties, we understand, were young men, without fam-
ilies. Both parties were entirely sober at the time, and there
is good reason to believe that the murderer was urged on by his
comrades."

From Macon (GA) Messenger, 21 Nov. 1849

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GEORGIA EXECUTES
KILLER OF SOLDIER

Supreme Court Unanimously
Rejects an Appeal Filed by
Human Rights Groups

JACKSON, Ga., Dec. 8 (AP) — A
man who kidnapped and killed a fellow
soldier in 1977 was put to death in
Georgia’s electric chair Tuesday night
after the Supreme Court rejected a
final appeal.

The execution of Christopher Bur-
ger, 33, was delayed nearly three hours
as the Court restudied his case. Mr.
Burger died at 9:51 P.M., about an hour
after the Court unanimously rejected a
request for a stay.

A Superior Court judge in Jackson
and the Georgia Supreme Court had
rejected similar requests earlier Tues-

||day, and the state parole board turned
down a request for clemency.

Human rights groups had argued
that Mr. Burger should be spared be-
cause he was abused as a child and was
only 17 when he participated in the
killing of Roger Honeycutt, a fellow
soldier at Fort Stewart. Seventeen is
the youngest allowed age for execution
under Georgia law.

Robbed and Then Drowned
Mr. Honeycutt, who was moonlight-
ing as a taxi driver, was kidnapped,
robbed, sodomized and locked in the
trunk of his taxi on Sept. 4, 1977. The

‘car was then driven into a water-filled

pit in southeast Georgia.

Mr. Burger’s co-defendant, Thomas
Stevens, was executed on June 28. Mr.
Stevens, who was 20 at the time of the
killing, was also stationed at Fort Stew-
art.

The United States Supreme Court
had rejected Mr. Burger’s appeals in
October, but a spokesman for the state
Corrections Department, Andy Bowen,
said the Justices reviewed the case on
Tuesday to see if there were ‘‘extenuat-
ing circumstances that might warrant
further action by them.”

All nine Justices voted to allow the
execution to continue, but Justice Har-
ry A. Blackmun, writing separately,
repeated his contention that Mr. Bur-
ger’s lawyers had failed. to represent
him effectively and did not pursue evi-
dence of his ‘‘diminished mental ca-
pacity” and abuse as a child.

Tuesday’s appeals were filed by a
coalition of human rights groups, in-
cluding Amnesty International. Mr.
Burger’s principal lawyer, Andrea
Young, said she did not participate.

Quotation of the Day,
page 2, every day,

in the News Summary.
The New York Times.

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THE ATLANTA CONSTITUTIO

KKK

TUESDAY, DECEMBER 18,

By Bill Torpy
Staff writer

A federal appeals court
| Stalled tonight’s scheduled exe-
cution of convicted killer Chris-
topher Burger pending a deci-
sion on whether he had a right to
be examined by a psychiatrist
before he- was sentenced to
death.

A three-judge panel of the
U.S. Court of Appeals 11th Cir-
cuit voted 2-1 Monday to stay the
execution until the full 11-judge
panel hears a similar case.

The court’s decision followed
a closed hearing Monday before
the state Board of Pardons and
Paroles in which Burger’s moth-
er, Betty Foster, made an emo-
‘tional appeal to have her son’s
sentence commuted to life im-
prisonment. The board canceled
plans to rule on the petition after
the 11th Circuit ruling.

Mrs. Foster said that Burger
suffered from repeated beatings
‘from her husbands and emotion-
al cruelty as a child. One of Bur-
. ger’s attorneys at the parole
‘board hearing was. Andrea
‘Young, daughter of former At-
lanta Mayor Andrew Young.

Mr. Young’s wife, Jean, and
representatives of Amnesty In-

ternational also made pleas for —

leniency based on Burger’s age
when the crime was committed.
Burger was 17 in 1977, when he
and Thomas Stevens murdered
Roger Honeycutt, a South Geor-
gia cab driver. After robbing and
sodomizing Mr. Honeycutt, the
two forced him into the trunk of
his car and pushed the automo-
bile into a water-filled pit.

The U.S. Supreme Court has
ruled that death penalty defen-
dants currently have the right to
a psychiatric review, but has not

Court stays Burger’s execution

Death must await ruling in Alabama case, 11th Circuit judges say

After Monday's hearing before the state Board of Pardons and Paroles,
a friend hugs Betty J. Foster (facing camera), mother of Christopher Bur-

said whether that right applies to
those already convicted.

In arguments Monday, attor-
ney Joseph Nursey argued that
the Wayne County jury that con-
victed Burger should have first
heard testimony about Burger’s
alleged mental illness and brain
damage.

A recent psychiatric evalua-
tion stated that prior to the mur-
der, Burger suffered from severe

Christopher
Burger

in 1977,
when the mur-
der was com-
mitted, he was
a 17-year-old
soldier.

psychiatric problems, hyperac-
tivity and a diminishing IQ.
Attorney General Michael J.

Joey ivansco/Staff

ger, while paroles board chairman Wayne Snow (far right) shakes hands
with Burger's stepfather, Marion Foster Sr.

Bowers said he would appeal
Burger’s stay of execution.

“This has dragged on long
enough,” Mr. Bowers said. Bur-
ger’s attorneys have pushed the
case once to the U.S. Supreme
Court, which upheld the state’s
right to execute someone who
was 17 years old at the time a
crime was committed.

The 11th Circuit panel said a
decision on the Burger case must

wait until the court takes up an
Alabama case in which a handi-
capped Alabama man was mur-
dered with an ax in 1979. The
man sentenced to death for the
crime later argued that his psy-
chiatric assessment was inade-
quate and was given to the jury
too late.

The 11th Circuit has not
scheduled a date to hear the Ala-
bama Case.

"BURGER, Christopher, Lf ae] —/ SPF

STEVENS, Thomas Dean, wh, elec. GA (Wayne) June 28, 1995 »

Convicted killer
to die tonight:
In electric chair

By Jingle Davis
STAFF WRITER

Bo

Be

If Thomas Dean Stevens is executed to-
night in Georgia’s electric chair, as scheduled,
his death will come nearly 16 years after the
gruesome slaying for which he is paying. —_

Stevens robbed: and: sodomized Roger E.
Honeycutt, then locked him in the trunk of a
taxi before rolling the car into a Wayne County
pond, said Brunswick circuit prosecutor Jolin
‘B. Johnson. . oi

Mr. Honeycutt drowned in the trunk. Ste-
vens and another man were convicted of
murder. ; aM

“They took the radio out of the taxi,
cranked [the car] up and drove it into the bér-
row pit,” said Mr. Johnson, who assisted in
prosecuting Stevens, then 20, and a fellow sol-

 dier, Christopher A. Burger, then 17. ee

At the time of the 1977 slaying, both men
were stationed at the nearby Fort Ste
Army post in Hinesville. | vs Be, Ps

Stevens’s execution is scheduled for
o’clock tonight at the Georgia Diagnostic and
Classification Center at Jackson. :

'« He was scheduled to be executed four pre-
vious times, but all were stayed. A Superigr
* Court judge denied a motion for a stay of exe-
cution late Thursday. ss ie
‘Stevens’s attorneys were preparing an ap-
peal to the Georgia Supreme Court. «3
Stevens and Burger decided to rob a cab-
driver after running out of money while drink-
_ ing at a bar. They broke into a mess hall on’the
sprawling Army post, stole a knife, then calteti
a cab to take them to the Savannah airporkto
meet an arriving friend. |
“Mr. Honeycutt, who was also stationed at
Fort Stewart, was moonlighting as a cab driyer
and he answered the call,” Mr. Johnson sax
On the way to the airport, Stevens heli a
knife to Mr. Honeycutt’s throat, forced him to
undress and sodomized him. Then the pair
robbed him, tied him up, locked him in the
trunk and pushed the cab into a water-filled
pit.

Stevens and Burger were later convictag gf
murder and sentenced to death. Burger’s exe-
cution has been stayed pending an appeal...
If Stevens’s sentence is carried out, heayil
become the 16th person to die in Georgia’s
electric chair since the state resumed execu-
tions in 1983. The last person executed “In

.

Georgia was Warren McCleskey, who was 3
“t,

to death almost two years ago for the. 1
‘ murder of a police officer.

.


No. A-471. Christopher A. Burger,
Applicant v Walter D. Zant,
Warden, Georgia Diagnostic
and Classification Center

December 7, 1993. The application
for stay of execution of sentence of
death, presented to Justice Kennedy
and by him referred to the Court, is
denied.

Justice Blackmun, statement re-
specting the denial of stay of execu-
tion. Today the Georgia Supreme
Court declined to set aside or to stay
Christopher Burger’s execution. Be-
cause that decision rests on adequate
and independent state grounds, it pre-
sents this Court with no basis on which
to grant relief. I write separately,
however, to reiterate my conviction
that Mr. Burger was denied the effec-
tive assistance of counsel during both
the guilt and sentencing phases of his
trial. See Burger v Kemp, 483 US 776,
796, 97 L Ed 2d 638, 107 S Ct 3114
(1987) (Blackmun, J., dissenting). His
lawyer’s direct conflict of interest pre-
vented him from representing Mr.
Burger effectively in plea negotiations
and on appeal. Just as egregiously, his
counsel inexplicably failed to investi-
gate and to present mitigating evi-
dence—evidence that would have
shown that 17-year-old Chris Burger
had a diminished mental capacity,
functioning at the level of a 12-year-
old child, and that the unspeakable
physical and psychological abuse he
suffered as a child left him a troubled
adolescent, with recurring psychologi-
cal problems. These shortcomings by
counsel, which were never remedied,

US Sepreme Cou St

MEMORANDUM CASES

leave me convinced that Mr. Burger’s
conviction, sentencing proceeding,
and appeal cannot “be relied on as
having produced a just result.” Strick-
land v Washington, 466 US 668, 686,
80 L Ed 2d 674, 104 S Ct 2052 (1984).

No. 93-643. Bessemer and Lake
Erie Railroad Company, Peti-
tioner v Republic Steel Corpo-
ration, et al.

December 10, 1993. The petition
for a writ of certiorari to the United
States Court of Appeals for the
Third Circuit as to Republic Steel
Corp. and Jones & Laughlin Steel
Corp. was dismissed today pursuant
to Rule 46.1 of this Court.

Same case below, 998 F2d 1144.

No. ——. Thomas Milford, et al.,
Petitioners v Nissan Motor Cor-
poration in U.S.A., et al.

December 13, 1993. The motion to
direct the Clerk to file a petition for
a writ of certiorari out of time is
denied.

589

@ urzer execule/ kee M3- Leng a— i


Clemency |
sought for
young killer

LAST-MINUTE PLEA: Chris-
topher Burger, who was :._
convicted of killing a ‘soldier
when he was 17, is set to be
executed Tuesday. ®

_ By Norma Wagner asi
‘ Staff writer mae eee
Attorneys for Christopher
Burger today will make an 11th-
hour attempt to save him from
becoming the first juvenile mur-
derer to die in Georgia’s electric
chair in 33 years. He
Attorney Andrea [#Young is
scheduled to file’@ clemency ap-
peal with the state:Board of Par-
dons and Paroles asking that
Burger's death sen ence be over-
turned because the jury;was not
told of the physicg -and:psycho-
logical abuse he%guffered as: a
child, = ge
Burger, now 30, is‘gcheduled
to die Tuesday at:?. p.m, for rob-
bing, sodomizing and murdering
a soldier moonlighting’as a cab-
driver 13 years aga in Hinesville.
“It’s the bast pecotige.” said
Atlanta attorney’ oseph‘Nursey,
who is assisting Ms, Young in the
case. “The parole board is’ the
only body that can listen to the

‘compassion and mercy;' that he
should be given a:life:sentence
instead of a death sentence.”
Also today, Amnesty Jnterna-
tional is holding a. news confer-
ence in front of its Wegt Peach-
tree Street office in hopes of but-
tressing Burger's appeal, «,
“The state of Georgia, which
has recently drawn worldwide
attention for winning the. oppor-

tunity to host the :1996,Qlympic

Games, is about to invite interna-
tional condemnation #fors its
“Scheduled execution of ajuvenile
offender on~Dec.. 8,” the’

" Says in a news rele; .
But Attorney $4

neral"*Mi-

chael J. Bowers is'short and di- “
rect when talking about Burger’s

scheduled execution, : BY ee”
“He raped and‘sodomized a
fellow soldier, robbed *@nd put

the man in the trunk of acar and

Please see MERC]
ye 4

ina:

_ evidence and determine, out of |

’

(18>

me © Stevens 7

t ; to,

in ed romAL.,, 2

: t off intova' borrow pit,”
Pe Bowers said.’‘Georgia law

ap and the United: States Constitu-

_ “tion pe ermit the imposition of the

© death’ ‘penal ty on | people who

~ were Eve at the time of the com-
‘| ‘mission of the crime. So he is not
ic ajuvenile under Georgia law.’”.

' More! the n 300 people from
“cere ‘Louisiana and Florida
_ have ‘signed petitions on Bur-
_ ger’s behalf. Previous attempts
- to have his’ death’sentence over-
e Pturned have failed, including one

“to the U. S.Supreme Court. ~~
ae The high court ruled in June
"1989 tl at the execution of juve-
_ nile criminals 16, and older does
not violate the Constitution’s ban
_ on cruel, and unusual punish-
. ment,The American Bar Associ-
~ ation and the American Civil Lib-
- erties Union called :the decision
_ barbaric and medieval, but many
~ law enforcement officials hailed
the ruling as sending out the
tight message tocriminals.
inp Ofsthe 37 states permitting
capital punishment. at that time,
zAS barred: imposing: \the death
penalty on anyone under age 18,
-, Burger: has survived three
scheduled. executions; in the 13
years he has been on death row.
He was) 17 and asoldier at Fort
_ Stewart. whe: 1 he and Thomas D,
20-year-old soldier,

bee decided oe rob a ee after

| ‘Mer ercy : Attor.
BP are kille

Christopher
Burger would be
the first juve-
nile murderer
executed in
‘Georgia in 33
years.

They stole a butcher knife
om a mess. hall at Fort Stewart

1d called a cab. The driver was
oger Honeycutt, a soldier earn-
g extra money in Hinesville.

They threatened Mr. Honey-

( itt with the knife, robbed him of

6 and sodomized him. They
cked him inthe trunk of his cab
id then»letthe cab roll into a
ater-filled pit near Jesup. Mr.
oneycutt drowned. Stevens’s
sath sentenceii is still on appeal.
Burger’ Ss. “attorneys argue in
hig clemency | brief that the jury

\ hich convicted him in 1977 was

t told of his Jnental illness and
‘ain damage, ‘According to a
ychiatric’ evaluation included
the appeal. ‘brief, Burger grew

|) with a “mentally disturbed
other. whose’ many husbands
used him! ‘mentally and physi-
lly “ and ’ introduced him to
‘ugs. : e's

The evaluation by psychia-
ist Dorothy O, ‘Lewis states that
irger suffered from malnutri-

' on and rickets as a child and
stained several head injuries

at began when he fell out of his .

ib at 15 monte. In early child-

hood, he fell through a heavy ;

plate- glass door. At 15 he was
kicked in the face by a horse.
During” his adolescence he al-

most . was electrocuted © after —
touching a live electri cal | cable

he was trying to fix. ‘

Throughout his “yt ning life,
the evaluation said,

Burger Suf:
fered from “severe. psychiatric ee

problems, hyperactivi rand a di- ‘

minishing IQ.

Dr. Lewis concludes Fegtcs
report that Burger is different

now: “At this time, having both

matured and eliminated drugs i
from his system, he is a very dif- _

ferent person from the confused,

uncontrolled, intoxicated adoles- iv
“the » ,

cent “who committed &
__ offense.” ; fad Ses
Mr.’ Bowers countered th that a

1977 pretrial mental’ evaluation

found Burger competent to stand ~
trial. He added that “the mental -
issue was not raised by Burger ©

ter the.age issue essentially: be-
came moot.” a ae ptt

' until 1987 — 10 years later — af- -

Victor’ Streib, “ay €leveland ;

‘State. University law: “professor t
and longtime opponent of capital «

punishment, said he considers it «©

“typical” that such a case would
come up in Georgia, because the
state has executed 42 juveniles,
almost twice as many asiany oth-
er state. eS: 1h4

Staff writer Elizabeth Coady
contributed to this article. ,

* 2S

a a ee Seer OP ger eo 4
é Pars .

» CONSTITUTION

MON. , DECEMBER Ag a

ip
wf

. spare al

ay af) ad
Hay, the! state Board 0

c/
a:
yt
sae

;

ney

week: before CHrigtmas for mu

aks

cab driver 13 years ago.’The

horr ible act, but there are'm:
5 ground s for copamuting the se:
ee Be i =

& Burger’ S childhood was.ai
Ir porn ae battered cl

aA

a4 dee then induc
to kick-him out tpt co house. In

ie we

ae me Brrects of this treatmen:
> Burger. seriously mentally ill;
Fi elath reduced hisIQ from :

2 : Tentally retarded’ Ina ‘state \ v
ai didden,.to execute the mental;

_ Burger was. a. 17- year-ol
ioned ‘at Fort Stewart when h
‘the influence of Tom Stevens, t!
‘night of heavy drinking, Stev:
t at they Tob a taxicab driver.

‘drove the cab, Stevens sexually
‘driver i in the back seat, then ti:
im in in the trunk. Although
the testimony of ; a third party, !

: edt to Stevens’ Ss wish to kill the (

8, BI ty. OTF Oe

Jay Smith Fs & Ron Martin, 3
°ublisher a Editor’* ~ S&S
ee " i sah? ee
ennis Berry » John w. Walter Jr. . Tom Teepen =.
President pos bfeneaine Editor Editorial Page| EC ditor eS
<3 ye James M, Co» Chairman 1950-57 -

“as ae

a
’ Christopher
> executed the
dering a.taxi-
aurder was.a
e than ample
ence to life in

ehtmard is
ld, subjected
iysical abuse.
yunched? ‘and
everal times.
: tortured him.
litler, fed him
-d his mother
seventh grade

was to render
epeated head
» when he: ‘was
the. time the
Ww borderline

retarded, eo

soldier ta- :

came under
on 20. After a
1S ‘suggested
Vhile Burger
assaulted, tl

according to
urger object-
‘iver, he ulti-

-- James M. Cox Jr., Chairman'1957-74

mately drove the ab into a apond whe z the

driver was drowned.

Burger’s history of abuse >and *ental § i.
tus was never brought up in his trial. In an
ironic racial twist, a black attorney i in Indiana
who had been his Big Brother offered to come
to J esup at his own expense to.testify on Bur-
ger’s behalf. But the court- -appointed lawyer
turned thumbs down, saying that a Wayne -
County jury would never believe the testimo-
ny of a black man, even given ‘on behalf a a
white defendant. a SB

In 1989, four justices of ihe U. Ss. Stance
Court agreed that, because of the ae
of his legal representation, Babee
a new trial. oY,

Quite apart from the specifics. of his.c case,
Burger would be the first person to be exe-
cuted in Georgia for an act committed as aju-
venile since the death penalty, was re-estab-
lished. Seventeen is in fact the cutoff age for
capital punishment in Georgia. But it’s worth
noting that a University of Georgia poll taken
a few years ago showed that Georgians by a
nearly 2-1 margin oppose the’ |
for anyone who commits a crime ‘under. the

; oe

age of 18. a) as
Christopher _ Burger - was - alrigsts to

young and is almost too mentally retarded to

even be considered for the death penalty, His

- plea for a new ‘trial lost by a single: yote in the

U.S. Supreme Court. He. feels. remorse -for '
what he did and understands he has a huge

debt to pay to society. But. surely. this. hid-

eously abused man does not need to pay with
his life. a fe ee .

ne re a tnd

d to die for the 1977 drowning of Roger
Honeycutt in Wayne County, Honeycutt was moonlighting as a
‘axl driver when hé was killed.

RR SEO ES g pi tek,

‘wig ‘Whe Atlanta Iuurnal AND CONSTITUTION

WED., OCTOBER 10, 1990

tik


The NATIONAL EXECUTION ALERT NETWORK. is a project
of the National Coalition to Abolish the Death Penalty
For more information, coniact: Pamela Rutter, NCADP,
1325 G St. NW, Lower Level B. Washington DC 20005 (202) 347-2411
PEACENET ACCESS CODE--ABOLITION

ALERT 90-9 DECEMBER 12,1990

**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**
. GEORGIA 18 DECEMBER 1990 ELECTROCUTION

CHRISTOPHER BURGER, (White), age 30 1as been on death row since July 19 1979, He .was convicted of the
kidnapping/robbery/rape/murder of a whit: male. His, ¢0-defendant Thomas Stevens also received a*death sentence.
At the time of the crime, Chris Burger ha:| been in. ‘tHe U,S: Army, stationed at Fort Stewart, 'Georgia for just 8
months. Burger and Stevens, both privates, hailed \a’ ‘eab: ‘to go to the airport to pick up fellow private James
_ Botsford. Once on the road, the cab driver was robbed at knife-point, his clothes taken, he was tied; and forced to
perform oral sex on Stevens. The driver \as then put in the trunk of the cab.

Burger and Stevens proceeded to vick up Botsford, whom they told of the robbery. Botsford promised not |
to notify the authorities, and Burger and ‘\tevens agreed to drop him at the base.

After dropping Botsford off, Burg: r and Stevens drove to a. pond in Wayne County. There Burger put the
car in drive, and jumped out, allowing it 1» enter the pond. The cab driver, still in the trunk, drowned. A week
“later, Botsford notified the police, and Bw ger and Stevens were arrested.

Testimony at the trial confirmed that Stevens, rather than Burger, was primarily responsible for the plan to
kidnap the cab driver, for the physical ab:ise, and decision to kill the victim. Stevens was 20 years old at the time
of the crime. Chris Burger was 17.

Chris Burger is mentally ill, and suffers from organic brain damage from severe abuse as a child.

Burger was born in December 195). His mother, who was only 16 when Chris was born, and who was
herself a battered child, suffered from chr nic, long standing psychiatric problems that ultimately led to her
voluntary institutionalization.

Throughout his childhood, Chris suffered regular beatings from his mother and father. His mother, Betty,
suffered from severe bouts of depression, 1efusing to go out and afraid to let her children out. Absorbed in her own
mental illness, Betty was unable to care a:lequately for her four children. As an infant, Chris was hospitalized twice
with high fevers and respiratory problems ;

At an early age, Chris displayed difficulties ledrning and hyperactivity. Despite concern expressed by school
‘teachers and others, Chris’ mother did not seek help for her son. She remembers, in fact, locking him in the
‘bathroom to keep herself from killing him in her own rage. |

In 1967, Chris’ mother and father were divorced. Chris was shuttled back and forth between both abusive
parents. The beatings continued. Chris’ father beat him so hard that his nose was broken several times. When
Chris was with his mother, her boyfriend took care of the abuse, kicking and punching him. Family services in
Georgia threatened to remove Chris and his siblings from Betty’s care, but did not intervene until 1972.

By 1975, Chris was drinking heavily, as well as taking drugs. When he was 15, he tried to commit suicide,
with his mother’s assistance. He was trea'ed in an emergency room and released.

In addition to the extraordinary abuse Burger suffered at the hands of his parents, Chris suffered several
severe head injuries when he was young.

**when he was 15 months old, Christopher fell from his crib on his head. He was unconscious for
15-20 minutes, but received no medical cae.

**In 1972 he was hit in the temple by a block of ice and unconscious for 13 hours. After this injury,
he began to have dizzy spells and headaches which continue today.

**In 1975, Burger was thrown from a horse. His foot caught in the stirrup and was dragged several
hundred yards. Chris was unconscious and bleeding from his nose and mouth when he was rushed to the hospital.
1s In 1976, when Chris was in a min >r car wreck and taken inte custody at a local juvenile facility, his mother
“refused to pick him up. Juvenile authorities contacted his father who was unwilling to give him a home. He
petitioned juvenile court and had his son declared ungovernable in the spring of 1976. As soon as Chris reached his
17th birthday, his father signed permissio:: for him to join the U.S. Army, which he did in January 1977, just 8
months before the crime was committed.

The jury that sentenced Chris Bu» ger to death heard no testimony regarding his severe physical abuse, head
trauma or family history. A psychological evaluation of Chris at the time of his trial failed to turn up clear signs of
organic brain damage and mental illness.

Most recent examinations by a ne irologist and other experts have exposed the extent of Chris Burger’s
mental illness and brain damage. Experts believe that this illness contributed to his early hyperactivity, his inability
to concentrate on school work, his impuls vity and his difficulty controlling his temper.

In addition, one neurologist belie: es that Chris’ mental illness is the cause of his substantial mood and
thought disorders and additionally causes him to hallucinate.

The United States is one of only “ countries which have put teenagers to death in the last two decades.
TAKE ACTION, CONTACT: Please Send O: e Postcard and Telephone the Pardon Board:

Board of Pardons & Paro e

Floyd Memorial Bldg. 5th Floor , “*Let’the Pardon Board know

2 Martin Luther King Jr. Dr SE we'll start a boycott for the ’96

Atlanta GA 30334 , Olympics, and the eyes of the world.

(404) 656-5703 FAX (404) 551-8502 will be watching them unless they stop
the killing.

There have been 142 executions in the United tates since the reinstatement of the death penalty in 1976.

“en,

tf

—

BURGER, Christopher, Georgia.

i

fic ; a RE er iia aan eerr son A csi :
One execution OK’: .
‘4 a oe | + ee A ig gat an "ta

sae

gnother is

- WASHINGTON (AP) — The

runk of a
4 f ; ‘ @ i td
tes, over two dissent-

an, oe the “‘Can-

i c
{ ‘Timothy. His execution is
; ehh,

‘O'Bryan Wad asked the
.« Supreme Court. to overturn his
state court Conviction, without
first seeking help from a federal
: trial judge and a federal appeals
. court. Such+manuevers are rare.
Justices William J. Brennan
and Thurgood Marshall, who op-
, pose capital punishment under all
on cif€umstances, voted to set aside
O’Bryan’s death sentence, _
In the:.ease of Christopher
Burger of Georgia, the court or-
dered a delay in his scheduled

Tuesday execution. Burger was

Vahey ees aS yh eae

convicted of killing a taxi driver
~ Seven years ago when he was a
17-year-old soldier. RRS | 5
The court ordered Georgia authors,
seul ce @uthorities to keep Burger alive -

until it considers
-/-

meh als

_ taxi part-time:

\nifused to let Ronald +

granting full re-
view to his latest formal appeal.

Sd
ig REAR ie ae Snipe RR SPRY
Se le Ae cult bide phase XB Hee «sith Senge Mee Ri ae i un)

F fb as Py Bee
A Woh AM 7a

delayed ~

That could take weeks,
Burger, along with another - i

Soldier then stationed at Fort i
Stewart, was convicted in the 1977." 3%)
Slaying of Roger Honeycutt, 25, a = J
Fort Stewart Soldier who-drove a . the

- Police”Said; Honeycutt was rob-.

bed and, while Still alive, Stuffed |
into the trunk of his taxi. The cab .
was driven into a water-filled pit,
and Honeycutt drowned. .. : ne,

The Supreme Court never has«.
decided whether imposing the -

LOOSA NEws

_and unusual punishment.

taxpayer must pay a penalty be-:

‘Cause a tax-preparer fails to file*
his. client’s rs amy

84 THE ‘TUSCA

missing
—Said it would decide ‘which
court people may turn to when’
federal regulators reject their re-'
quests to suspend a nuclear power
plant’s license. tee :
Agreed to decide whether ...b Mien nent ae
Songwriters, and their Pid che Pp RAN ats REN
entitled to royalties ~.”

24 Monday, March 26, 1

heirs are es
from original works even after’

terminating copyrights, ahs J
,
2 4 wie ee CAR
ees 7 |

BURGER, Christopher -C+})-

1A-T-199 35

V Thomas Dean, wh, elec. GA (Wayne) June 28, 1993

Court upholds |f

_ death penalty
for ex-soldier

in’?vd slaying

Fri-
. Supreme Court on
pees the death pensny Aa
chloe, Bree, 2 oe
ier
Seine of another aie”
ssocaltefting as a Hinesville
| pe A and another solar wore
used of causing Roger Hon ie |
ae after’ robbing him, woe:
to nude and locking him ih i
‘a rat the cab, and then Jen
, atest roll into a water-filled p 3
ses | had been scheduled a
die Tn eedteia’s antennae’ Y
on an indezinite
pete Feeoth US. — fusee
‘Avant, Edentield of hee agli
" The following year, fase
erturned the death sen Ste #
te ding that the state had al
pa 1 .* capital punishment ; rn
mn el because during sen en
bight? were improperly ins ;
ed.

However, in 1983 the. 11th U.S.
Circuit Court of Appeals reversed

Edenfield’s ruling and reinstated the
death penalty.

In 1984, less than
Burger wa’ schedu

ed, the U.S. Supreme Court granted
him an indefinite Stay of execution.

Burger’s co-defendant in the
murder case was Thomas D. Ste-

vens, whose death penalty is still on
appeal.

According to court records, Bur-
ger, who was

18 at the time, and
Stevens had been drinking at a bar
when the

y ran out of money and de-
cided to rob a cabdriver.

They stole a butcher knife from
.the camp mess hall at Fort Stewart
and called a cab, which happened to
be driven by Honeycutt. They
threatened Honeycutt with the knife,
robbed him of $16, stripped and
sodomized him, locked him in the
trunk and then drove him to the
esup pit, court records showed.

Full arguments were heard on

Burger’s appeal before- the U.S. Su-

preme Court on March 30. Georgia
Attorney Mike

Bowers said a new
execution date has not been set.

Bowers said his office was rep-
resented before the Supreme Court
by Senior Assistant Attorney Gener-
al William Hill, the first black to

argue a case before the high court
on behalf of the state.

a day before
led to be execut-


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Killer seeking to escape ‘chair’
ATLANTA (AP) — USS. Supreme Court Justice Lewis Powell is
considering the appeal of Christopher A. Burger, who is scheduled
to die in Georgia’s electric chair Monday. |
Burger’s attorneys asked Powell for a stay of exeuction after a
Superior Court judge in Wayne County ordered last week that the
execution be carried out between noon Monday and noon Sept. 16.
Department of Corrections spokesman Fred Steeple said Correc-
tions Commissioner David Evans set the Monday date. No time was
announced. : hes
Burger is on death row at the Georgia Diagnostic and Classifica-
tion Center in Jackson for the Sept. 4, 1977, slaying of Roger Honey-
cutt. 2
Honeycutt; a Fort Stewart soldier and part-time taxi driver, was'
found drowned in the trunk of his cab in a pit of water. At the time
of the slaying, Burger also was stationed at. Fort Stewart.
A rt

ieee hie eae aie eo Ott a Lien Natyrainiet oy Silane, A PNP ype rt pcos

-

. 12 Friday, September 6, 1985 THE TUSCALOOSA NEWS

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S¥e Usays

Texas and Georgia Each Puts a Murderer to Death

By The Associated Press

Markham Duff-Smith

Associated Press, 1987

After confessing at the last moment,
a man who had been accused of having
his mother and three other relatives
killed to obtain the family fortune was
executed by injection Tuesday in Tex-
as. He had been convicted in his, moth-
er’s death.

In Georgia, a former serviceman
died in the electric chair late Monday

‘for killing a fellow soldier by putting

him in the trunk of a taxi and pushing
the car into a watery pit.

In Huntsville, Tex., Markham Duff-
Smith, 46, cleared his conscience just
before he was executed. ‘‘I am the low
sinner of sinners,’’ he said as he lay on
a gurney, needles in his arms. “I am
responsible for the '75 and '79 cases.”

Mr. Duff-Smith was convicted of ar-

‘ ranging the murder of his adoptive

mother, Gertrude Duff-Smith Zabolio,
at her home in Houston’s exclusive
River Oaks neighborhood in 1975. He
was found guilty of paying $10,000 to

Neer

~

{Mes
aw)

Uouc, UY
@ | 2 W1Gds (BD

Allen Wayne Janecka to strangle Mrs.
Zabolio, 57, and make-her death look
like a suicide.

Squanders His Inheritance

The authorities said Mr. Duff-Smith
squandered his $90,000 inheritance and
in 1979 sought out Mr. Janecka again to
kill his adoptive sister, her husband
and their son so he could collect up to
$500,000 of their inheritance.

Mr. Duff-Smith, who got part of the
money, was charged but never tried in
the three slayings and had denied any
role in the crime until just before his
execution. :

- oe

Late Monday, the Supreme Court

‘unanimously refused to block his exe-

cution.

Mr. Janecka was convicted of mur-
der in the death of Mr. Duff-Smith’s
nephew, but the decision was reversed
on appeal and he is awaiting retrial.
Mr. Janecka has been indicted in the
slaying of Mrs. Zabolio.

In Georgia, Thomas Dean Stevens,
36, a former soldier who had been
stationed at Fort Stewart, was put to
death at the state prison at Jackson for
killing Roger Honeycutt, a soldier who
was moonlighting as a cab driver. Mr.
Honeycutt was robbed of $16, sodo-
mized and locked in his cab’s trunk. He
drowned when Mr. Stevens and. an-
other soldier pushed the car into the
pit.

The Supreme Court had rejected two
late-hour appeals.

The other soldier convicted in the
slaying, Christopher Burger, is await-
ing execution. _

Lawyers for Mr. Stevens had argued
that his life should be spared because
he was retarded. But Tommy Morris,
acting chairman of the Georgia Board
of Pardons and Paroles, said the board
gave little credence to claims of retar-
dation because earlier tests of Mr. Ste-
vens showed. no evidence of that.


Hig

A office Fi Pp .O. Box 1270 * Neduvlaia. CO 80466-1270 © 303-440-0913 International Secretariat * 1 Easton Street * London WC1X 8DJ England

UA 283/87 Death Penal ty 15 October 1987
USA (Georgia): Christopher Burger

Christopher Burger, white, now aged 27, is scheduled to be executed
between 21 and 28 October 1987.

He was convicted of the September 1977 murder of a taxi-driver. A
co-defendant in the case also received the death penalty. Burger was
aged 17 at the time of the crime.

On 26 June 1987 the US Supreme Court ruled by 5 to 4 to dismiss
Burger°s final appeal. Jit reserved judgement on the question of his
age at the time of the crime.

if this execution is carried out, Burger would become the first
juvenile offender to be executed in Georgia since 1954. Burger is
one of five prisoners on Georgia®s death row who was a minor (aged
under 18) at the time of the crime. Georgia?s capital punishment
statute SD es 17 as the minimum age at which capital punishmen

background information

A

A bill - House Bill 777 - now pending in the Georgia House Judiciary
Committee would, if passed, prohibit the execution of juvenile
offenders jn Georgia. It is expected to come before the state°s
General Assembly for voting in the next legislative session in mid-
January 1988.

The US Supreme Court wil! rule in the near future on the
constitutionality of executing juvenile offenders. It will hear oral
argument in the case of Thompson v Oklahoma on 9 November 1987. If
the court rules to prohibit Thompson°’s execution, it is likely that
other juventtes on death row across the country - some 35 in total -

would have their death sentences overturned.

The USA is one of only five countries known to Amnesty International
To have executed juvenile offenders since 1979. Out of more than
117,000 judicially sanctioned executions monitored by Amnesty
International in over 80 countries, only eight executions of juvenile
offenders took place. Three of these were carried out in the USA
between September 1985 and May 1986 (Charles Rumbaugh and Jay
Pinkerton in Texas and James Terry Roach in South Carolina). The
oTher countries known to have executed juveniles over this period
were Pakistan (two), Bangladesh, Barbados and Rwanda. (There were
also unconfirmed reports of executions of juveniles in Iran.)

Amnesty International is an independent worldwide movement working for the international protection of hurnan rights. It seeks the release of men and women
detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not used or advocated violence. These are
termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on behalf of such people detained without charge or

trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or punishment of all prisoners without reservation.

Recommended action: telegrams/telephone calls:

- asking that Christopher Burger®s sentence be commuted
- as a minimum measure of justice, asking that his execution be
stayed pending the US Supreme Court°s ruling in Thompson v Oklahoma.

Appeals to:

Georgia Board of Pardons and Paroles

Floyd Veterans Memorial Building, 5th floor east

2 Martin Luther King Jr. Drive SE
Atlanta, GA 30334

(Telegrams: Board Pardons Paroles, Atlanta GA30334

(telephone: (404) 656 5703/5651)

Copies to:

The Hon Joe Frank Harris
Governor

tate Capitol
Atlanta, GA 30334

The Hon Jim Martin

Georgia House of Representatives
State Capitol

Atlanta, GA350334

(Jim Martin ts the author of House Bill 777 )

Please send appeals immediately. Please check with the Colorado office
weekdays between 9:00 AM and 6:00 PM Mountain Time if sending appeals after

November 15, 1987

() Please take action as soon as you receive this Urgent Ac-
tion appeal. Carefully read the recommended action. If
possible, send a telegram or airmail letter immediately to
one or more of the addresses given. Other letters can be
sent afterwards.

() Telegrams and letters should be brief and courteous.
Stress that your concern for human rights is not in any
way politically partisan. Refer to relevant provisions in
international law, such as the United Nations Universal
Declaration of Human Rights:

Article 3 -"Everyone has the right to life, liberty,
and the security of person."

Article 5 -"No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punish-
ment."

Article 9 -"No one shall be subject to arbitrary arrest,
detention or exile."

() The name of Amnesty International may be used, although
letters written in a private or professional capacity are of-
ten more effective.

(J In Urgent Action cases, AI has to act rapidly to prevent
the ill-treatment of prisoners. An appeal is issued when AI
believes it has received reliable and accurate information
in such cases. It is not always possible to verify all details

independently and in some instances the situation outlined
in the appeal may change. Urgent Action participants are
always notified of any significant new information.

(J Information about the alleged connection of any person with
an orgatization which is banned in their country is provid-
ed as information only and should not be included in ap-
peals.

(1) Correct salutations include: Dear Sir - for local authorities,
prison commanders, police chiefs: Your Honor - for judges;
Dear Admiral, General, Captain, etc. - for military officers;
Your Excellency - for most minister-level officials; in clo-
sing you can use Yours Sincerely and Respectfully for any
authority.

(1) Send your appeals in English unless you are fluent with the
language.

0) Copies. of any replies received from government authorities
should be sent immediately to the Colorado office. If appro-
priate, thank the official who has replied and ask to be
kept informed about the case.

C) Postage Costs: airmail letters cost 44¢ a page (} 0z.) to
most countries; aerogrammes are 36¢ each; airmail postcards
cost 33¢ to most countries; full-rate telegrams cost approxi-
mately 31¢ a word including address, text and signature.
Mail with colorful stamps may not reach its destinatior +


re Sty

‘| internationall

« P.O. Box 1270 » Nederland, CO 80466-1270 * 303-440-0913 International Secretariat * 1 Easton Street » London WC1X 8DJ England

tie ae

\ office

16 October 1987
Further Information on UA 283/87 (15 October i987) -
Death Penal ty

USA (Georgia): Christopher Burger

Christopher Burger, white, aged 27, has received a stay of execution.
He was scheduled to be executed between 21 and 28 October 1987.

Christopher Burger was convicted of the September 1977 murder of a
taxi-driver when he was aged 17.

No further action is required at present. Thank you to everyone who
sent appeals.

Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the release of men and women
detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not used or advocated violence. These are
termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on behalf of such people detained without charge or
‘trial. It opposes the death penalty and torture or other cruei, inhuman or degrading treatment or punishment of all prisoners without reservation. -

BURGER, CHristopher —C¥ /o¢ 7-/9Y 4

STEVEMS. Typgas Dean, wh, elec GA (Wayne) June 28, 1993

1076 968 FEDERAL REPORTER, 2d SERIES

x Thomas Dean STEVENS,
Petitioner—-Appellant,
Vv.

Walter D. ZANT, Warden’Georgia
Diagnostic and Classification
Center, Respondent-Appellee.

No. 91-8670.

United States Court of Appeals,
Eleventh Circuit.

July 31, 1992.

After the Georgia Supreme Court re-
manded defendant’s original conviction for
capital murder for resentencing hearing,
242 Ga. 34, 247 S.E.2d 838, defendant was
again sentenced to death. | Sentence. was
affirmed on appeal, 245 Ga. 588, 266 S.E.2d
194. Defendant sought federal habeas re-
lief. The United States District Court for
the Southern District of Georgia, No. CV
291-009, B. Avant Edenfield, Chief. Judge,
denied petition, and defendant appealed.
The Court of Appeals, Fay, Circuit Judge,
held that: (1) counsel was not ineffective in
failing to raise additional arguments in sup-
port of suppression of defendant’s confes-
sion; (2) counsel was not ineffective in
failing to present mitigating evidence at
death penalty hearing; (8) jury instruction
creating presumption of intent was consti-
tutionally infirm; (4) however, error was
harmless beyond reasonable doubt; (5) con-
sideration of certain claims was properly
denied for procedural default; and (6) ex-
clusion of declarations by clinical psycholo-

gist at habeas hearing was proper under
circumstances.

Affirmed.

1. Criminal Law ¢641.13(1, 7)

Two-pronged test for determining
whether counsel was constitutionally inef-
fective applies whether ineffectiveness
complained of occurred in defendant's trial
or subsequent adversarial sentencing pro-
ceeding. U.S.C.A. Const.Amend. 6.

2. Criminal Law €641.13(7)

In challenge to imposition of death sen-
tence based upon ineffective assistance of
counsel, prejudice prong of Strickland in-
quiry focuses on whether sentencer would
have otherwise concluded that balance of
aggravating and mitigating circumstances
did not warrant death. U.S.C.A. Const.
Amend. 6.

3. Criminal Law ¢641.13(6)

Trial counsel’s failure to raise certain
Suppression arguments was not ineffective
assistance of counsel where there was no
reasonable probability that either verdict or
sentence of death would have been any
different had arguments been raised.
U.S.C.A. Const.Amend. 6.

4. Criminal Law ¢641.13(7)

Although mitigating evidence may be
appropriate whenever defendant faces
death penalty, trial counsel’s failure to
present mitigating evidence is not per ‘se
ineffective assistance of counsel. US.C.A.
Const.Amend. 6. a

5. Criminal Law ¢641.13(7) .

Where mitigating evidence. is not
presented at death penalty sentencing hear-
ing for strategic reasons, great deference
will be given to counsel’s judgment in con-
sidering claim of ineffective assistance.
U.S.C.A. Const.Amend. 6.

6. Criminal Law ¢641.13(7)

In order to preclude‘ claim for ineffec-
tive assistance of counsel arising out of
attorney’s failure to present mitigating evi-
dence at a death penalty sentencing hear-
ing, attorney must have chosen not to
present mitigating evidence after having
investigated defendant’s background,’ and
that choice must have been reasonable un-
der circumstances. “U.S.C:A. Const:Amend.
7. Criminal Law ¢>641.13(7)

Counsel’s decision not to. call clinical
psychologist who had examined defendant
to testify during penalty phase of capital
murder case was within wide range of rea-
sonably effective professional assistance;
counsel feared that any benefit arising
from psychologist’s direct testimony would

4 be outweighed by potent
a from cross-examination.

Amend. 6.

8. Criminal Law 641.1
Counsel was not inef
to present evidence of def
background as mitigating
sentencing hearing in cap
counsel made efforts to h
bers present during hear
justified in believing the
family members would
available if they were nee
might not for tactical rei
family members even if t
cause of danger that mi
would backfire and reinf«
jury perceptions regardin
tent or relative culpa
Const.Amend. 6.

9. Criminal Law €778('

Homicide €286(1)

- Instruction .on issue c
murder case was consti
under charge, there was
hood that jurors would
clude that proof of an a
probable consequence of
sumptively prove beyond
that defendant intended
that proof of act having:
ble consequence of ass
would prove that defendz
and abet. U.S.C.A. Con:

10. Criminal Law 11’
Instructions raising
sumption having effect 0:
its burden of persuasion
doubt are subject to har
sis. U.S.C.A. Const.Am:

11. Criminal Law 11’

Error arising from |
instruction in capital m
had effect of shifting ;
issue of intent to defend
beyond reasonable .dout
considered by jury over
lished requisite intent r
defendant of malice mur:
infer from defendant’s
did not intend to kill vw


Georgia

| and: 79 cases,”

. er, .a-Fort Stewart soldier :was
electrocuted for killing a fellow,

z time to consider his case, but the;

2 executed
in Texas,

Associated Press

HUNTSVILLE, Texas — Sec-
_ onds before. a man was executed
by injection Tuesday, he confessed

. that he hired someone to murder
, his adoptive mother, -sister:and!
' other relatives. so he could inherit}
: the family fortune.. "
“Tam the low-sinner of sinners.” :
, Markham Duff-Smith,. 46, ‘said
while strapped:to a death cham-
' ber gurney with:needles in his}

: arms. “Iam responsible for the "15

In, Georgia:about an hour earli-

GR gy ee a ee ee eR ee et Rte eee

¢'Sacramento'Bee Final e Wednesday, June 30, 1993.”

soldier.by putting him in thet
_ trunk of a cab and pushing it into}

F a water-filled pit.

Thomas Dean Stevens, 36, wasi

* : executed for killing Roger Honey-!
_cutt in. 1977. Honeycutt . was}

__ Repiieatee as a.cab driver whent
. he. was robbed: of $16, sodomized
‘and drowned.

t

The appeals court delayed Ste-}
»vens’ execution for three hours’ tot
allow the U, S. Supreme Court}

high court refused.
Previously, Duff-Smith denied

shaving anything ito do. with thet}
.... Slayings of his: mother, Gertrude} |.
‘, ,Duff-Smith Zabolio in 1975, or his}
_ adoptive sister, Diana:-Wanstrath if)
_ her husband,. John, and their ag

month-old son, Kevin, in 1979.
_ Duff-Smith, ‘46, was convicted off

‘ "paying $10, 000 to Allen Wayne.
.'Janecka to kill his’ mother. andt-
' ‘ynake’ her death look like a ‘sui-

cide.. Janecka also wound up on}
death row, but his conviction was;
reversed by an appeals court and,

. he is awaiting a second trial.

Re ws ee
’

:
ry

,

* t.
3

i: Ada [Th
| VANE VXT'OOSI9 NVuANVS

rf

FSP

ute

STW C661 67 mmf “Aopen

‘Son is executed
| in mother’s death

\| HUNTSVILLE, TEXAS A man convicted
_ of arranging the murder of his wealthy
, adoptive mother so he could inherit her

estimated $500,000 estate was executed

_ Monday by lethal injection at the state
penitentiary here: .

Markham Duff-Smith, 46, was pro-
nounced dead at'10:16 p.m. PDT, state
penal spokesman Charles Brown said.

~ Brown said: that Duff-Smith in‘ his
‘final words admitted responsibility for

| the death of his mother and the later

killings of three other relatives.

Man gets chair for -
killing fellow soldier —

JACKSON, GA. A man was executed

Monday for killing a fellow Fort Stewart:
soldier in 1977 by locking him in the,
trunk of a car that was pushed into a"

water-filled pit.:

. Thomas Dean Stevens, 36, died in
the electric chair for killing Roger Ho-

neycutt, a soldier who was moonlighting

as a cab driver. Honeycutt was robbed of

‘| $16, sodomized and locked in the trunk’:
| of his cab. He drowned after Stevens and , [
| another man pushed the car into the pit.

Also convicted in‘ the case was anoth-
er soldier stationed at Fort Stewart,
Christopher Burger, whose execution

was stayed in 1990 by a federal appeals: |

court. His case remains on appeal.--


¥>
oOuS>

2 inmates executed

Thomas Dean Stevens, 36, was
put to death Monday at the state
prison in Jackson, Ga., for kill- —
ing Roger Honeycutt, a soldier
who was moonlighting as a cab
driver. He drowned when Ste-
vens and another man put him -

- into the trunk of hiscaband  —_ ,
pushed the car into a water-filled |
pit in 1977. got Ragga ee

In Huntsville, Texas, Mark-.
ham Duff-Smith, 46, was put to

‘death by injection early today for

_ arranging the murder of his
wealthy adoptive mother, Ger-
trude Duff-Smith Zabolio, in.
1975. ae ae

ees se oe

ZY 866i ‘62 ounf:‘Aepsen,  @ . eq OUseIy oul

Baan weesee ee

TIONS: Thomas Stevens, 36, was executed in Geor-
Sages chair for the 1977 murder of fellow soldier
Roger Honeycutt, who was moonlighting asa cab driver. In
Texas, Markham Duff-Smith, 46, died by. injection early to-
day for arranging the killing of his wealthy adoptive moth-
er, Gertrude Duff-Smith Zabolio in 1975. ee

ere Va 3A

USA TODAY « TUESDAY, JUNE 29, 1993+ 9

ress. nin eae

CV APilAhD ospurry URGE oy wm xt

$A ay hohe
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"> TUESDAY: JUNE 29, 1993

ies

» at-Fort Stewart, was put to’death |
iin: Jackson, Ga., for killing Roger
.. Honeycutt, a soldier who had-been |
-, moonlighting as a. cabdriver, in |
“1977 after robbing him. -." . ..*+}
-_. Duff-Smith, 46, was executed in
Huntsville, “Texas, for paying ‘am
other man $10,000 to strangle Ger:
trude Duff-Smith Zabolio, 57. in
1975. Duff-Smith inherited and
squandered $90,000..A Houston de-"
_-tective, Johnny Bonds, uncovered:

... the murder scheme by poring over
~ bank and telephone records. ae


eM Sapeeentiee -aouatantenniciasamanessainatencn-nishememenrt

2

id

B8 Wednesday, June 30, 1993 xxrsxx

LOCAL NEWS

_The Atlanta Journal / The Atlanta Constitution

Murderer went quietly to electric chair

Stevens executed

for cabdriver’s
death in 1977

By Bill Montgomery
STAFF WRITER

Jackson, Ga. — Thomas
Dean Stevens, a gaunt con-
demned murderer, went quietly

to Georgia’s electric chair Mon-.

day night for the 1977 robbery,
sodomy and murder of a soldier
moonlighting as a cabdriver.
‘The 36-year-old killer — who
died for murdering Roger E.

Honeycutt, 20, in Wayne County
— showed no emotion as he was

strapped in the chair, and de-
clined to make a statement.

Accepting a final prayer from

a priest who squeezed his hand,
Stevens died at 11:15 p.m.,
roughly 25 minutes after the U.S.

| Supreme Court denied a final ap-

peal for a stay. He had been “real
calm” during the day, visiting
with his attorneys and a half-sis-
ter, said prison spokesman Andy
Bowen.

Stevens was the 16th person
to die in-the electric chair since
the state resumed executions in

_ 1983.

Stevens had been scheduled
for execution at 7 p.m. The order
to delay for a final appeal to the
U.S. Supreme Court came late
Monday afternoon from the 11th
U.S. Circuit Court of Appeals in
Atlanta. The Supreme Court de-
nied the stay at 10:41 p.m.

Earlier Monday, two other

courts and a clemency panel re-
jected Stevens’s appeals.

~The Georgia Supreme Court
refused, on a 4-3 vote, to stop the

execution. A few minutes later,

the State Board of Pardons and
Paroles refused a clemency plea.

Then, U.S. District Judge B.

Avant Edenfield declined to in-

tervene.

‘The killing never stops’

Roughly an hour and a half
before the execution, about a
dozen anti-death penalty demon-

strators arrived here at the Geor- |

gia Diagnostic and Classification
Center, home to the state’s death
row, and collected in a pasture
within sight of the prison, about
40 miles southeast of Atlanta.

The men and women held
hands in a circle and bowed their
heads as they waited for the exe-
cution.

Mary Eastland, a _ spokes-
woman for the group, said, “We
are saddened by this continua-
tion of violence. It seems the kill-
ing never stops.”

For his last meal, Stevens
asked for nothing special. “I’ll
just have what everybody else
has,” the condemned man told
prison Officials. He ate the regu-

lar evening prison meal — spa-
ghetti with meat sauce, green
beans, rolls, iced tea and peach
cobbler.

At the time of the slaying, Ste-
vens was a 20-year-old soldier
from Anderson, Ind. Honeycutt
was robbed of $16, sodomized
and locked in the trunk of his
cab, which was then driven into a
water-filled pit in Wayne County,
where he drowned.

Also convicted in the case’
was another soldier stationed at
Fort Stewart, Christopher Bur-
ger, whose execution was stayed
in 1990 by a federal appeals
court. His case remains on
appeal.

“Tommy Stevens and Chris-
topher Burger should have been
executed at least 10 years ago,”
said Charlotte Honeycutt Lee of
Benson, N.C., the victim’s sister.
“Not only did they kill Roger,
they killed my mother because,.
she grieved herself to death.” |

Eran


1078

Susan V. Boleyn, State of Georgia Law
Dept., Atlanta, Ga., for respondent-appel-

lee.

Appeal from the United States District
Court for the Southern District of Georgia.

Before TJOFLAT, Chief Judge, FAY and

KRAVITCH, Circuit Judges.

FAY, Circuit Judge:

This case is an appeal from a denial of a
petition for a writ of habeas corpus. The
appellant, Thomas Dean Stevens, petitioned
the United States District Court for the
Southern District of Georgia pursuant to.
28 U.S.C. § 2254. That court denied the
appellant’s petition, concluding that the
nine claims raised did not warrant relief.
On appeal, Stevens argues that the district
court committed a variety of errors that
require reversal. For the reasons that fol-
low, we AFFIRM the denial of the petition

for writ of habeas corpus.

I. BACKGROUND
A. Factual History

. (1) The Murder

Roger Earl Honeycutt, an Army private
stationed at Fort Stewart, Georgia, was
driving a taxicab for the D & M Cab Com-
pany on the night of September 4, 1977.
Honeycutt often drove for D & M on nights
and weekends, but the fare he picked up on
that fateful night was not like his other
fares. That fare would cost him his life.

Appellant Thomas Dean Stevens and his
co-indictee, Christopher A. Burger, were
both servicemen stationed at Fort Stewart,
Georgia. On the night of September 4,
1977, these two men called for a Shuman
Company cab. The cabdriver that respond-
ed to their call, however, was accompanied
by a friend. The presence of two men in
the cab posed an obstacle to the plans
Stevens and Burger had for the cab, and
accordingly, Stevens and Burger did not

1. On the following night, Stevens and Burger
visited Botsford and asked him whether he had
said anything to anyone. When Botsford said
that he had not, Stevens and Burger told him

968 FEDERAL REPORTER, 2d SERIES

take the Shuman cab. Instead, they ea]
another cab company, D & M Cab.

Honeycutt responded to the
placed by Stevens and Burger, pickin
them up at Fort Stewart. No

and Burger brandished two
_ knife and a knife sharpening steel.
two soldiers soon commandeered Ho

forced Honeycutt to engage in acts of oral
and. anal sodomy. When Stevens was
through sodomizing Honeycutt, he and
Burger tied Honeycutt up with a micro-
phone cord and locked him in the taxicab’s
trunk. Stevens and Burger then proceeded
to the Savannah airport where they had
agreed to meet their friend and squad lead-
er, James Robert Botsford.

Botsford testified that after Stevens and
Burger picked him up at the airport, Ste-
vens recounted the events that had taken
place earlier that evening, including the
commandeering of the cab, the sodomizing
of Honeycutt, and the confining of the
bound Honeycutt within the trunk of the
cab. Botsford testified that Stevens and
Burger repeatedly called out to Honeycutt
and that Honeycutt responded from within
the car’s trunk. When Botsford asked
what Stevens and Burger planned to do
with the cabdriver, Stevens snickered,
“Maybe we should kill him.”

Botsford, understandably alarmed, tried
to persuade Stevens and Burger not to kill
Honeycutt. He asked Stevens and Burger
to free the cabdriver, telling them that he
would not mention what they had done if
they would only let the driver live. Be-
cause Stevens and Burger told him they
would let Honeycutt go, Botsford thought
that he had succeeded in getting them to
abandon the notion of murder. He there-

fore chose not to report Stevens and Burg-
er on that night.!

that they had freed Honeycutt and ditched the
taxicab. Although Stevens and Burger had ad-
mitted committing acts of theft, sodomy, and
abduction, Botsford did not go to the authorities

£

Second caf

t long after
leaving Fort Stewart, however, Steveng |

weapons—g

The
ney-
cutt’s cab and forced Honeycutt to give

them whatever money he carried. The
amount was less than $20. Stevens then
forced Honeycutt out of his clothes and
into the back seat of the cab. There, he

wey dropping Botsford

Stevens and Burg«
around in the stolen ta»
p where police office)
ricab at a convenience
r site. Two men we
taxi. Shortly thereafte
py drove to a borrov
they removed a CB
len taxicab and wiped th
am the vehicle. Burger t
sicab and drove it into t
sed within the trunk, Hon:

42) Stevens’ Statement

"
‘On September 12, 19
tates Army’s: Criminal In
(“CID”) arrested Ste
apprised of his rights, ©
hat he wished to speak to
ing a statement. Thr«
j military lawyer, Steven
CID that he did not

ement and that he did

On'the following evenii
srmined that jurisdicti
’s murder lay with civ
jilitary authorities, Stev
‘e transported to the
ectional Facility. |
transfer to the jurisdictio:
ivilian authorities, Steve:
mtitled to his military la
While in civilian custo:
read his Miranda :
ppears from the recor
esup and Wayne ©
ens had not given a
it is unclear wheth
on to believe that Ste
a lawyer and asked not
ens never mentioned
civilian authorities.
any event, the police
fo a room where they w
dtement that Burger h:
“to the CID.. That st:
oud to Burger in S

until after he learned that
en reported missing. R
words and the events that


STEVENS v. ZANT
Cite as 968 F.2d 1076 (11th Cir. 1992)

® After dropping Botsford off at Fort When the statemen
@ Stewart, Stevens and Burger. continued to
@ drive around in the stolen taxi. They drove The police stopped
Bm, to Jesup where police officers saw the D & _ interrupt, however,
@ M taxicab at a convenience store near the

7 . +
murder site. Two men were observed in

ee Burger drove to a borrow pit or pond.

a stolen taxicab and wiped their fingerprints
" from the vehicle. Burger then started the
FS taxicab and drove it into the pond. Con- thereafter made a

au. (2) Stevens’ Statement
i

On September 12, 1977, the United On January 26,

e sion (“CID”) arrested Stevens. After be-
® ing apprised of his rights, Stevens indicated On direct appeal,

a making a statement. Through an appoint- vacated his death
oq military lawyer, Stevens then informed in the jury charge

/ questioned.

y< On the following evening, after it was
‘determined that jurisdiction over Honey-
eutt’s murder lay with civilian rather than
military authorities, Stevens and Burger
were transported to the Wayne County
Correctional Facility. Because of the

(1980).
Within a few

entitled to his military lawyer. On December 29,

While in civilian custody, Stevens was

+

gain read his Miranda rig
t appears from the record that authorities - That petition,

in Jesup and Wayne County knew that
tevens had not given a statement to the
© CID, it is unclear whether they had any
reason to believe that Stevens had request- that dismissal.
ed a lawyer and asked not to be questioned.
‘Stevens never mentioned these requests to claims to federal

e civilian authorities. |

‘into a room where they were reviewing the
fystatement that Burger had previously giv- That petition, as

faloud to Burger in Stevens’ © presence.

st

until after he learned that a local cabdriver had
‘been reported missing. Remembering Stevens’
words and the events that Stevens had related,

@ the taxi. Shortly thereafter, Stevens and told that, if he so desired, h
statement after the police finished going

#© There, they removed a CB radio from the over Burger’s statement.
chose to make such a statement. He was

again read his Miranda rights, and he

W States Army’s Criminal Investigation Divi- County, Georgia convicte
tal murder and sentenced him to death.

In any event, the police brought Stevens U.S.C. § 2254 in the Un
Court for the: Southern District of Georgia.

1079

t depicted the murder

as Stevens’ idea, Stevens began to protest.

Stevens’ attempts to
telling Stevens that he

should remain quiet because he had not
wanted to speak earlier. Stevens was also

e could make a

Stevens in fact

statement that was in-

H fined within the trunk, Honeycutt drowned. troduced at his trial.

B. Procedural History

1978, a jury in Wayne
d Steveris of capi-

the Supreme Court of

that he wished to speak to a lawyer before Georgia affirmed Stevens’ conviction, but

sentence due to defects

_ Stevens v. State, 242

iG the CID that he did not wish to make a Ga. 34, 247 S.E.2d 838 (1978). A second
’ statement and that he did not wish to be sentencing trial was concluded on July 19,
1979, again imposing the death sentence.
This time, the Supreme Court of Georgia
affirmed the sentence. Stevens v. State,
245 Ga. 583, 266 S.E.2d 194, cert. denied,
449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 118

months, Stevens began

transfer to the jurisdiction and custody of what would become a series of collateral
civilian authorities, Stevens was NO longer attacks against his conviction and sentence.

1980, he filed his first

petition for a writ of habeas corpus in the

hts. Although Superior Court of Butts County, Georgia.
as later amended, was denied

on March 19, 1981. The Supreme Court of
Georgia then denied Stevens’ application
for a certificate of probable cause to appeal

On January 6, 1982, Stevens brought his

court, filing a petition for

a writ of habeas corpus pursuant to 28

ited States District

later amended, was dis-

en-to the CID. That statement was read missed without prejudice for failure to ex-
haust state remedies. Stevens v. Zant, 580

Botsford apparently decided that it was time to
contact the authorities.

RR eee ic ae

1080

F.Supp. 322, 329 (S.D.Ga.1984). Stevens
then returned to state court to exhaust his
state remedies.

On January 31, 1984, Stevens filed his
second state habeas petition in the Superior
Court of Butts County, Georgia. On Sep-
tember 10, 1984, that petition was dis-
missed. Although the Supreme Court of
Georgia later concluded that Stevens’ peti-
tion was not subject to dismissal, it af-
firmed the denial of habeas relief. Stevens
v. Kemp, 254 Ga. 228, 327 S.E.2d 185
(1985). The United States Supreme Court
later denied Stevens’ petition for a writ of
certiorari. Stevens v. Kemp, 475 US.
1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986).

On May 13, 1986, Stevens filed his sec-
ond federal habeas petition in the United
States District Court for the Southern Dis-
trict of Georgia. After some discovery, the
district court held an evidentiary hearing
on October 5, 1988. At that hearing, Ste-
vens was given leave to amend his petition
to include a Fifth Amendment claim. The
petition was later dismissed without preju-
dice, however, because Stevens had failed
to exhaust his state remedies on this new
Fifth Amendment claim.

On April 6, 1989, Stevens filed his third
petition for state habeas relief in the Supe-
rior Court of Butts County. Applying
0.C.G.A. § 9-14-51, that court dismissed
the petition as successive. When Stevens
applied for a certificate of probable cause,
the Supreme Court of Georgia denied the
request.

Stevens then returned to federal court.
On January 14, 1991, he filed the federal
habeas: petition that is the subject of this
appeal. On June 27, 1991, the district
court entered an order dismissing the peti-
tion. Stevens filed his notice of appeal
from that order on July 26, 1991, and we
granted Stevens a certificate of probable
cause to appeal.

II. DISCUSSION

On appeal, Stevens argues that the dis-
trict court committed a number of errors in
denying his latest federal petition for a
writ of habeas corpus. First, Stevens ar-
gues that the district court erred when it

968 FEDERAL REPORTER, 2d SERIES

concluded that his trial counsel was not
constitutionally ineffective. Stevens then
asserts that the district court committed
error by concluding that, although the
state trial court had committed a constitu-
tional error in charging the jury, the jury
charge was nonetheless harmless. Finally,
Stevens contends that the district court
erred by refusing to consider a new claim
brought under the Fifth and Fourteenth
Amendments and by not considering evi-
dence submitted on the ineffective assist-
ance of counsel claim.

A. Ineffective Assistance of Counsel

Stevens’ first argument.on appeal is that
the district court erred by concluding that
Stevens was not deprived of his Sixth
Amendment right to the effective assist-
ance of trial counsel. Stevens maintains
that his trial counsel, Robert Smith, was
constitutionally ineffective because he: “(i)
unreasonably failed to move to suppress
Stevens’ confession on the ground that it
was obtained in violation of Stevens’ rights
under the Fifth and Fourteenth Amend-
ments; and (ii) unreasonably. failed to
present evidence in mitigation of the sen-
tence, despite the existence and availability
of such evidence.” Brief of the Appellant
at 9.

In evaluating claims of ineffective assist-
ance of counsel, we must follow the two-
pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Under that test, the
defendant must show that “counsel made
errors so serious that counsel was not func-
tioning as the ‘counsel’ guaranteed the de-
fendant by the Sixth Amendment.” Jd. at
687, 104 S.Ct. at 2064. This initial inquiry
requires us to determine whether the per-
formance of Stevens’ trial counsel was
within the wide range of reasonably effec-
tive professional assistance. Jd. at 687-88,
104 S.Ct. at 2064-65. In performing this
inquiry, our review of counsel’s perform-
ance is highly deferential. Jd. at 689, 104
S.Ct. at 2065. In fact, we presume that
counsel’s performance was reasonably ef-
fective. Jd.

. The defendant must als:

_ative showing that ‘‘coun

go serious as to deprive t!
fair trial, a trial whose r
Id. at 687, 104 S.Ct. at 2°
dant must show that ther
probability that, but for c
sional errors, the result

would have been differe:
probability is a probabilit
dermine confidence in the
694, 104 S.Ct. at 2068.

[1,2] This . two-pron
analysis applies whethe
ness complained of occu
dant’s trial or in a subs«
sentencing proceeding.
S.Ct. at 2068-69. , Howe:
to the imposition of a di
prejudice prong of the ‘
focusses on whether “
would have concluded t!
aggravating and mitigat
did not warrant death.”

(1) Failure to Suppres

[3] According to Ste
should have moved to s
ment that Stevens gave
basis that the police in‘
after he requested cou
indicated that he did nc
tioned. Although Steve
moved to. suppress the
maintains that the legal
his counsel proceeded w
propriate. As a result, :

2. We express no opinion
such an argument. We r
additional issue“of impu
one sovereign (the Unit:
sovereign (Georgia) was |
Georgia law ‘enforcemen
know either that the U.S
military counsel for Steve
informed the Army that
interrogated. _

3. It seems counsel was 1
weakness inherent:in his
tree” argument,, See Un
486 F.2d 1042 (5th Cir.19°
-ing to assert Fifth Amen:
sonal), cert. denied, 415 |
39 L.Ed.2d 888 (1974);
35, 226 S.E.2d 581 (197¢

be outweighed by potential harm arising
from cross-examination. U.S.C.A. Const.
Amend. 6.

8. Criminal Law ¢641.13(7)

Counsel was not ineffective in failing
to present evidence of defendant’s troubled
background as mitigating evidence during
sentencing hearing in capital murder case;
counsel made efforts to have family mem-
bers present during hearing, was not un-
justified in believing that at least some
family members would be present and
available if they were needed in court, and
might not for tactical reasons have called
family members even if they appeared be-
cause of danger that mitigating evidence
would backfire and reinforce any negative
jury perceptions regarding defendant’s in-
tent or relative culpability. U.S.C.A.
Const.Amend. 6.

9. Criminal Law @778(6)

Homicide @286(1)

- Instruction on issue of intent in capital
murder case was constitutionally infirm;
under charge, there was reasonable likeli-
hood that jurors would erroneously con-
’ clude that proof of an act having natural
probable consequence of death would pre-
sumptively prove beyond reasonable doubt
that defendant intended to kill victim or
that proof of act having natural and proba-
ble consequence of assisting in murder

U.S.C.A. Const.Amend. 14.

i «10. Criminal Law @1172.2

‘oy. Instructions raising impermissible pre-
sumption having effect of relieving state of
» its burden of persuasion beyond reasonable

doubt are subject to harmless error analy-
sis. U.S.C.A. Const.Amend. 14.

11. Criminal Law 1172.2
Error arising from trial court’s intent
instruction in capital murder case, which

and abet.

issue of intent to defendant, was harmless
beyond reasonable doubt where evidence
considered by jury overwhelmingly estab-
lished requisite intent required to convict
defendant of malice murder; jury could not
infer from defendant’s confession that he
did not intend to kill victim, even if jury

STEVENS v. ZANT
Cite as 968 F.2d 1076 (11th Cir. 1992)

would prove that defendant intended to aid’

had effect of shifting state’s burden on.

1077

believed defendant’s version of events.
U.S.C.A. Const.Amend. 14.

12. Habeas Corpus 374, 765

Principles of res judicata will not nor-
mally bar federal habeas corpus review
simply because state courts have con-
sidered merits of legal claim or issue; how-
ever, if state has rule of res judicata which
precludes review of issues not previously
raised, utilization of res judicata label will
not render inoperative rule that noncompli-
ance with independent and adequate state
procedural requirements will normally pre-
clude federal habeas review of claim. 28
US.C.A. § 2254.

13. Habeas Corpus e374

Refusing to consider habeas corpus pe-
titioner’s Fifth and Fourteenth Amendment
claims on grounds of procedural default
before state court was proper where state
courts had not applied statute setting forth
State procedural requirements for state ha-
beas claims in inconsistent manner; statute
provided independent and adequate state
basis for procedurally denying considera-
tion of issues that petitioner. failed to raise
until his third state habeas petition, which
had been dismissed as successive, and was
adequate basis for finding of procedural
default in subsequent federal habeas pro-
ceedings. 0.C.G.A. § 9-14-51; U.S.C.A.
Const.Amends. 5, 14; 28 U.S.C.A. § 2254.

14. Habeas Corpus ¢712 -

Habeas court’s exclusion of declara-
tions from clinical psychologist for failure
to notify state of defendant’s intention to
introduce declarations. in lieu of witness’
testimony was proper, particularly where
declarations would have had minimal im-
pact upon defendant’s claim before. habeas
court, given state’s inability to respond to.
Statements ..made in declarations and fact
that declarations would have had minimal
impact on petitioner’s claims. 28 U.S.C.A:
§ 2254.

Steven G. Reade, Arnold and’ Porter,
Washington, D.C., John P. Batson, Augus-
ta, Ga., for petitioner-appellant.


1084
happened to Stevens. Stevens, however,
only provided his counsel with the names of
two family members: Bill Pence, his uncle,
and Terry Stevens, his brother.? Both Ste-
vens and his trial counsel telephoned Ste:
vens’ uncle and spoke to him ona number
of occasions. Counsel also spoke to ‘a man
whom he believed was Stevens’ brother
Terry.” He implored those relatives with
whom he spoke to come to Stevens’ trial.
Moreover, counsel continued ‘these conver-

sations with Stevens’ relatives: following’

the first trial and sentencing. From coun-
sel’s testimony at the habeas hearing in the
district court, it appears that counsel was
led to believe that at least some of Stevens’
relatives would be present in court; indeed,
counsel only learned shortly before the ini-
tial trial that none of Stevens’ relatives
would be present for the trial.’ Under
circumstances such as these, it seems that
counsel acted reasonably in his efforts to
obtain the in-court presence ‘of at least
some of Stevens’ family members. From
the interactions counsel had with Stevens
and his family. members, .we cannot con-
clude that counsel was unjustified in believ-
ing that at least some of Stevens’ family
members would be present and available if
they were needed in court.

Counsel nonetheless ~ testified that, even
if, members .of Stevens’ family had been
available during. the sentencing proceed-
ings, he might not have called them to
testify about Stevens or his past. As a
matter of- sentencing strategy, counsel
wanted to prevent the jury from concluding
that Stevens had conceded the validity of
the State’s arguments—that Stevens had
intended to kill Honeycutt. Counsel appar-
ently feared that the jury would see any
attempts to present mitigating evidence as
little more than Stevens’ attempt to offer
an excuse for his intent to kill Honeycutt.

9. Stevens insisted that his father, who was seri-
ously ill, not be contacted or told about the trial.
After the first trial, however, counsel did speak
to Stevens’ father.

10. Terry Stevens insists that he was never con-
tacted by trial counsel. ‘However, after observ-
ing Terry Stevens on the witness stand, the
district court found him lacking in credibility.

968 FEDERAL REPORTER, 2d SERIES

Counsel thus feared that presenting mi
gating evidence would backfire and rei
force any negative jury perceptions rega
ing Stevens’ intent or relative culpabil
Because Stevens’ case was submitted
the first jury on various theories and
cause that jury returned a general gu
verdict, it was not unreasonable for counse
to have maintained that Stevens’ intent an
relative culpability, even after convicti
remained below the level espoused by th
State. Moreover, because counsel had
served the difficulty with which the firs
sentencing jury had returned the death sen
tence, counsel believed it was sound strate:

tion of “risky” mitigating’ evidence and’to’
focus instead on the minimization of Ste-
vens’ role in the murder. Again, while
other attorneys could well dispute the pro-
priety of maintaining such a position dur-
ing the sentencing phase of a capital case,
we cannot conclude that counsel acted out’

‘side the wide range of reasonable profes

sional conduct.

B. Sékdetvoin Claim

(1) Constitutional Infirmity of the Jury
Instruction

[9] Relying on Sandstrom v. Montana,
442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39
(1979), and Francis v. Franklin, 471 US.
307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985),'
Stevens argues that his petition for writ of
habeas corpus should have been granted’
because the trial court’s jury instructions
raised an impermissible presumption re-
garding Stevens’ intent to kill Roger Ho-
neycutt. Stevens points to the following’
portion of the charge:

Every person is presumed to be of sound

mind and discretion. The acts of a per-

son of sound mind and discretion are
presumed to be the product of the per-

11. Counsel testified that “his people were com-
ing, and then we found out—I found out
through a phone call to me the day before or the
night before, or some time, that they were not
coming.” Tr. Evid. Hr’g at 68, Stevens v. Kemp,
No. CV-286-94 (S.D.Ga. Oct. 1988). The illness
afflicting Stevens’ father seems to have prevent-
ed the in-court presence of those family mem-
bers who were going to attend the trial.


as not
8
nMuavecu
gh the
ynstitu-
he jury
inally,
court
v claim
rteenth
ing evi-
assist-

sel

is that
ag that
; Sixth
assist-
intains
h, was
ie: “(i)
ippress
that it
. rights
\mend-
led
he
lability
pellant

assist-
1e two-
und v.
. 2052,
st, the
| made
t func-
the de-
Id.at
nquiry

STEVENS v. ZANT

1081

Cite as 968 F.2d 1076 (11th Cir. 1992)

The defendant must also make an affirm-
ative showing that “counsel’s errors were
so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.”
Id. at $87, 104 S.Ct. at 2064. “The defen-
dant must show that there is a reasonable
probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to un-
dermine confidence in the outcome.” Id. at
694, 104 S.Ct. at 2068.

, [1,2] This two-pronged Strickland
Bs analysis applies whether the ineffective-
" ness complained of occurred in the defen-
dant’s trial or in a subsequent adversarial
sentencing proceeding. Jd. at 695, 104
S.Ct. at 2068-69. However, in a challenge
to the imposition of a death sentence, the
prejudice prong of the Strickland inquiry
_ focusses on whether “the sentencer ...
- would have concluded that the balance of
aggravating and mitigating circumstances
did not warrant death.” Id.

(1) Failure to Suppress Statement

{3] According to Stevens, trial counsel
should have moved to suppress the state-
ment that Stevens gave to the police on the
basis that the police interrogated Stevens
after he requested counsel and after he
indicated that he did not wish to be ques-
tioned. Although Stevens’ counsel in fact
moved to suppress the statement, Stevens
maintains that the legal theory upon which
his counsel proceeded was completely inap-
propriate. As a result, Stevens claims that

2. We express no opinion on the actual merit of
such an argument. We note, however, that an
‘additional issue of imputing knowledge from
one sovereign (the United States) to another
sovereign (Georgia) was present. It seems that
Georgia law enforcement authorities did not
know either that the U.S. Army had appointed
military counsel for Stevens or that Stevens had
informed the Army that he. did not wish to be

interrogated.

3, It seems counsel was not even aware of the
« /weakness inherent in his “fruit of the poisonous
+ tree” argument. See United States v.. Dowdy,
486 F.2d 1042 (5th Cir.1973) (holding that stand-
_-ing to assert Fifth Amendment privilege is per-

39 L.Ed.2d-888 (1974); Lively v. State, 237 Ga.
35, 226 S.E.2d 581 (1976) (same).

sonal), cert. denied, 415 U.S. 992, 94 S.Ct. 1592,

the representation he received during both
the guilt and penalty phases of his trial
was constitutionally ineffective.

Although the district court found the
performance of Stevens’ trial counsel ade-
quate, it seems to us that counsel should
have been aware of cases such as United
States v. Jordan, 557 F.2d 1081, 1085 (5th
Cir.1977), United States v. McCain, 556
F.2d 258, 256 & n. 4 (5th Cir.1977), and
United States v. Priest, 409 F.2d 491, 493
(5th Cir.1969). Counsel.should also have
been aware that these cases provided a
legal basis within which to frame a tenable
argument seeking the suppression of Ste-
vens’ statement.? Accordingly, it was un-
necessary for counsel to have relied solely
on the argument that. Stevens’ statement
was the result of Burger’s involuntary
statement and, thus, suppressible as “fruit
of the poisonous tree.” * Without deciding
whether Stevens’ trial counsel failed to per-
form in a reasonably effective manner, we
do acknowledge that this. facet of Stevens’
ineffectiveness claim presents a rather sol-
id basis for arguing that counsel’s perform-
ance was outside the wide range of reason-
able professional assistance.‘

Even if we were to conclude that Ste-
vens’ lawyer did fail to provide reasonably
effective assistance, however, the failure to
raise certain suppression arguments would
not have affected the results of Stevens’
trial. ‘Similarly, actual suppression of Ste-
vens’ statement would not have made any
difference. The evidence which the State
presented was simply too strong.°

4. Yet, we are not convinced that it would have
been unsound strategy if defense counsel had
sought to introduce Stevens’ statement as excul-
patory evidence tending to prove that Stevens
lacked the intent to kill Honeycutt. Indeed, the
defense has invoked Stevens’ statement on nu-
merous occasions, from the guilt phase of Ste-
vens’ trial right through to this appeal.

5. Although we do not reach the merits of Ste-
- yens’ claim under ‘the Fifth and Fourteenth
- Amendments, see infra Section II(C)(1), the evi-
' “dence presented in this case would nonetheless
have caused us to conclude that the asserted
constitutional error was harmless beyond a rea-

sonable doubt.


cab. They obtained a knife and knife
sharpening steel with which to perpetrate

the planned robbery. When a Shuman
taxicab with an

Sponded to their call, they chose another
taxi. - According to Botsford’s testimony,
Stevens and Burger showed him the knife
and steel that they had uséd to comman-
deer the cab and rob Honeycutt, Stevens
told Botsford that he forced Honeycutt to
Strip, searched Honeycutt’s clothes for
money, and then threw the clothes out the
window of the cab. Stevens also told Bots-
ford how he Sexually assaulted Honeycutt
before tying him up with the microphone

been any different,

of his ineffectiveness claim.*

naked, in the taxicab’s trunk. Botsford
even heard the imprisoned Honeycutt re-
spond from within the trunk when Stevens
and Burger called out to him on a number

dence

[4-6] Stevens also argues, however,

Cause he did not present any mitigating
evidence during the penalty phase of the
trial. Although mitigating evidence may

: be appropriate whenever a defendant faces
from Stevens that Stevens thought Honey-

cutt should probably be killed. Botsford
thought he had Successfully Persuaded Ste- nied, — US. —, 112 S.Ct. 1516, 117
vens and Burger that they should not kill : ie

the’ cabdriver, but he ‘was wrong, ”

» After leaving Botsford at Fort Stewart,
Stevens and Burger were seen driving in
the area where the taxicab was eventually
- The taxicab was found deep with-
in.a pond in Wayne County. The knife and
steel were still in the area of the car where
Botsford had seen Stevens place them.
Honeycutt’s clothes were found - strewn
along the roads near Fort Stewart. The
CB radio from the taxicab was found in a
car - belonging to Christopher Burger’s
mother-in-law, Honeyeutt’s naked body

6. We ‘Similarly reject those contentions of inef.

S.Ct. 1099, 99 L.Bd.2q 262 (1988): Stanley
%. Zant, 697 F.2d 955, 961 (11th Cir.1983),

L.Ed.2d 638 (1987) (holding that tria] coun-
Sel was not ineffective despite failure to
Present any mitigating evidence). More-
Over, where mitigating evidence is not

waived his rights. See Tr. Evid. Hr’g at 117,
118, Stevens v. Kemp, No. CV-286-94 (S.D.Ga.
Oct. 1988), “[W]hen a defendant has given
“counsel. reason to: believe that pursuing certain
‘vinvestigations would be fruitless counsel's

“any failure to ‘fully investigate the statement
would have been’ harmless.”

Given this evidence, we simply do not
believe that the result of Stevens’ tria]
would have been any different if counse]
had moved to Suppress Stevens’ statement
on the basis that Stevens’ Fifth Amend-
ment rights were not respected. There is
certainly no reasonable Probability that ej-
ther the verdict or the sentence would have
Accordingly, we agree
with the district court’s conclusion that Ste-
vens was not entitled to relief on this facet

(2) Failure to Present Mitigating Evi-

that his tria] counsel was ineffective be-

sented for strategic ri
ence will be given to co
ee Clark v. Dugger, 83
Ith Cir.1987), cert. den
08 S.Ct. 1282, 99 L.E
ightbourne v. Dugger,
025 (11th Cir.1987) (“A
ot to present mitigating
\tical choice accorded a st
of correctness which is
lengeable.’ ”), cert. deni |
109 S.Ct. 329, 102 L.E
Nonetheless, the mere
“strategy” does not insu
© havior from review; an at
chosen not to present m:
after having investigatec
background, and that c
| ae been reasonable under t!
: See Lightbourne, 829 F.2.
we said in Horton v. Zan
of whether a decision wa:
Da question of fact..... E
“this tactic was reasonable
“ law, and we owe neither
4. nor the state court any «
© point.” 941 F.2d at 1462
Wainwright, 808 F.2d 141]
1987)).

[7] Although Stevens’

a clinical psychologist exa

fore trial, counsel chose

psychologist to testify du

ing phase of Stevens tri:
counsel’s testimony at his

‘the district court hearing.
ask Dr. Joseph W. O’Hai
ing either of Stevens’ twc
ceedings because counsel -
tial harm arising from t
examination of Dr. O’Hai
parently believed that suc
could outweigh any bene!
derived from -Dr. O’Ha
Specifically, Stevens’~coun
the State could turn Dr 0

7. It is this same fear that)k
not to submit evidence of ‘Bu
-profile or history. He believ
of such evidence, although
play into the hands. of the: |
argument that Burger was.]i
vens’ willing pawn.


presented for strategic reasons, great def-
erence will be given to counsel’s judgment.
See Clark v. Dugger, 834 F.2d 1561, 1568
(11th Cir.1987), cert. denied, 485 U.S. 982,
108 S.Ct. 1282, 99 L.Ed.2d 493 (1988);
Lightbourne v. Dugger, 829 F.2d 1012,
1025 (11th Cir.1987) (“A lawyer’s election
not to present mitigating evidence is a tac-
- tical choice accorded a strong presumption
of correctness which is ‘virtually unchal-
lengeable.’”), cert. denied, 488 U.S. 934,
109 S.Ct. 329, 102 L.Ed.2d 346 (1988).
Nonetheless, the mere incantation of
“strategy” does not insulate attorney be-
havior from review; an attorney must have
‘chosen not to present mitigating evidence
after having investigated the defendant’s
background, and that choice must have
been reasonable under the circumstances.
1 See Lightbourne, 829 F.2d at 1025-26. As

~~ we said in Horton v. Zant, “{tJhe question
of whether a decision was a tactical one is
a question of fact.... However, whether
this tactic was reasonable is a question of
law, and we owe neither the district court
nor the state court any deference on this
point.” 941 F.2d at 1462 (citing Bundy v.
Wainwright, 808 F.2d 1410, 1419 (11th Cir.
1987)).

[7] Although Stevens’ trial counsel had
a.clinical psychologist examine Stevens be-
fore trial, counsel chose not to ask that
psychologist to testify during the sentenc-
ing phase of Stevens’ trial. According to
_counsel’s testimony at his deposition and at
the district court hearing, counsel did not
ask Dr. Joseph W. O’Haire to testify dur-
ing either of Stevens’ two sentencing pro-
ceedings because counsel feared the poten-
] harm arising from the State’s cross-
examination of Dr. O’Haire. Counsel ap-
arently believed that such potential harm
could outweigh any benefit that could be
derived from Dr. O’Haire's testimony.
Specifically, Stevens’ counsel believed that
the State could turn Dr. O’Haire’s opinions

tis this same fear that led Stevens’ counsel
not to submit evidence of Burger’s psychological
profile or history. He believed the introduction
of such evidence, although mitigating, could
play into the hands of the prosecution and its
argument that Burger was little more than Ste-

STEVENS v. ZANT
Cite as 968 F.2d 1076 (11th Cir. 1992)

1083

against Stevens to portray Stevens as the
leader and mastermind of Honeycutt’s mur-
der and, thus, the more culpable of the two
defendants. Counsel believed the State
could accomplish this by focussing on cer-
tain conclusions reached by Dr. O’Haire,
such as the conclusion that Stevens often
felt he was “in charge” as he followed an
unknown force and the conclusion that Ste-
vens possessed a much higher I.Q. than
Burger. It is the fear of such potential
harm—not the belief that Dr. O’Haire’s
opinions were either inherently harmful to
Stevens or of no benefit—that ultimately
led counsel to decide against using Dr._
O’Haire.? Certainly, the record does not
reveal that counsel’s fears were either un-
founded or unreasonable. Although other
attorneys may have chosen to hazard the
perils of calling Dr. O’Haire to the witness
stand, we simply cannot conclude that
counsel’s judgment was outside the wide
range of reasonably effective professional
assistance. _ |

[8] We also conclude that counsel was
not ineffective for failing to present evi-
dence of Stevens’ troubled background.’
Trial counsel was undisputedly well ac-
quainted with Stevens’ past. He also rec-
ognized that evidence of that past could
generate appreciable sympathy from a
jury. Although counsel seriously con-
sidered presenting evidence of Stevens’
troubled past, counsel ultimately chose not
to present such evidence before either of
the juries that sentenced Stevens.*

Although counsel did not locate all of
Stevens’ relatives or have them testify
about Stevens and his past, we find that
counsel provided reasonably effective as-
sistance during Stevens’ sentencing. Coun-
sel spoke to Stevens about the importance
of getting Stevens’ relatives to appear in
court so that the jury could at least see
that there-were people who cared what

8. As an initial matter, we note that counsel
acted well within the bounds of reasonable rep-
resentation by not calling Stevens to testify
about his past. . Detailed prosecutorial inquiries
into. Stevens’ acts of sodomy could have been
highly prejudicial. ..

IFS STEVENS v. ZANT 1085

on the minimization of Ste”

_aining such a position’ dur-

e call to me the day before or the

Cite as 968 F.2d 1076 (11th Cir. 1992)

ea... chat presenting Mean, son’s will. A person of sound mind and  cused’s action is either the death of the
2 would backfire and i. discretion is presumed to intend the natu- victim or assistance in the victim’s murder.
‘ive Jury perceptions regat a a ral and probable consequences of his In this’ way, the challenged language
tent or relative’ culpabil it acts.... PORTS serves to “ ‘undermine the factfinder’s  re-
ns’ case’ was submi ‘to i _.. Intent is always a question for the sponsibility at trial, based om evidence: ad-
yn various theories ai bie ie jury, and is ordinarily-ascertained by acts duced by the State, to find the ultimate
- returned a “general | Pe | and conduct. Intent may be“shown in facts beyond a reasonable’ doubt.’” ~Jd.
ot unreasonable for cou . many ways, provided: the jury finds that (quoting Ulster County Court v.' Allen,
ned that Stevens’ inte oe it existed from the “evidence produced 442 U.S. 140; 156, 99°S.Ct. 2213, 2224, 60

‘lity, even after conviction) | before you. It may be inferred from the L.Ed.2d 777 (1979)). —
Rrcdetiipaccone! ; proven rae ae tae or by hares and | Although the challenged Portion of the
iculty with “which tha?#i conduct, or it 44 ry presumed when it’ jury charge directs this impermissible bur-
had fetuttied the death ia is the natural’ and necessary conse- en-shifting, we must still examine the jury
quences [sic] of the act. . charge as a whole before concluding our

prcesn’ pale a a aa Trial Tr. at 396-97, State v. Stevens, No. analysis. Jd. at 315, 318-19, 105 S.Ct. at
mitigaling’ evi Satine inal 77-1641 (Wayne County Super.Ct. Jan. 1971-72, 1973-74. Even when viewed as a
1978). whole, however, the charge given in this

he murder.’ Again: “while £ Under Sandstrom and Francis, a jury case continues to suffer from the problems
could well dispute the pro- - instruction creating a presumption of in- set forth in Francis. In short, there is a
tent violates the Due Process Clause of the reasonable likelihood that the charge will
Fourteenth Amendment when it directs lead jurors to erroneously conclude: (1)

rr ered ly esti “evidentiary presumptions ... that have that proof of acts having the natural and
ange of reasonable profes the effect of relieving the State of its bur- probable consequence of death would pre-
a Steet By rob wath den of persuasion beyond a reasonable sumptively prove beyond a reasonable
WeSwcs stare Ee doubt of every essential element of a doubt that Stevens intended-to kill Honey-

C bes! Fe hee crime.” Francis, 471 U.S. at 318, 105 S.Ct. cutt, and (2) that proof of acts having the
: at 1970. That is, the constitutional viola- natural and probable consequence of assist-
tion occurs when the presumption imper- ing in murder would presumptively prove
missibly shifts the burden of persuasion beyond a reasonable doubt that Stevens

onal infirmity of the Ju ry

n

on Sandstrom v. Montana, from the prosecution to the accused. The intended to aid and abet in the murder of
9 S.Ct. 2450, 61 L.Ed.2d 39° i mere fact that the presumption may be Honeycutt. Thus, the constitutional infir-
neis v. Franklin, 471 US. rebutted does not cure this constitutional mity of this instruction cannot be remedied
965, 85 L.Ed.2d 344 (1985), infirmity. Jd. at 317, 105 S.Ct. at 1972-73. simply by examining the infirm language in

that his petition for writ of

should have been granted —
al court’s jury instructions
ermissible presumption re-

As the district court pointed out in its the context of the full instruction.

order denying the petition for writ of habe-
as corpus, the challenged portion of the | (2) Harmless Error Analysis

s’ intent to kill Roger Ho jury instruction in this case is nearly identi- [10] Sandstrom errors are nonetheless
‘ns points to the following Bo ' cal to the charge found unconstitutional in subject to the harmless error analysis of
charge: & Francis, 471 USS. at 311, 105 S.Ct. at 1969. Chapman v. California, 386 U.S. 18, 87
is presumed to be of sound Like the Francis instruction, this charge is § Ct, 824, 17 L.Ed.2d 705 (1967). Rose v.
cretion.’ The acts of a' pe @ ; constitutionally infirm because it was cast Clark, 478 U.S. 570, 106 S.Ct. 3101, 92
1 mind and discretion are — in the language of command, id. at 316, |, Fd.2d 460 (1986). Such errors require a
be the product of the per = 105 S.Ct. at 1972, directing the jury to court to determine “whether it appears ‘be-

. : presume either an intent to kill from acts yond a reasonable doubt that the error
Fied thet "this: perple wore Seay having the natural and probable conse- ¢omplained of did not contribute to the

we found out—I found out : quence of death or an intent to aid and abet verdict obtained’” Yates v. Evatt, —

- some time, that they were not in murder from acts having the natural and [j.§, —_. 111 S.Ct. 1884, 1892, 114 L.Ed.2d
vid. Hr’g at 68, Stevens v. Kemp, probable consequence of assisting a mur- 439 (1991) (quoting Chapman, 386 U.S. at
(S.D.Ga. Oct. 1988). The illness der. See id. The charge thus shifts the 24, 87 S.Ct. at 828).

is’ father seems to have prevent: burden of persuasion on the element of

presence of ‘those family mem-

going to attend the trial. intent away from the State where the natu- {11] In Yates, the Supreme Court de-

ral and probable consequence of the ac- scribed the nature of the harmless error

1086

analysis which must be applied to Sand-
strom errors:

To say that an error did not contribute to
the verdict is ... to find that error unim-
portant in relation to everything else the
jury considered on the issue in question,
as revealed in the record. Thus, to say
that an instruction to apply an unconsti-
tutional presumption did not contribute
to the verdict is to make a judgment
about the significance of the presump-
tion to reasonable jurors, when measured
against the other evidence considered by

those jurors independently of the pre-
sumption.

111 S.Ct. at 1893. The Court then set forth
the two distinct Steps that a reviewing
court must follow in performing that analy-
sis}? . .
The first step set forth in Yates requires
a court to “ask what evidence the jury
actually considered in reaching its verdict.”
Id. The court must then analyze the jury
instructions, applying “that customary pre-
sumption that jurors follow instructions
and, specifically, that they consider rele-
vant evidence on a point in issue when they
are told to do so.” Jd. The. court then
enters the second step of the Yates analy-
sis, weighing the probative force of the
evidence actually considered by the jury
against “the probative force of the pre-
sumption standing alone.” Jd.

In recognizing the situations where
Sandstrom errors may be harmless, the
pre- Yates decisions of this circuit have stat-
ed the following:

In applying harmless error analysis to
Sandstrom violations, this court has
identified two situations where the harm-
less error doctrine can be invoked: (1)
where the erroneous instruction was ap-

12. Although we acknowledge that the Supreme
Court has disapproved of some of the language
used in Yates v. Evatt, see Estelle v. McGuire, —
U.S. ——, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d
385 (1991), we also conclude that Yates contin-
ues to guide the harmless error analysis applica-
ble to Sandstrom errors.

Estelle criticized the “reasonable juror” lan-
guage that Yates had used in determining
whether an ambiguous jury charge was constitu-
tionally erroneous. Estelle also affirmed that a
reviewing court should not use the “reasonable

968 FEDERAL REPORTER, 2d SERIES

plied to an element of the crime that w;
not at issue in the trial, or (2) where

evidence as to the defendant’s guilt we
overwhelming.

Bowen v. Kemp, 832 F.2d 546, 548 (11t

Cir.1987). (en bane), cert. denied, 485 U
940, 108 S.Ct. 1120, 99 L.Ed.2d 281. an
cert. denied, 485 U.S. 970, 108 S.Ct. 124
99 L.Ed.2d 445 (1988); see-also Stephens 4
Kemp, 846 F.2d 642, 659 (11th Cir.), ce t
denied, 488 U.S. 872, 109 S.Ct. 189, 10:
L.Ed.2d 158-(1988);- Drake v. Kemp, 16!
F.2d 1449, 1453 (11th Cir.1985) (en: bane)
cert. denied, 478 U.S. 1020, 106 S.Ct. 3333,
92 L.Ed.2d 738 (1986). After Yates, how.
ever, the Sandstrom errors subject to

whelming evidence as to the defendant’s
guilt. The overwhelming evidence as to
the defendant’s guilt must actually have
been considered by the jury. Thus, a re-
viewing court must determine “whether
the force of the evidence presumably con- \
sidered by the jury in accordance with the
instructions is so overwhelming as to leave
it beyond reasonable doubt that the verdict.
resting on that evidence would have been
the same in the absence of the presump-
tion.” Yates, 111 S.Ct. at 1893-94. Yet,
where Sandstrom errors have occurred,
the two situations identified by this circuit
continue to identify instances where harm-
less error analysis is appropriate.

We agree with the district court’s opinion
that “[iJn this case, because the defense
counsel’s strategy primarily focused on
convincing the jury that Stevens’ [sic] nev-
er intended to kill the victim, intent was
definitely an issue at trial.” Order at 73,

juror” standard to determine whether an ambig-
uous jury instruction is unconstitutional, but
that a court should instead determine “ ‘whether
there is a reasonable likelihood that the jury has
applied the challenged [ambiguous] instruction
in a way’ that violates the Constitution.” 112
S.Ct. at 482 & n. 4 (quoting Boyde v, California,
494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108
L.Ed.2d 316 (1990)). Nonetheless, Estelle’s crit:
icism did not reach or affect the harmless error
analysis set forth in Yates.


| $Sue,in_the.trial, or (2) where th

lard to determine whether an ambig-

i “SERIES

an ent of the crime that wa

: as.to the defendant’s guilt
‘Iming.
Kemp, 832. F.2d 546, 548 (11
en banc), cert. denied, 485 U
3.Ct.-.1120,;-99 L.Ed,2d 281. a
ed, 485.U.S. 970, 108. S.Ct. 1247,
| 445 (1988); see-also Stephens v,
) F.2d 642, 659 (11th Cir.), cert,
38 U.S. 872,.109 S.Ct. 189, 10
8 (1988); Drake v. Kemp, 76
1453.(11th Cir,1985) (en: banc)
d, 478 U.S. 1020, 106 S.Ct. 3333
738 (1986). After Yates, how.
Sandstrom errors subject to
rror findings are somewhat dif-
vv example, it is now clear that
of harmless error are not ap-
simply - ‘because there is over-
evidence as to the defendant’s —
: overwhelming evidence as to
ant’s. guilt must actually have
jered by the jury. Thus, a re-
urt must determine “whether
f the evidence presumably con-
thi 7 in accordance with the —
is verwhelming as to leave
-asonable doubt that the verdict
that evidence would have been
1 the absence of the presump-
es, 111 S.Ct. at 1893-94. Yet,
dstrom errors have occurred,
iations identified by this circuit
identify instances where harm-
inalysis is appropriate.
with the district court’s opinion
his case, because the defense
trategy primarily focused on
che jury that Stevens’ [sic] nev-
to kill the victim, intent was
a issue at trial.” Order at 73,

instruction is unconstitutional, but
should instead determine “ ‘whether C i
asonable likelihood that the jury has :
challenged [ambiguous] instruction
hat violates the Constitution.” 112
& n. 4 (quoting Boyde v. California,
0, 380, 110 S.Ct. 1190, 1198, 108
(1990)). Nonetheless, Estelle’s crit:
»t reach or affect the harmless error
forth in Yates.

Stevens v. Kemp, No. CV291-009 (S.D.Ga.
June 26, 1991). Thus, in order'to hold the
error harmless, it is necessary to find that
the jury actually considered overwhelming
evidence of the defendant’s intent to com-
mit the crime charged. See Yates, 111
S.Ct. at 1893-94.

‘Because the jury returned a general ver-
dict, it is unclear whether it found Stevens
guilty of felony murder or malice murder.
Of course, intent to kill is not an element of
the crime of felony murder; therefore, the
Sandstrom charge is undeniably harmless
error if the jury found Stevens guilty of
felony murder.

Intent to kill, however, is an element of
malice murder; therefore, the Sandstrom
instruction would be harmless only if there
was overwhelming evidence of intent to
kill. Here, the prosecution relied primarily
on evidence of Stevens’ intent to aid and
abet Burger because in Georgia, one can be
convicted of malice murder on a theory of
accomplice liability. The trial court in-
structed the jury to find Stevens guilty if
he had the intent to aid’ and abet Burger,
and the district court presumed that the
jury followed the trial court’s instruction.
Order at 74-75, Stevens v. Kemp, No.
CV291-009 (S.D.Ga. June 26, 1991).

The district court pointed to Botsford’s
testimony that the idea of murder had orig-
inated with Stevens and to the enormous
amount of circumstantial evidence as over-
whelming evidence of intent either to kill
Honeycutt or at least aid and abet Burger’s
actions. Specifically, the district court not-
ed that Stevens:

participated fully in the kidnapping of

the victim, he directly committed the acts

of sodomy, he tied the victim’s hands and
put him in the trunk of the car, he helped

Burger wipe their fingerprints off the

car, he sat and watched as Burger drove

the car into the pond, he watched the car
sink, and, finally, he ran away from the
scene.

Id. at 76. Stevens essentially argues that
the evidence of his intent was not over-
whelming because the jury could have be-
lieved his version of the events. To do so,
however, the jury would have had to accept

STEVENS v. ZANT 1087
Cite as 968 F.2d 1076 (1ith Cir. 1992)

the truth of his confession in its entirety,
and infer from that confession that he did
not intend to kill Honeycutt. The confes-
sion actually reads, in relevant part:
Chris [Burger] was going to drive the car
into the pond and I said do you think we
“ should and he said yes I said I wouldn’t
do it and he said it always harder the
first I didn’t think he was going to but he
got in the car drove it into the pond and
jumped out of the car before it went in
he took off running so I took off running
too We stopped and Looked back and the
car was sinking so we took off running.

[sic]

State Ex. 29, State v. . Stevens, No. 77-1641

(Wayne County Super.Ct. July 1979). The

district court held that:
[tlaken in context, no reasonable jury
could have construed the words “I
wouldn’t do it” as evidence of Stevens’
lack of intent.... Stevens’ confession
does not provide the jury with enough
evidence from which to infer that he
intended to do anything other than kill,
or help Burger to kill, Honeycutt. .
The jury could not rationally eonshida
that his bland comment, “I wouldn’t do
it,’ meant that he lacked the requisite
intent, considering the evidence that Ste-
vens aided in the crime before the mur-
der, and aided Burger afterwards as
well. He watched Burger drive the car
into the pond; he watched as the car
sank into the pond.

Order at 79-80, Stevens v. Kemp, No.
CV291-009 (S.D.Ga. June 26, 1991).

We agree with the district court that the
evidence considered by the jury overwhelm-
ingly established the requisite intent re-
quired to convict Stevens of malice murder.
Therefore, the Sandstrom error was harm-
less beyond a reasonable doubt.

C. Other Claims

(1) Procedural Default

When considering state procedural re-
quirements, the United States Supreme
Court has explicitly stated:

In all cases in which a state prisoner has

defaulted his federal claims in state


1088

court pursuant to an independent and
adequate state procedural rule, federal
habeas review of the claims is barred

unless the prisoner can demonstrate’

cause for the default. and actual preju-
dice as a result of the alleged violation of
federal law, or demonstrate that failure
to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v.. Thompson, —— US.—,.111
S.Ct. 2546, 2965, 115 L.Ed.2d 640 (1991);
see also Wainwright v. Sykes, 433. U.S. 72,
87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594
(1977); McCoy v, Newsome, 953 F.2d 1252,
1258 (11th Cir.1992), petition for cert.
Jiled, No. 91-7860 (U.S. Apr. 6, 1992). On
appeal, Stevens nonetheless argues that
the district court erred when it concluded
that his claim under the Fifth and Four-
teenth Amendments. was procedurally
barred by 0.C.G.A. § 9-14-51.13

Stevens does not dispute that 0.C.G.A.
§ 9-14-51 provides an independent state
basis for procedurally barring considera-
tion of the Fifth Amendment claim’ that
Stevens failed to raise until his third state
habeas petition. He contends, however,
that 0.C.G.A. § 9-14-51 is not an adequate
basis for foreclosing his claim because the
courts of Georgia have not applied the stat-
ute consistently in his case or in other
cases. Stevens further contends that the
courts of Georgia have been inconsistent in
their applications of 0.C.G.A. § 9-14-51
and res judicata principles, sometimes in-
voking the label of res judicata when apply-
ing 0.C.G.A. § 9-14-51.

In support of his position, Stevens points
to the manner in which the Superior Court
of Butts County treated the ineffective as-
sistance of counsel claim that Stevens
raised in his second state habeas petition.
In addition to reasserting ineffective assist-
ance arguments that had already been
raised in the first state petition, the second
petition’s claim was premised on additional
facts and theories which Stevens had failed
to raise in the prior state petition. Rather
than addressing Stevens’ claim simply by

13. O.C.G.A. § 9-14-51 provides that all grounds
for habeas relief that are not raised in a peti-
tioner’s original or amended petition shall be
waived: (1) “unless the Constitution of the Unit-

968 FEDERAL REPORTER, 2d SERIES

citing to 0.C.G.A. § 9-14-51, however, the }
Superior Court of Butts County discussed ©
broader principles of res judicata which

properly barred under applicable principles
of res judicata, which included 0.C.G.A..
§ 9-14-51. Stevens v. Kemp, 254 Ga, 228,
827 S.E.2d 185, 186-87 (1985).. ns
now maintains that, because. the superio
court applies res judicata but did not specif.
ically apply 0.C.G.A. § 9-14-51, his Fift
Amendment claim should only have bee

viewed as barred by res judicata.

In fact, neither the Georgia Supreme
Court nor the Superior Court of Butts =>

Court, Stevens “d[id] not challenge... the
finding that his ineffective-assistance-of-
counsel claims were ruled on in his original
habeas petition.” 327 S.E.2d at 187. Ste-
vens’ concession, unopposed by the State
thus allowed the court to rely on the uncon-
tested finding and bar consideration of Ste-
vens’ ineffective assistance claims witho
reaching the express application
0.C.G.A, § 9-14-51.. Under such cireum
stances, we cannot say that the Georgia
courts’ subsequent application of 0.C.G.A.
§ 9-14-51 to bar consideration of the Fifth
Amendment issues that Stevens had failed
to raise earlier was inconsistent with th
courts’ use of Georgia law to bar considera
tion of the ineffective assistance claims i

that Stevens raised in his second state peti-
tion.

[12] Furthermore, although Stevens
makes much ado over whether Georgia
courts have categorized their decisions as
applications of res judicata or applications

ed States or of [Georgia] otherwise requires,” or
(2) unless the grounds for relief “could not
reasonably have been raised in the original or
amended petition.”


DAILY OPINION SERVICE

United States Supreme Court. 8 2125. eae

defendant believed the defendant or the alleged accomplice. The
prosecutor’s second question on cross-examination—*“Why didn’t
you tell this story to anybody when you got arrested?”—thus struck
directly at the heart of Miller’s defense: his credibility. If the ratio-

nale of Doyle is to have any force, defendants must be protected .

from such tactics.

Lower courts have also recognized that once the prosecutor calls
attention to the defendant’s silence, the resultant harm is not easily
cured. First, the jury is made aware of the fact of post-arrest silence,
and a foundation is laid for subsequent, more subtle attacks.? Sec-
ond, “curative” instructions themselves call attention to defen-
dant’s silence, and may in some cases serve to exacerbate the harm.
In a relaxed context, involving a prosecutor’s statement calling
attention to the defendant’s decision not to testify at trial, JUS-
TICE STEVENS has argued that “[iJt is unrealistic to assume that
instructions on the right to silence always have a benign effect.”
Lakeside v. Oregon, 435 U.S. 333, 347 (1978) (dissenting opinion).

“For the judge or prosecutor to call [the defendant’s failure.
to testify] to the jury’s attention has an undeniably adverse
effect on the defendant. Even if jurors try faithfully to obey
their instructions, the connection between silence and guilt
is often too direct and too natural to be resisted. When the
jurors have in fact overlooked it, telling them to-ignore the
defendant’s silence is like telling them not to think of a white
bear.” Id., at 345. .
Justice Simon of the Illinois Supreme Court has elaborated on this
point: ’

“An improper inquiry by the prosecutor concerning the
defendant’s post-arrest silence is not automatically reme-
died by a cautionary instruction. . . . If [it were], the prose-
cutor would have little incentive to avoid such inquiries on
cross-examination of the defendant; he could safely inform
the jury of the defendant’s post-arrest silence, risking only
an objection by the defendant’s counsel and a cautionary
instruction by the trial court. A cautionary instruction is at
best only a partial remedy. . . . The instruction may confuse
the jury; or the jury may disregard it and use the defendant’s
silence against him anyway. In a close case like this one,
based wholly upon accomplice testimony and circumstan-
tial evidence, the reference to post-arrest silence can work
extreme prejudice against the defendant, notwithstanding
cautionary instruction.” People v. Miller, 96 Ill.2d 385, 398,
450 N.E.2d 322, 328 (1983) (dissenting opinion).

Courts below have therefore considered prompt objections and

curative instructions relevant to the question whether a comment
on a defendant’s silence is harmless error, but irrelevant to the
question whether the comment violates Doyle. The Court today
confuses the two inquiries, and thereby eliminates much of the pro-
tection afforded by Doyle.

Today’s radical departure from established practice is particu-
larly inappropriate because this ground for decision was not pres-
ented either to the courts below or to this Court. The State
“concede[d]” in the Court of Appeals that “any comment referring
to [defendant’s] silence after that arrest [for murder] would be
improper.” 789 F.2d, at 442.4 It sought review in this Court not

3For example, the prosecutor clearly got full mileage out of his Doyle violation
during closing argument. He was able to exploit the jury’s awareness of defen-
dant’s post-arrest silence by stressing that the accomplice’s testimony was credible
precisely because he had not remained silent after arrest:

“We made a deal, if you want to call it that, with a guy [the accomplice] who’s
willing to tell the truth, a man who told the truth of his involvement on February
10, 1980 [the day after the crime]. Sure, he was wrong in details; sure, he left some
things out; sure, his statement is confusing; sure, he lied at that time about not
being with his brother as they left the Regulator Tavern at first, but he was only
in custody a few hours. He was charged with murder. He knew they had him, cold
turkey, but he told them a story, as they call it, an account, as I call it, shortly
after his arrest, factually corroborated by an independent investigator. So if you
call that a deal, put that aside. The question is, deal or no deal, did Randy tell
you the truth. It really boils down to, who told you the story here and who told
you the truth? You either believe Randy Williams or you believe ‘Chuck’ Miller.
That is your choice. It’s as simple as that.” Ibid.

4In the Court of Appeals, the State argued against a finding of a Doyle violation
solely on the ground that “the prosecutor’s reference to Miller’s post-arrest silence
could be construed as referring to the period between Miller's arrest on the weap-
ons charge, when no Miranda warnings were given, and his arrest on the murder
charge and receipt of Miranda warnings later that afternoon.” 789 F.2d, at 442.

of the question whether a Doyle violation occurred, but of whether, Sa
late review should be more lenient than harmless. error.®, The ques- We
tion decided today was therefore not “fairly included ‘in’ the

p ek

assuming the existence of a Doyle violation, the standard fc oT 2

question presented for review.” Ante, at 5, n. 3. Moreoyet, the
Court’s contention, ibid., that this question was argued inthe

%

judgment below, and upset the settled practice of the

see hagas Oe

and on which respondent has had-no opportunity to be he

on a point which the State conceded below and did not raise here, e

Today’s decision saps Doyle of much of. its vitality: would

} _

adhere to Doyle’s principles, and to the established practice of the.
lower courts. I dissent. Shoei Fates 2S

5The sole question presented is explicitly premised on a finding of a’Doyle
violation: “Whether, when considering violations of Doyle v. Ohio; in. federal
habeas corpus proceedings, the standard of review should be whether, the error

_ substantially affected the course of the trial rather than whether the error was

harmless beyond a reasonable doubt.” Pet. for Cert. i (emphasis added).

6ithough one sentence in petitioner's brief refers to “an attempted ‘violation oe
of the rule of Doyle,” Brief for Petitioner 16, the brief contains no other reference,
- direct or indirect, to the argument the Court develops today. One “casual citation

_.. in the midst of an unrelated argument, is insufficient to inform a . -: court
that it has been presented with a claim.” ‘Board of Directors of Rotary Intl v.
Rotary Club, 481 U.S.—, —, n. 8, (1987). Apart from making what is at best a
casual reference to the Court’s argument, petitioner’s brief is devoted to the dis-
cussion of the question it presented—whether the standard of harmless error is
appropriate for Doyle violations. Not surprisingly, there is no di ion of the
Court’s argument in respondent’s brief. Poe:

v 3

Cite as 87 C.D.O.S. 2125

CHRISTOPHER A. BURGER, Petitioner, v.

RALPH KEMP, WARDEN, Respondent.

No. 86-5375 :

On Writ of Certiorari to the United States Court of Appeals for the
Eleventh Circuit ;

(785 F.2d 890 and 796 F.2d 1313)

Argued March 30, 1987

Decided June 26, 1987

JUSTICE STEVENS delivered the opinion of the Court.

A jury in the Superior Court of Wayne County, Georgia found
petitioner Christopher Burger guilty of murder and sentenced him
to death on January 25, 1978. In this habeas corpus proceeding,
he contends that he was denied his constitutional right to the effec-

ae niga
ued 11 briefs |
appears to me simply mistaken.® The Court has overloo ia “the <=

tive assistance of counsel because his lawyer labored under a con--

flict of interest and failed to make an adequate investigation of the
possibly mitigating circumstances of his offense. After a full eviden-

tiary hearing, the District Court rejected the claim. We are per- -

suaded, as was the Court of Appeals, that the judgment of. the
District Court must be affirmed.

- ae
The sordid story of the crime involves four soldiers in the United

States Army who were stationed at Fort Stewart, Georgia, on Sep-.
tember 4, 1977. On that evening, petitioner and his. coindictee,

Thomas Stevens, both privates, were drinking at a club on the post.
They talked on the telephone with Private James Botsford; who had
just arrived at the Savannah Airport, and agreed to pick him up

and bring him back to the base. They stole a butcher knife and a.

sharpening tool from the mess hall and called a cab that was being
driven by Roger Honeycutt, a soldier who worked part-time for a
taxi company. On the way to the airport, petitioner held the knife
and Stevens held the sharpening tool against Honeycutt. They

forced him to stop the automobile, robbed him of $16, and placed _

him in the back seat. Petitioner took over the driving. Stevens the
ordered Honeycutt to undress, threw each article of his clothing out
of the car window after searching it, blindfolded him, and tied his
hands behind his back. As petitioner drove, Stevens climbed in the
back seat with Honeycutt, where he compelled Honeycutt to com-
mit oral sodomy on him and anally sodomized him. After stopping
the car a second time, petitioner and Stevens placed their victim,

1090

ance on cross-exa
the prosecution

968 FEDERAL REPORTER, 2d SERIES

schools in county. The United States Dis-
trict Court for the Middle District of Ala-
bama, No. 2455-N, Robert E. Varner, J.,

dents appealed The Court of Appeals
murder Clark, Senior Circuit Judge, held that: dis-
IIL. CONCLUSION trict court did not abuse its discretion in
; approving plan.
For the reasons set forth above, we find

that the issues raised by the appellant, Affirmed.
Thomas Dean Stevens, are with

1. Schools S>13(4)
6 Crm, AA Until school System achieves unitary

effe

father and next friend, Collins W. HAR. 100 that has the effect

further desegrega-
te effects of previ-

next friend, Floreese Mitchell; Myra 2 Schools ¢>13(4)

Ruth McGhee and —Windan Ray

Duty to desegregate igs Violated © if
McGhee, i

minors, by their father and — school bo:

School facilities.

é >
National Education Association, : Schools 13(19)
Ine.; Plaintiff—-Intervenor,

= school facility with

. tudent body, it
“RENSHAW COUNTY BOARD OF Epy. **¥4ent body, it mu
CATION; Euge

Landers, Ollie

gan, and James FE. Hollis, Jr.,as mem. 80ns.
bers of the Cren

4, Is €13(1
Education and Joe R. Sport, Superin- Schools (12)

lees.

No. 91-7609. ers, even if board had engaged in improper

. conduct by tacitly approving transfers of

United States Court of Appeals, white students out of high school zone

Eleventh Cireuit. Causing smal] enrollment of white students;

July 31, 1992. decision to consolidate schools was unavoid-

able given decline jn student population,
School board petitioned for approval of consolidation w

consolidation of high school with other tive effect on d


JZ eo: 8. = q i
le ON. OA a q |
: = rae Beet : e ;
i I> a ges : : .
am ER}. i See
a M >. ) (5) oO
te ee ¢ =I = —_ a :
: 2. SF 4
: y i eS LAW PARTNERS’ REPRESENTION OF CODEFENDANTS
| < aA & & - DOES NOT CONSTITUTE PER SE DENIAL OF EFFECTIVE
Ss) ASSISTANCE OF COUNSEL
= Burger v. Kemp
nd mat U.S. Sup.Ct.; June 26, 1987

The United States Supreme Court held that law partners repre-
senting codefendants in a Capital case, even assuming that they are
to be considered as one attorney, do not commit a per se violation of
the Sixth Amendment guarantee of effective assistance of counsel.

A Georgia jury found Christopher Burger guilty of murder and

sentenced him to death. The attorney who represented him at trial
was a law partner of the attorney who represented the codefendant.
Burger’s trial counsel also represented Burger through two appeals
to the Georgia Supreme Court, the last of which resulted in affir-
mance of the capital sentence. The district court denied Burger’s
claim that his representation at trial had been constitutionally inade-
quate. However, it found that the trial court’s instructions to the
jury permitted it to base its sentencing decision on an invalid ag-
gravating circumstance. Accordingly, the district court vacated the
death sentence. The Eleventh Circuit affirmed in part and reversed
in part, reinstating the death penalty.

The United States Supreme Court affirmed the lower court judg-
ment, holding that the alleged conflict of interest was without merit
because any overlap of counsel did not infect Burger’s representati-
on sufficiently to constitute an active representation of competing in-
terests. In addition, the Court ruled that Burger’s counsel’s failure
in not making a lesser culpability argument in Burger’s brief on his
second appeal to the Georgia Supreme Court did not establish an ac-
tual conflict. Finally, the Court ruled that Burger did not receive in-
effective asdsistance of counsel because of his counsel’s failure to

F :

per se denial of

MD ccsesnescereccccccccccevesecoes

Pee eesescesressesecsseseseses

USS. SUPREME CouRT

“TieSRECORDE

Prosecutor’s question concerning postarrest silence does not require reversal.

ee

CALIFORNIA Courts OF APPEAL

CALIFORNIA Datty OPINION S

A DAILY PUBLICATION OF APPELLATE DECISIONS FOR SUBSCRIBERS 10 THE RECORDER
Table of Cases ¢ Monday, July 6, 1987 :

eeoeeeroeccoses
Tee e ee eeereereesereseresecesesseesesesesrereseseseeees

representation of codefendants does not constitute

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SERIES

C.4 } 9-14-51, however, th
yur Butts County discussed
ineiples. of res judicata which’
oar consideration of the argue
din Stevens’ ineffective assis

The Georgia Supreme. Cou
ed the superior court’s denial o
‘f, concluding that Stevens’ se
tive assistance claim had_bee!
rred under applicable principle
cata, which included 0.C.G.A
Stevens v. Kemp, 254 Ga, 228;
185, 186-87 (1985). Steven:
ins that, because the superio
s res judicata but did not sp
0.C.G.A. § 9-14-51, his Fif
- claim should only have bee!
varred by res judicata.

neither. the Georgia Supreme
the Superior Court of. Butts
-ressly addressed the application -
-. § 9-14-51 to the. ineffectiv
ssues which Stevens had failed ”
his first state habeas petition,
2al to. the Georgia Supre
vens,, “df{id], not. challenge. the
a. be ineffective-assistance-of-
ns 2 ruled on in his original
itidw. ...827 S.E.2d at 187. Ste;
-ssion,; unopposed by the State.
d the court to rely on the uncon-
g and bar consideration of § og
-ctive assistance claims without ~~
the express application of
9-14-51... Under such circum- —
» cannot say that the Georgia —
equent application of 0.C.G.A.
) bar consideration of the Fifth
-. issues that Stevens had failed a
rlier was inconsistent with the —
of Georgia law to bar considera- _
» ineffective assistance claims “i
s raised in his second state peti-

rthermore, although Stevens —
ch ado over whether Georgia —
: categorized their decisions a8
; of res judicata or applications ©

r of [Georgia] otherwise requires,
the grounds for relief “could: not
have been raised in the original ¢

oetition.”

STEVENS v. ZANT

1089

Cite as 968 F.2d 1076 (11th Cir. 1992)

of 0.C.G.A. § 9-14-51, “res judicata” is no
more than a. general label sometimes used
by the Georgia courts to refer to the princi-
ples of claim and issue preclusion, which
include the procedural default principles co-
dified at O.C.G.A. § 9-14-51. See,.eg.,
Tucker v. Kemp, 256.Ga. 571, 351 S.E.2d
196, 197-98 (1987); Stevens v. Kemp, 327
S.E.2d at 186-87. Nevertheless, Stevens
asserts that Georgia’s application of res
judicata principles will not act as a bar to
federal habeas review, but that application
of 0.C.G.A. § 9-14-51 will bar review. Al
though state court decisions on the merits
of a federal claim will not be given preclu-
sive res judicata effect in a federal habeas
proceeding, noncompliance with indepen-
dent and adequate state procedural re-
quirements will still normally preclude fed-
eral habeas review of the claim. See Cole-
man, 111 S.Ct. at 2554, 2565; Wainwright,
433 U.S. at 87, 97 S.Ct. at 2506-07; McCoy,
953 F.2d at 1258. In other words, princi-
ples of res judicata will not normally bar
federal habeas review simply because state
courts have considered the merits of a legal
claim or issue. However, if the state has a
rule of res judicata that precludes the re-
view of issues not. previously raised, the
utilization of the “res judicata” label will
not render inoperative the rule of Wain-
wright v. Sykes. Such principles of res
judicata, as they affect issues not previous-
ly raised in a prior habeas petition, have
been codified in Georgia’s procedural de-
fault statute, 0.C.G.A. § 9-14-51. More-
over, we have already recognized that non-
compliance with 0.C.G.A. § 9-14-51 can
preclude federal habeas review. McCoy,
953 F.2d at 1257-62; Lancaster v. New-
some, 880 F.2d 362, 372-74 (11th Cir.1989);
Presnell v. Kemp, 835 F.2d 1567 (11th Cir.
1988), cert. denied, 488 U.S. 1050, 109 S.Ct.
882, 102 L.Ed.2d 1004 (1989).

[13] Despite Stevens’ assertions, we
conclude that the courts of Georgia have
not applied 0.C.G.A. § 9-14-51 in an incon-
sistent manner, whether in Stevens’ case or
in general. The statute provides an inde-
pendent and adequate state basis for proce-
durally denying consideration of the Fifth
Amendment issues that Stevens failed to
raise until his third state habeas petition.

Moreover, Stevens has not shown the cause
and prejudice necessary to overcome a pro-
cedural default. Neither has he shown
that a fundamental miscarriage of justice
will result if we do not consider his Fifth
Amendment claim. Under these circum-
stances, the district court was correct in
refusing to consider Stevens’ claim under
the Fifth and Fourteenth Amendments.

(2) District. Court’s Exclusion of Evi-
dence

[14] . Stevens’ final argument is that the
district court erred in refusing to consider
two documents tendered at the evidentiary
hearing held on October 5, 1988. Those
documents were the two declarations made
by Dr. Joseph W. O’Haire in accordance
with 28 U.S.C. § 1746. The first declara-
tion, containing the opinions and explana-
tions of Dr. O’Haire, had been made nearly
two months prior to the hearing... More-
over, as. evidenced by the second declara-
tion, Stevens’. habeas counsel had decided
to use the first declaration in lieu of Dr.
O’Haire’s attendance as early as one week -
prior to the hearing. The declarations of
Dr. O’Haire were offered to show. that Ste-
vens’ trial. counsel was ineffective by virtue
of his decision not to call Dr. O’Haire to the
witness stand. See supra Section II(A)(2)
(addressing the pertinent ineffective assist-
ance of counsel claim).

The State argued that it was never pro-
vided with a copy of Dr. O’Haire’s declara-
tions and that it was not even made aware
of the documents until the federal habeas
hearing. Under these circumstances, the
State could not cross-examine Dr. O’Haire
and could not adequately respond to the
statements made in the declarations. Giv-
en the unfair surprise to the State, we do
not find that the trial court abused its
discretion in excluding the O’Haire declara-
tions. This is especially true where the
declarations would have had minimal im-
pact upon Stevens’ ineffectiveness claim.
After all, it was not just the views that Dr.
O’Haire had set down on paper that had
stopped Stevens’ trial counsel from calling
Dr. O’Haire as a witness during the sen-
tencing phase of Stevens’ trial, but the fear
that Dr. O’Haire’s statements and perform-


DAILY OPINION SERVICE

United States Supreme Court 2129

concluded, an experienced trial lawyer could properly have decided
not to put either petitioner or the psychologist who had thus evalu-
ated him in a position where he would be subjected to cross-
examination that might be literally fatal. 753 F.2d, at 935-936.
The other two witnesses that Leaphart considered using were
petitioner’s mother and the Indiana lawyer who had acted as peti-
tioner’s “big brother.” Leaphart talked with the mother on several
occasions and concluded that her testimony would not be helpful
and might have been counterproductive. As the record stood, there

was absolutely no evidence that petitioner had any prior criminal |

record of any kind. Her testimony indicates that petitioner had
committed at least one petty offense. App. 90. The District Judge
who heard all of the testimony that she would have given on direct
examination at the sentencing hearing was not convinced that it
would have aided petitioner’s case; it was surely not unreasonable
for Leaphart to have concluded that cross-examination might well
have revealed matters of historical fact that would have harmed his
client’s chances for,a life sentence.

_ The Indiana lawyer was willing to travel to Georgia to testify on
petitioner’s behalf, but nothing in the record describes the content
of the testimony he might have given. Although Leaphart was
unable to recall the details of the background information that he
received from the Indiana lawyer, he testified that the information
was not helpful to petitioner, App. 57, and the Indiana lawyer
apparently agreed with that assessment. Jd., at 57-58. Consistently
with that conclusion, petitioner’s present counsel — even with the
benefit of hindsight — has submitted no affidavit from that lawyer
establishing that he would have offered substantial mitigating evi-
dence if he had testified. Accordingly, while Leaphart’s judgment
may have been erroneous, the record surely does not permit us to
reach that conclusion.

Finally, petitioner submitted several affidavits to the court to
describe the evidence that Leaphart might have used if he had con-
ducted a more thorough investigation. These affidavits present
information about Burger’s troubled family background that could
have affected the jury adversely by introducing facts not disclosed
by petitioner’s clean adult criminal record. The affidavits indicate
that the affiants, had they testified, might well have referred on
direct or cross examination to his encounters with law enforcement
authorities. For example, a former neighbor, Phyllis Russell, stated
that petitioner’s father did not want to associate with him when he
“got into trouble and was on juvenile probation.” | Record 142.
Petitioner’s uncle, Earnest Holtsclaw, narrated that petitioner “got
involved with drugs” while in Florida. Jd., at 145. Cathy Russell
Ray, petitioner’s friend in junior high school, stated that “Chris’s
father was supposed to go with him to juvenile court to get a release
so that he could join the service [Army].” /d., at 149.

Even apart from their references to damaging facts, the papers
’ are by no means uniformly helpful to petitioner because they sug-
gest violent tendencies that are at odds with the defense’s strategy
of portraying petitioner’s actions on the night of the murder as the
result of Stevens’ strong influence upon his will. For example, the
District Judge pointed out:

“In an affidavit submitted to this Court, petitioner’s uncle
attests that petitioner came from a broken home and that he
was unwanted by his parents. He opined that Burger had a
split personality. ‘Sometime [Burger] would be a nice, normal
guy, then at time he would flip out and would get violent over
nothing.’ Affidavit of Earnest R. Holtcsclaw [sic] at 1-2; see
also Affidavit of Cathy Russell Ray at 1 (‘He had a hairtrigger
temper. He would get mad and punch the walls. Once he broke
his knuckles he got so ma{d].’). On one hand, a jury could react
with sympathy over the tragic childhood Burger endured. On
the other hand, since Burger’s sanity was not in issue in this
case, the prosecution could use this same testimony, after
pointing out that petitioner was nevertheless responsible for
his acts, to emphasize that it was this same unpredictable pro-
pensity for violence which played a prominent role in the
death of Burger’s victim. See note 6, supra. ‘[M]itigation . . .

, after all, [m]ay be in the eye of the beholder.’ Stanley v. Zant,

697 F.2d 955, 969 & n. 11 (11th Cir. 1983) (footnote -

omitted).” 753 F.2d, at 937-938, n. 7. —

The record at the habeas corpus hearing does suggest that Lea-
phart could well have made a more thorough investigation than he
did. Nevertheless, in considering claims of ineffective assistance of
counsel, “[w]e address not what is prudent or appropriate, but only

- what is constitutionally compelled.” United States v. Cronic, 466

U.S. 648, 665, n. 38 (1984). We have decided that “strategic.choices
made after less than complete investigation are reasonable pre-

cisely to the extent that reasonable professional judgments support

the limitations on investigation.” Strickland, 466 U.S., at 690-691.
Applying this standard, we agree with the courts below that coun-
sel’s decision not to mount an all-out investigation into petitioner’s
background in search of mitigating circumstances was supported
by reasonable professional judgment. It appears that he did inter-
view all potential witnesses who had been called to his attention
and that there was a reasonable basis for his strategic decision that
an explanation of petitioner’s history would not have minimized
the risk of the death penalty. Having made this judgment, he rea-
sonably determined that he need not undertake further investiga-
tion to locate witnesses who would make statements about Burger’s
past. We hold that the Court of Appeals complied with the direc-
tives of Strickland:

_ “In any ineffectiveness case, a particular decision not to inves-
tigate must be directly assessed for reasonableness in all the -
circumstances, applying a heavy measure of deference to coun-
sel’s judgments.

“The reasonableness of counsel’s actions may be deter-.
mined or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually based,
quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In
particular, what investigation decisions are reasonable
depends critically on such information. For example, when the
facts that support a certain potential line of defense are gener-
ally. known to counsel because of what the defendant has said,
the need for further investigation may be considerably dimin-
ished or eliminated altogether. And when a defendant has
given counsel reason to believe that pursuing certain investiga-
tions would be fruitless or even harmful, counsel’s failure to
pursue those investigations may not later be challenged as
unreasonable.” /d., at 691.

Vv

Petitioner has not established that “in light of all the circum-
stances, the identified acts or omissions [of counsel] were outside
the wide range of professionally competent assistance.” /d., at 690.
He “has made no showing that the justice of his sentence was ren-
dered unreliable by a breakdown in the adversary process caused
by deficiencies in counsel’s assistance.” Jd., at 700.

Accordingly, the judgment of the Court of Appeals is

Affirmed.

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and
JUSTICE MARSHALL join, and, as to Part II, JUSTICE POW-
ELL joins, dissenting.

In Strickland v. Washington, 466 U.S. 668 (1984), this Court set
forth the standards that are to govern a court’s consideration of a
criminal defendant’s claims that he has been denied his Sixth
Amendment right to effective assistance of counsel. Petitioner Bur-
ger presents two such claims in this case. I believe each claim meets
those specified standards for establishing a constitutional violation.
Each therefore calls for a grant of the federal habeas corpus relief

sought by petitioner. Accordingly, I dissent from the Court’s judg- .

ment that denies such relief.’

1] agree With the Court’s conclusion, ante, at —, n. 5 (slip op. 6, n. 5), that the
Court of Appeals should be affirmed to the extent it held that any impermissible
effect of the jury instruction on malice given at the guilt/innocence phase of trial
was harmless beyond a reasonable doubt. See 785 F.2d 890; clarified, 796 F.2d
1313(CA11 1986). I also agree with the Court’s observation, ante, at —, n. 1 (slip
op. 3, n. 1), that petitioner has not advanced here the question of the constitution-
ality of executing a person for a murder committed while he was a minor, and
thus there is no need to address the merits of that issue or the availability of the
claim to petitioner in a future proceeding.


2126 United States:Supreme Court

CALIFORNIA

nude, blindfolded, and hands tied behind his back, in the trunk of
the.cab. They then proceeded to pick up Botsford at the airport.
During the ride back to Fort Stewart, they told Botsford.that they
_ had stolen the cab.and confirmed their. story by conversing with
Honeycutt in the trunk. In exchange for Botsford’s promise not to
notify the authorities, they promised. that they would not harm

Honeycutt after leaving Botsford at the base. . eh
. Ultimately, however, petitioner and Stevens drove to a pond in
Wayne ‘County where they had gone swimming in the past. The
removed the cab’s citizen-band radio and, while Steven was hiding
the radio in the bushes, petitioner opened the trunk and asked
Honeycutt if he was all right. He answered affirmatively. Petitioner
then closed the ‘trunk, ‘started the automobile, and put it in gear,
getting out before it entered the. water. Honeycutt drowned.

A week later Botsford contacted the authorities, and the military
police arrested petitioner and Stevens. The two men made com-
plete confessions. Petitioner also took the military police to the
pond and identified the point where Honeycutt’s body could be
found. Petitioner’s confession and Private Botsford’s testimony
were the primary evidence used at Burger’s trial. That evidence was
consistent with the defense thesis that Stevens, rather than peti-
tioner, was primarily responsible for the plan to kidnap the cab
driver, the physical abuse of the victim, and the decision to kill
him. Stevens was 20 years old at the time of the killing. Petitioner
was 17;* a psychologist testified that he had an IQ of 82 and func-
tioned at the level of a 12-year old child. © ~~

II

Alvin Leaphart was appointed to represent petitioner about a
week after his arrest. Leaphart had been practicing law in Wayne
County for about 14 years, had served as the County’s attorney for
most of that time, and had served on the Board of Governors of
the State Bar Association. About 15 percent of his practice was in
criminal law, and he had tried about a-dozen capital cases. It is
apparent that he was a well-respected lawyer, thoroughly familiar
with practice and sentencing juries in the local community. He rep-
resented petitioner during the proceedings that resulted in his con-
viction and sentence, during an appeal to the Georgia Supreme
Court which resulted in a vacation of the death penalty, during a
second sentencing hearing, and also during a second appeal which

resulted in affirmance of petitioner’s capital sentence in 1980) ©
Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978); Burger v. State, .

245 GA. 458, 265 S.E.2d 796, cert. denied, 446 U.S. 988 (1980).
Leaphart was paid approximately $9,000 for his services.
After exhausting his state collateral remedies, petitioner (then
represented by a different attorney) filed a habeas corpus proceed-
ing in the United States District Court for the Southern District of
Georgia. He advanced several claims, including a charge that Lea-
phart’s representation had been constitutionally inadequate. The
District Court conducted an evidentiary hearing and emphatically
rejected that claim,” but concluded that the trial court’s instruc-

1In his direct review and collateral proceedings to date, petitioner has not
advanced the claim that execution by a State of a person for a murder committed
while a minor violates the Eighth and Fourteenth Amendments to the Constitu-
tion. Cf. Thompson v. State, 724 P.2d 780 (Okla. Crim. App. 1986) (defendant.
was 15 years old at time of crime), cert. granted, 479 U.S. — (1987). We have
held that a habeas petitioner may “establish cause for a procedural default if his
claim is ‘so novel that its legal basis is not reasonably available to counsel.’ ”
Murray v. Carrier, 477 U.S. —, — (1986) (quoting Reed v. Ross, 468 U.S. 1, 16
(1984)). Of course, we do not now determine whether the legal basis for a constitu-
tional claim based on the youth of the defendant was reasonably available to peti-
tioner in 1978. Nor do we rule upon whether refusal to consider such a claim
would carry with it “the risk of a manifest miscarriage of justice” and would thus
permit a habeas corpus court to address the merits of the claim in a subsequent
proceeding. Smith v. Murray, 477 U.S. —, — (1986).

2«The Court most definitely finds no basis for concluding that Mr. Leaphart’s
representation was constitutionally inadequate.” Blake v. Zant, 513 F.Supp. 722,
802 (SD Ga. 1981). In a footnote, the court added:

“This Court is particularly concerned by arguments raised with respect to inef-
fective assistance of counsel. I certainly do not question the wisdom or the propri-
ety of advancing every legitimate argument on petitioner’s behalf. However,
many, if not all, the allegations made against Mr. Leaphart are directly contra-
dicted by the record. Thus, they could not possibly be of any benefit to Mr. Burger.
On the other hand, the raising of such unfounded charges must have a significant
‘chilling effect’ on the willingness of experienced attorneys, like Mr. Leaphart, to
undertake the defense of capital cases. Petitioner’s attorneys here might do well
to reconsider their apparent policy of routinely attacking the performance of trial
counsel in light of this fact.” Jd., at 802, n. 13. pat

tions to the jury permitted it to base its sentencing decision on an
invalid aggravating circumstance. Accordingly, the District Court
vacated petitioner’s death sentence. Blake v. Zant, 513 F.Supp. 772
(SD. Ga. 1981). >

* The Court of Appeals affirmed in part, reversed in part, and rein-
stated the death penalty. Burger v. Zant, 718 F.2d 979 (1983). On
the issue of Leaphart’s competence, it adopted the District Court’s
opinion as its own over the dissent of Judge Johnson. The dissent
found that Leaphart had a conflict of interest because his partner
Robert Smith? had been appointed to represent Stevens in his later,
separate trial for the murder of Honeycutt, and Leaphart had
assisted in that representation. He had interviewed Stevens and
assisted his partner during Stevens’ trial. Moreover, the two part-
ners shared their legal research and discussed the cases with one
another. Judge Johnson was persuaded that the conflict created
actual prejudice to petitioner’s interest for two reasons. First, each
of the two defendants sought to emphasize the culpability of the

other in order to avoid the death penalty. Second, Leaphart failed ~

to negotiate a plea bargain in which petitioner’s testimony against
Stevens might be traded for a life sentence. J udge Johnson was also
persuaded that Leaphart’s performance was defective because he
did not conduct an adequate investigation of possible mitigating
circumstances and did not have a valid strategic explanation for
his failure to offer any mitigating evidence at either the first or the
second sentencing hearing.

After the Court of Appeals rendered its decision, we decided
Strickland v. Washington, 466 U.S. 668 (1984). We granted Bur-
ger’s petition for certiorari and remanded the case to the Court of
Appeals for consideration of “the effectiveness of counsel’s assis-
tance at petitioner’s second sentencing hearing” in light of that
decision. Burger v. Zant, 467 U.S. 1212, 1213 (1984). The Court
of Appeals in turn remanded the case to the District Court with
instructions to extend or revise its findings, and if appropriate, its
conclusions on the-ineffective assistance of counsel claim. Burger
v. Zant, 741 F.2d 1274 (CA11 1984). The District Court wrote a

’ more extensive opinion on that issue and again concluded that

there was no merit to petitioner’s claim. Once again, the Court of
Appeals affirmed on the basis of the District Court’s opinion, over
the dissent of Judge Johnson. Burger v. Kemp, 753 F.2d 930 (CA11
1985) (per curiam).* We granted the petition for certiorari, vacated,
and remanded for reconsideration in light of Francis v. Franklin,
471 U.S. 307 (1985) on the question whether the jury instruction
impermissibly shifted the burden of proof on the issue of intent.
Burger v. Kemp, 474 U.S. 806 (1985). The Court of Appeals
assumed the trial court’s charge on intent unconstitutionally
shifted the burden of proof, but found the error harmless beyond
a reasonable doubt. 785 F.2d 890 (1986) (per curiam). We granted
certiorari, 479 U.S. — (1986), and now affirm. We first consider
counsel’s alleged conflict of interest argument and then his failure
to offer mitigating evidence.®

III
There is certainly much substance to petitioner’s argument-that

3Leaphart and Smith were both members of the same professional corporation.
The form of their business organization is not relevant to this case and they will
be described as partners for the sake of convenience.

“The opinion of the District Court is published as an Appendix to the Court
of Appeals’ opinion. 753 F.2d, at 932-942.

; 5Petitioner also argues in this proceeding that the malice charge given to the
jury at the guilt or innocence phase of his trial was unconstitutional under Francis

‘v. Franklin, 471 U.S. 307 (1985). The trial court charged the jury that a “person
’ of sound mind and discretion is presumed to intend the natural and probable con-

sequences of his acts.” The Court of Appeals observed that the jury instruction
was “virtually identical to the one held unconstitutional in Franklin,” 785 F.2d,
at 891, even though the trial court also instructed the jury that a person will not
be presumed to act with criminal intent and that a specific intent to commit the
crime charged was an essential element of the crime that the State must prove
beyond a reasonable doubt. The Court of Appeals found any error harmless
beyond a reasonable doubt. We agree with the Court of Appeals that, pretermit-
ting the inquiry whether the trial judge’s charge to the jury impermissibly shifted
the burden of proof on the question of petitioner’s criminal intent to commit mur-
der, “the evidence was so dispositive of intent” that it can be said beyond a rea-
sonable doubt that “the jury would have found it unnecessary to rely onthe
presumption.” See Rose v. Clark, 478 U.S. —, — (1986).


" DAILY OPINION SERVICE

United States Supreme Court | 2127

the appointment of two partners to represent coindictees in their
respective trials creates.a possible conflict of interest that could
prejudice either or both clients. Moreover, the risk of prejudice is
‘increased when the two lawyers cooperate with one another in the
planning and conduct of trial strategy, as Leaphart and his partner
did. Assuming without deciding that two law partners are consid-
ered as one attorney, it is settled that “[r]equiring or permitting a
single attorney to represent codefendants, often referred to as joint
representation, is not per se violative of constitutional guarantees
of effective assistance of counsel.” Holloway v. Arkansas, 435 U.S.
475, 482 (1978). We have never held that the possibility of preju-
dice that “inheres in almost every instance of multiple
representation” justifies the adoption of an inflexible rule that
would presume prejudice in all such cases. See Cuyler vy. Sullivan,
446 U.S. 335, 348 (1980). Instead, we presume prejudice “only if
the defendant demonstrates that counsel ‘actively represented con-
flicting interests’ and that ‘an actual conflict of interest adversely
affected his lawyer’s performance.’ ” Strickland, 466 U.S:, at 692
(citation omitted). See also Cuyler, 466 U.S., at 348, 350.

As an initial matter, we agree with the District Court that the
overlap of counsel, if any, did not so infect Leaphart’s representa-
tion as to constitute an active representation of competing inter-
ests. Particularly.in smaller communities: where the supply of
qualified lawyers willing to accept the demanding and unrewarding |
work .of representing capital prisoners is extremely limited, the
defendants may actually benefit from the joint efforts of two part-
ners who supplement one another in their preparation. In many
cases a ““common defense ... gives strength against a common
attack.”” Holloway v.. Arkansas, 435 U.S., at 482-483 (quoting
Glasser v. United States, 315 U.S. 60, 92 (1942) (dissenting opinion
of Frankfurter, J.)). Moreover, we generally presume that the law-
yer is fully conscious of the overarching duty of complete loyalty
to his or her client. Trial courts appropriately and “necessarily rely
in large measure upon the good faith and good judgment of defense
counsel.” Cuyler, 466 U.S., at 347. In addition, petitioner and Ste-
vens were tried in separate proceedings; as we noted in Cuyler, the
provision of separate murder trials for the three coindictees
“significantly reduced the potential for a divergence in their
interests.” Ibid.

In an effort to identify an actual conflict of interest, petitioner
points out that Leaphart prepared the briefs for both Burger and
Stevens on their second appeal to the Georgia Supreme Court, and
that Leaphart did not make a “lesser culpability” argument in his
appellate brief on behalf of Burger even though he had relied on
Burger’s lesser culpability as a trial defense. Given the fact that it
was petitioner who actually killed Honeycutt immediately after
opening the trunk to ask if he was all right, and the further fact that
the Georgia Supreme Court expressed the opinion that petitioner’s
actions were “outrageously and wantonly vile and inhuman under
any reasonable standard of human conduct,” Burger v. State, 245
Ga., at 461-462, 265 S.E.2d, at 800, the decision to forgo this issue
had a sound strategic basis. As we reaffirmed in Smith v. Murray,
477 U.S. —, — (1986), the “process of ‘winnowing out weaker
claims on appeal and focusing on’ those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective
appellate advocacy. Jones v. Barnes, 463 U.S. 745, 751-752
(1983).”

In addition, determining that there was an actual conflict of
interest requires the attribution of Leaphart’s motivation for not
making the “lesser culpability” argument to the fact that his partner
was Stevens’ lawyer, or to the further fact that he assisted his part-
ner in that representation. The District Court obviously credited
his testimony to the contrary, see 513 F.Supp., at 795, 753 F.2d,
at 941, and its findings were twice sustained by the Court of
Appeals. It would thus be most inappropriate, and factually unsup-
portable, for this Court to speculate that the drafting of a brief on

appeal was tainted by a lawyer’s improper motivation. Our duty .

to search for constitutional error with painstaking care is never
more exacting than it is in a capital case. Nevertheless, when the
lower courts have found that a lawyer has performed his or her sol-
emn duties in such a case at or above the lower boundary of profes-
sional competence, both respect for the bar and deference to the

shared conclusion of two reviewing courts prevent us from substi- ©
tuting speculation for their considered opinions.’ The’-District
Judge, who presumably is familiar with the legal talents'and charac-
ter of the lawyers who practice at the local bar and who:saw and .

heard the witness testify, is in a far better position than we are to

evaluate a charge of this kind, and the regional Courts of Appeals fa
are in a far better position than we are to conduct appellate review ©

of these heavily fact-based rulings. as te {

We also conclude that the asserted actual conflict ‘of interest, a
even if it had been established, did not harm his lawyer’s advocacy. «
Petitioner argues that the joint representation adversely affected

the quality of the counsel he received in two ways: Leaphart did

_ Not negotiate a plea agreement resulting in a life sentence, andhe
failed to take advantage of petitioner’s lesser culpability when com- -
pared with his coindictee Stevens. We find that neither argument .

provides a basis for relief.

The notion that the prosecutor would have been receptive to a 2
plea bargain is completely unsupported in the record. The evidence
eyewit-

of both defendants’ guilt, including their confessions, and

ness and tangible evidence, was overwhelming and uncontradicted;

the prosecutor had no need for petitioner’s eyewitness testimony’ ie
to persuade the jury to convict Stevens and to sentence him to: — :
ison for

death. In these circumstances, there is not the slightest
appellate doubt of the veracity of Leaphart’s testimony: °°".
“Q. Did you ever engage in any plea negotiations in this
case?
“A, Yes.
“Q. Could you tell me the substance of it? Se Gated
“A. Well, we — I constantly all during the time I represented
Mr. Burger tried to negotiate a plea with the district attorney
for a life sentence. And, he — during the first trial he just flatly
refused to even discuss it in any terms. And, then when we got
it reversed on the sentence feature I continued to — in that
time to try to negotiate with the — with the district attorney
about entering a plea, for Mr. Burger to serve a life sentence.

And, he insisted on trying it and insisted on seeking the death a

penalty.” App. 74-75. avers
As the District Court found, Leaphart “constantly attempted to
plea bargain with the prosecutor,” but was rebuffed. 753 F.2d, at
940. “The prosecutor’s flat refusal to engage in plea bargaining is
not surprising when viewed in light of the strength of the case
against Burger.” /bid. y

The argument that his partner’s representation of Stevens inhib-
ited Leaphart from arguing petitioner’s lesser culpability because
such reliance would be prejudicial to Stevens is also unsupported

by the record. Such an argument might have been more persuasive —

if the two defendants had been tried together.. As the State con-
ducted the prosecutions, however, each defendant’s confession was
used in his trial but neither was used against the coindictee.
Because the trials were separate, Leaphart would have had no par-
ticular reason for concern about the possible impact of the tactics
in petitioner’s trial on the outcome of Stevens’ trial. Moreover, in
the initial habeas corpus proceeding, the District Court credited
Leaphart’s uncontradicted testimony that “he in no way tailored
his strategy toward protecting Stevens.” 513 F.Supp., at 795. The
District Court concluded that his “testimony is strongly supported
by examination of trial record, which shows considerable effort to
gain mercy for petitioner.by portraying Stevens as the chief archi-
tect of the crime.” Ibid.®

®We note that Leaphart persisted in this strategy in his closing argument to the
jury at the second sentencing hearing. He argued, in part: :

“Each and every one of these acts, according to this statement which they have
introduced into evidence, the initiation of the crime, the act of robbery, the acts .

of sodomy, the acts of tying him up, the telling him to get in the trunk, the saying
let’s kill him, telling him where to drive, telling him we must get rid of the car,
we must get rid of the fingerprints, who was that? That was all.Stevens. Stevens
is not on trial here today. . ‘ et ihe

“Now, this boy here was seventeen years old at that time, and Stevens was
‘ twenty. Now, we all know that the influence that a twenty year old person has
over a seventeen year old person who he looks on a$jhis friend and companion.

And, all of this bears out that Stevens was the oneiNcontrol.... =...»

.

- “... You'may recommend life imprisonmentieven' ‘though you have found. AA
aggravating circumstances, or one or more of the aggravating circumstances given °:
se

to you in this charge to have existed beyond a reasonable doubt.

tig \

a
in


2128 United States Supreme Court

Zo

CALIFORNIA

In an effort to bolster his claim that an adverse effect resulted
from Leaphart’s actual conflict of interest, petitioner argues that
because he was tried in a small community in which the facts of
the crime were widely known, “it necessarily follows that the pub-
lic, and very possibly members of the jury, knew that the cases were
being tried on inherently inconsistent theories.” Brief for Petitioner

14. But this observation does nothing to establish an actual, delete- —

rious conflict of interest between Leaphart’s work for his client and
his partner’s representation of Stevens. If two unaffiliated lawyers,

complete strangers to one.another, had represented Leaphart and
Stevens respectively and had advanced the same defenses that were
advanced, the community would have had the same awareness that
the théories were inherently inconsistent. There was undoubtedly
_aconflict.of interest between Burger and Stevens because of the
nature of their defenses. But this inherent conflict between two par-
ticipants in a single criminal undertaking cannot be transformed
into a Sixth Amendment violation simply because the community
might be aware that their respective attorneys‘were law partners.

-. ante ‘IV
The District Court expressed much more concern about petition-
er’s argument that Leaphart had failed to develop and present miti-
gating evidence at either of the two sentencing hearings. See 513
F.Supp., at 796..At both hearings Leaphart offered no mitigating
evidence at all.'A capital sentencing proceeding “is sufficiently like

a trial in its adversarial format and in the existence of standards ~

for decision” that counsel’s role in the two proceedings is compara-
ble — it is “to ensure that the adversarial testing process work to
produce a just result under the standards governing decision.”
Strickland,. 466 U.S., at 686, 687. We therefore must determine
whether Leaphart’s performance in evaluating the mitigating evi-
dence available to him, and in deciding not to pursue further miti-
gating evidence, undermines confidence in the adversarial process
of this case. In embarking on our review of the District Court’s con-
clusions, we are guided by our most recent admonition on this sub-
ject: '

“Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable. Cf. Engle v. Issac,
456 U.S. 107, 133-134 (1982). A fair assessment of attorney
performance requires that every effort be made to eliminate .
the distorting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland v.
Washington, 466 U.S., at 689.

The evidence that might have been presented would have dis-
closed that | petitioner had an exceptionally unhappy and unstable
childhood.” Most of this evidence was described by petitioner’s

“Well, why is that the law? That’s the law because of the situations such as this
where you have a moving force, and you have a person who follows along and
does the beating [bidding] of an individual, who gets convicted of murder. And,
the person who actually perpetrated the crime was, and actually was the catalyst,
the moving force that carried it all about and did all these things even though this
person was a part of it, that the punishment of one is different from the punish-
ment of the other, or can be. That was in your discretion.

“And, in this particular situation, even though you say under these set of cir-
cumstances these things existed, Burger did none of that, except being involved
there at that time and going along with Stevens who was the leader.” 2 Tr. 252-
254 (second sentencing hearing).

7We have no doubt that this potential testimony would have been relevant mit-
igating evidence that the sentencer could not have refused to consider and could
not have been precluded from considering had counsel sought to introduce it. See
Hitchcock v. Dugger, 481 U.S. —, — (1987); Skipper v. South Carolina, 476 U.S.
—, — (1986); Eddings v. Oklahoma, 455 US. 104, 114-116 (1982); Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). In light of petitioner’s youth
at the time of the offense, evidence of his “neglectful, sometimes even violent,
family background” and testimony that his“mental and emotional development
were at a level several years below his chronological age” could not have been
excluded by the state court. Eddings, 455 U.S., at 116. It is equally clear, however,
that the undisputed relevancy of this information and the trial court’s correspond-
ing duty to allow its consideration have no bearing on the quite distinct question
before us. That issue is whether counsel acted reasonably in deciding not to intro-
duce the evidence out of apprehension that it would contribute little to his client’s
chances of obtaining a life sentence while revealing possibly damaging details
about his past and allowing foreseeably devastating cross-examination.

_ want to do wrong, basically within his structure. He’s just as determined to d

mother, who testified at length at the habeas corpus hearing. At the

age of 14 ‘she married Burger’s father, who was 16. She was
_ divorced from petitioner’ s father when petitioner was nine years

old: She remarried twice, neither of petitioner’s stepfathers wanted
petitioner in the home; one of them beat his mother in petitioner’s
presence when he was 11 and the other apparently “got him
involved with marijuana, and that was the whole point of his life,
where the riext bag was coming from, or the next bottle of beer.
And, this was the kind of influence that he had.” App. 91. When
his mother moved from Indiana to Florida, petitioner ran away
from his father and hitchhiked to Tampa. After he became
involved in an auto accident, she returned him to Indiana where
he was placed in a juvenile detention home until he was released
to his father’s custody. Except for one incident of shoplifting, being

‘ absent from school without permission, and being held in juvenile

detention — none of which was brought to the jury’s attention —
petitioner apparently had no criminal record before entering the .
Army. .

Leaphart was aware of some, but not all, of this family history
prior to petitioner’ s trial. He talked with petitioner’s mother on
several occasions,® an attorney in Indiana who had befriended peti-
tioner and his mother, and a psychologist. whom Leaphart had
employed to conduct an examination of petitioner in preparation
for trial. He reviewed psychologists’ reports that were obtained
with the help of petitioner’s mother. Jd., at 50-51. He also inter-
viewed Stevens and other men at Fort Stewart. Jd., at 51. Based on
these interviews, Leaphart made the reasonable decision that his.
client’s interest would not be served by presenting this type of evi-
dence.

His own meetings with petitioner, as well as the testimony of the
psychologist at the hearing on the admissibility of petitioner’ s con-
fession, convinced Leaphart that it would be unwise to put peti-
tioner himself on the witness stand. The record indicates that
petitioner never expressed any remorse about his crime, and the
psychologist’ s testimony indicates that he might even have bragged
about it on the witness stand.? Leaphart formed the opinion that
Burger enjoyed talking about the crimes; he was worried that the
jury might regard Burger’s attitude on the witness stand as indiffer-
ent or worse. Id., at 75-76. Quite obviously, as the District Court

8There was a conflict in the testimony with respect to the extent of these con-
versations which the District Court described in its first treatment of the issue
as follows:

“Mrs. Foster testified that Mr. Leaphart made only very minimal efforts to dis-
cuss petitioner’s case with her and to develop possible mitigating factors. Mr. Lea-
phart’s account suggested that he had talked with Mrs. Foster several times and
made adequate if hardly ideal inquiries. Mr. Leaphart’s account is supported by
his bill, which lists two conferences totaling three and a half hours prior to trial
and four conferences of unstated duration prior to retrial. Defendant’s Exhibits
1, 2. Thus, the Court must conclude that Mr.-Leaphart’s investigation. appears
to meet at least minimal professional standards.” 513 F.Supp., at 796, n.6.

On remand from the Court of Appeals, the District Court concluded:

“Interviews with Burger, Burger’s mother, and an attorney who had befriended
Burger and his mother, in addition to his consultation with a psychologist, and _
review of psychologists’ reports obtained through Burger’s mother convinced Lea-
phart that a more exhaustive investigation into Burger’s background would not
be a profitable pursuit. He also concluded that presenting background and charac-
ter evidence to the sentencing jury would have been at best unproductive, and
at worst, harmful to his client.” Burger v. Kemp, 753 F.2d 930, 935 (CA11 1985)
(footnotes omitted; citations to transcript of second sentencing hearing omitted).

a th Do you have an opinion, based on your examination of Mr. Burger, both
your use of Wechsler IQ test and your other examination, and based on your expe-
rience as a psychologist, do you have an opinion as to whether or not he could
appreciate the consequences of the making of a confession?

“A. I would think he would enjoy the idea, frankly. This would be a great oppor-
tunity to display his psychopathological behavior. He’d probably shout in the
wind as much as he could of all the things he might have done. See

“Q. But could he appreciate the trouble or the consequences of, or the magni-
tude of what he was doing? :

“A. His sande of deficiency with a relative 10 of 82 would not [be] beyond the
concept of understanding right and wrong. His psychopathology would make him .

evil as a preacher is determined to do [good], if I could use that as an illustration.
So in the concept of appreciating any confession he would make, it would be to”
him almost a compelling need, because any psychopath has no pleasure, has-n

» joy unless he can at some point along the line let the world know of his behavior, C

which to most of us is very unseemingly.” 1 Tr. 249-251 (first sentencing hearing)


‘tion of the conflicting interests of petitioner and Stevens had an .

2132

Leena States Supreme Court>

deciiion was based on an erroneous view of the law and thus could
not be reasonable." See Kimmelman v. Morrison, 477 U.S. —, —
(1986) (slip op. 18) (counsel’s judgment found to be contrary to pre-
vailing professional norms because justifications offered by counsel
reflected ignorance of the law or attempt to shift blame for inade-
quate preparation). :

Setting aside the speculation as to counsel’s motive, it besomed
clear that -his joint representation of petitioner and Stevens pre-
cluded him, as a matter of professional responsibility, from pursu-
ing the lesser-culpability argument in petitioner’s appellate brief.
It would have been inconsistent with his duty of loyalty to Stevens
to argue that the Georgia Supreme Court should reduce petitioner’s
sentence to life imprisonment because Stevens was the more culpa-
ble defendant who deserved the death sentence for this heinous
murder.

It is difficult to imagine a more direct conflict than existed-here,
where counsel was preparing the appellate brief for petitioner at the
same time that he was preparing the appellate brief for Stevens, and

_- where the state statute specifies that one of the roles of that appel-
late process. is to consider the comparative culpability and sen-

tences of. defendants involved in similar crimes. Counsel’s

abandonment of the lesser-culpability argument on appeal, the
state at which the two cases would be reviewed.contemporaneously,
is indicative of the “ ‘struggle to serve two masters.’ ” See Holloway

v. Arkansas, 435 U.S., at 482, quoting Glasser v. United States, 315.

US., at 75. This record compels a finding that counsel’s representa-

adverse effect on his performance as petitioner’s counsel. ,
Defense counsel’s representation of conflicting interests also

. placed him in an untenable position at an earlier stage of the pro-

ceedings — during pretrial plea bargaining.. The two partners
helped each other during that period with their two cases and, as
part of the pretrial preparation, petitioner’s counsel talked with
both petitioner and Stevens “from the beginning.” App. 32. Coun-
sel-was notin a position to negotiate with the prosecution to the
detriment of Stevens. Although he asserted that he continually
attempted to negotiate with the prosecutor on behalf of petitioner
for a sentence of life imprisonment, he conceded that he never
offered. the prosecutor petitioner’s. testimony against Stevens. Id.,
at 52, 74-75: Certainly, counsel was not reasonable in expecting a
plea bargain if he was not offering the prosecutor the most signifi-
cant bargaining chip he possessed — petitioner’s testimony against
Stevens.

that he did: not raise the issue of the difference in the culpability of the two
coindictees in petitioner’s appellate brief because, although he thought it was the
key issue at trial, App. 64, he though “that was a jury decision based on the
evidence,” id., at 53, and that the only way he could see to raise the issue was
on the theory of “lack of evidence to sustain the finding of the jury as to the —
what punishment to give.” Id., at 54. This basis for the action certainly cannot
be considered strategically sound because it reflects an erroneous legal interpreta-
tion of appellate review in capital cases in Georgia. By failing to argue on petition-
er’s behalf that he was less culpable than Stevens, counsel diminished the
reliability of the Georgia Supreme Court’s proportionality review in this case.
This Court has held that proportionality review is an important component of
the Georgia capital-sentencing system. See Gregg v. Georgia, 428 U.S. 153, 198,
204-206 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). Therefore,
even if counsel’s assistance on appeal had not been hindered by an actual conflict
of interest, one may well question whether his conduct in this regard met the mini-
mal level of professional reasonableness.

11Counsel’s self-serving declarations that he did not permit his representation
of Stevens to affect his representation of petitioner cannot outweigh the conflict
revealed by the record itself. Counsel is not a fully disinterested party to this pro-
ceeding due to the collateral consequences that could result from a determination

’ that he rendered ineffective assistance of counsel. He certainly has an interest in

disavowing any conflict of interest so that he may receive other court appoint-
ments that are a source of clients for the criminal defense work of the partners’
practice. App. 44. The approximate $9,000 fee that counsel received in this case
for his representation of petitioner was the largest the firm had ever received for
a criminal case. Ibid. This payment, along with the payment received by the part-
ner for his court ee in the Stevens case, went into their firm account.
Id., at 31.

12The Court discounts counsel’s failure to ie the prosecutor petitioner’ 's tes-
timony against Stevens by stating that there is no indication that the prosecutor
would have been receptive to the offer. Ante, at —(slip op. 9). The Court focuses
on the strength of the evidence of petitioner’s and Stevens’ guilt and concludes

earlier trials and whether it extended to the theories on which petitionet’s ‘and

Cc
I also disagree with the Court’s rejection of petitioner’ san

that the actual conflict of interest was aggravated by the tia a :

knowledge of the cases in the small area from which the j jury was
drawn. Ante, at — (slip op. 11). Juror knowledge that the two cases
were being tried by local law partners on inconsistent theories .
could create a conflict of interest because, in order to preserve the -
credibility of their argument in either case, the lawyers would ‘have:

to deny the validity of their contradictory approach in the other.

A crucial feature in any case is the credibility of a defendant’ s: law-
yer in the minds of the jury. 4 ceestis
The Court’s observation that “the community ‘would have had.
the same awareness that the theories were inherently inconsistent”
if two unaffiliated lawyers had advanced the inconsistent defenses,
ante, at — (slip op. 11), may well be true, but it says nothing : of the
difference that awareness could make in the community's view of
the cooperating lawyer-partners’ credibility. The Court fails to rec-
ognize that, although the credibility of two unaffiliated attorneys
presenting inconsistent arguments would not be questioned, the
credibility of two local law partners assisting each other in the two
cases could well be questioned if it was known that the lawyers.
working together presented inconsistent theories in the separate
cases. Obviously, a jury might suspect that, in one of the cases, the:
lawyers were pressing an argument they did not believe to be true.
The adverse effect of this conflict on credibility would have been
magnified when petitioner’s and Stevens’ cases were remanded for:
the second sentencing proceeding and the blame-shifting argu-.
ments were repeated. By the time of the second sentencing hearing,
the verdicts in the original trials and sentencing proceedings had
become known to the community. 13 Where, as here, the commu-_

that there is no reason to doubt that the prosecutor refused to discuss the matter.
prior to the first trial and insisted on seeking the death penalty after the remand. .

of the case. Ante, at — - — (slip op. 9-10). This reasoning, however, misses the

point of petitioner's argument. The question is whether the prosecutor would.

have insisted on seeking the death penalty against petitioner if counsel had.
attempted to persuade him otherwise by offering him petitioner’s testimony,
against Stevens.

Although it is easy to assume that the prosecutor would not have indulged in. 4

plea bargaining in this case because of the significant evidence of guilt, that .
approach ignores the reality of bargaining in capital cases. The evidence of guilt ©
is not the only factor prosecutors consider. Rather, the relevant factors include:
the aggravating and mitigating circumstances surrounding the case as well as prac-,
tical considerations such as the cost of pursuing the death penalty..See Gross &

Mauro, Patterns of Death, 37 Stan. L.Rev. 27, 106-107 (“Since death penalty,

prosecutions require large allocations of scarce prosecutorial resources, prosecu-
tors must choose a small number of cases to receive this expensive treatment”).
Such practical considerations might weigh even more heavily prior to a second.
capital-sentencing trial on remand from the state appellate court’s reversal of the

first death sentence. Furthermore, there may be collateral evidentiary consider-

ations during the pretrial phase that warrant a plea to life imprisonment for one
coindictee in exchange for evidence that will strengthen the other case. For exam-
ple, in this case, if the prosecutor had thought that there was a likelihood. that:
petitioner’s counsel might prevail on his argument that petitioner’s confession
should be suppressed, and if petitioner’s counsel had offered petitioner’s testi-
mony against Stevens, the prosecutor might have decided that rather than risk
the possibility of his case against petitioner being destroyed by suppression of hi$
confession, he would permit petitioner to plead to a life sentence in exchange for
his testimony against Stevens and pursue the death sentence against Stevens. .::

Petitioner’s attorney had the duty to serve his role in the adversary system and
make an offer on petitioner’s behalf to testify against Stevens if petitioner was
willing to do so, and thereby avoid the possibility of being executed. Petitioner’s
burden of showing that the conflict of interest adversely affected his counsel’s per-

formance therefore was met. The Court’s suggestion that whether the prosecutor

would have accepted such an offer is the determinative factor verges on requiring
a showing of prejudice which, of course, is inappropriate in the context of peti-
tioner’s conflicts-of-interest claim. See n. 6, supra. Counsel’s complete failure to
offer petitioner’s testimony against Stevens in a capital case of this nature where
petitioner’s lesser culpability was suggested not only by his own confession ‘but
was corroborated by testimony of the key witness, has to be below minimal er.
sional standards.

13Counsel testified that there were several newspaper accounts of the proceed-

ings between the first and second sentencing hearings and that he was certain. that - : ‘ < :
the people in the community were aware of the sentence received at the first trial. ©.

App. 55. The record indicates that 23 out of the.35 persons who were asked during

voir dire at the second sentencing hearing whether they had heard about the first oe

trial responded affirmatively. Second Tr. 33-34, 40, 48. Counsel made no. effort
to question these prospective jurors about the extent of their knowledge of:the

Stevens’ trials had been argued. Counsel also testified, in explanation of his failure
to seek a change of venue, that he had expected that the jurors who sat at petition-

ers’ trial would be aware of all the pretrial proceedings, including.an bpermensmc.

effort for change of venue: App. 54-55.

re


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- DAILY OPINION SERVICE

United States Supreme Court 2133

nity was aware that the same law partners together were represent-
ing two defendants in capital cases and that they were arguing
inconsistent theories that placed the blame on that defendant who
did not happen to be on trial at the moment, the lawyers’ credibility
and their effectiveness as counsel were significantly undermined.
wD

Finally, I conclude that the trial court in this case erred in failing
to inquire into whether petitioner knowingly and voluntarily had

waived his constitutional. right to  conflict-free representation.

When this Court, in its opinion in Cuyler v. Sullivan, addressed the
question of the state trial court’s duty to make such an inquiry, it
specified: “Unless the trial court knows or reasonably should know
that a particular conflict exists, the court need not initiate an
inquiry” (emphasis added). 446 U.S., at 347. Here, the trial judge,
who appointed the two defense counsel and who presided over both
»petitioner’s trial and Stevens’ trial, should have known of the con-
flict from the outset inasmuch as the two confessions, given before
the two partners were appointed, were in direct conflict on the
question as to which defendant was the prime architect of the
crime. In any event, by the time the appeal was taken, ‘the trial
court, undoubtedly familiar with the role that comparative culpa-
bility plays in appellate review of capital cases under the Georgia
statute, was well aware that the primary defense of each defendant
against the death sentence was that the other was more culpable.
It therefore was the court’s obligation to inquire whether petitioner
had consented to the joint representation with the knowledge of the
possible conflicts of interests. See Glasser v. United States, 315 USS.,
at 71 (“The trial court should protect the right of an accused to have
the assistance of counsel”). The court could not properly rely on
an assumption that petitioner had given knowing and voluntary
consent once the judge became aware of the actual conflict, particu-
larly where he was made aware during the suppression hearing that
petitioner was a 17-year-old at the time of the appointment of

counsel, had an I.Q. of 82, functioned at the level of a 12-year-old, -

and was diagnosed as having psychological problems. First Tr. 244,
245, 247-248.

II

Even if no conflict of interest existed in this case, I would still
dissent from the Court’s denial of relief because petitioner was
deprived of the effective assistance of counsel in connection with
his capital-sentencing proceeding. His counsel failed to investigate
mitigating evidence and failed to present any evidence at the sen-
tencing hearing despite the fact that petitioner was an adolescent
with psychological problems and apparent diminished mental
capabilities. I agree with the Court that the adversarial nature of
Georgia’s capital-sentencing proceedings is sufficiently similar to
a trial that petitioner’s claim is governed by the same standards that
apply to general claims of ineffective assistance of counsel at trial.
Ante, at — (slip op. 12); see Strickland v. Washington, 466 U.S.,
at 686-687. It is also important to “keep in mind that counsel’s
function, as elaborated in prevailing professional norms, is to make
the adversarial testing process work in the particular case.” Id., at
690. Applying that standard to petitioner’s claim in light of the
record of this case yields a finding that the inaction-by petitioner’s
lawyer was “outside the wide range of professionally competent
assistance” and was prejudicial to petitioner. Jd., at 690, 692.

In Strickland, this Court specifically addressed counsel’s duty to
investigate. It explained:

“[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchal-
lengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that rea-
sonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make rea-
sonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any ineffec-
tiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s
judgments.” /d., at 690-691.

See also Kimmelman v. Morrison, 477 U.S. — (1986). The limita-
tion counsel placed on his investigation of the evidence of petition-

er’s mental capabilities and psychological makeup despite the
indications that petitioner had problems in these respects was not
supported by reasonable professional judgment.

Counsel stated that he based his decision not to move the court
for a complete psychological examination of petitioner on his prior
experience with the mental hospital where, he assumed, petitioner
would be sent for the examination. App. 62-63. He stated that “the
results I’ve had with personnel at Central Hospital as far as the
defense is concerned ... hasn’t been good at all.” Jd, at 63. He
added that he thought that any further examinations would yield
the same psychopathic diagnosis reached by the psychologist who
had examined petitioner once briefly and primarily to administer
an I.Q. test for purposes of the hearing on whether petitioner’s con-
fession was admissible. [bid.

Counsel’s failure to request an examination because of what he
considered to be a biased procedure constituted a breakdown in the
adversarial process. If in fact the procedure for psychological exam-
inations of an indigent criminal defendant in that jurisdiction was
biased, the role of petitioner’s counsel at least was to seek an alter-
native examination process or to challenge the biased procedure.
Counsel’s decision to forgo the psychological examination imper-
iled petitioner’s ability to counter the prosecutor’s argument that
he deserved to be executed for his role in the murder and therefore.
undermined the reliability of the sentencing proceeding. Moreover,
such a decision to proceed without the examination in a case in
which an adolescent with indications of significant psychological
problems and diminished mental capabilities faces the death pen-
alty is contrary to professional norms of competent assistance. The |
usefulness of a thorough evaluation in a case where there are indi-
cations that the capital defendant has problems of that kind is obvi-
ous. See Eddings v. Oklahoma, 455 U.S. 104, 116 (1982); cf. Ake
v. Oklahoma, 470 U.S. 68 (1985). .

Counsel’s decision not to investigate petitioner's family or child-
hood background also was not within the range of professionally
reasonable judgment. Viewed as of the time he decided not to get
in touch with any family member or to investigate any place where '
petitioner had lived, counsel provided inadequate assistance. He
relied on petitioner to suggest possible witnesses or mitigating evi-
dence. But his question to petitioner whether he could produce evi-
dence of “anything good about him,” App. 51, hardly could be
expected to yield information about petitioner’s childhood and
broken home. It is unlikely that in response to that question a
defendant would volunteer the facts that his father threw him out
of the house, that his mother did the same, that his stepfathers beat
him and his mother, or that one stepfather involved him in drugs
and alcohol at age 11. All this is mitigating evidence that could be
highly relevant. See Eddings v. Oklahoma, 455 USS., at 107. Fur-
thermore, counsel testified that he spoke with petitioner perhaps
“half a dozen times,” the longest being “(p]robably about an hour.”
App. 51. These bare six hours provided counsel little time to dis-
cuss possible mitigating evidence for the sentencing proceeding
because counsel surely also had to discuss in detail the circum-
stances surrounding petitioner’s confession which he was challeng-
ing and all the other features of the guilt/innocence phase of the
trial. Moreover, after petitioner’s death sentence was vacated on
appeal and the case was remanded, counsel did not perform any
further investigation whatsoever during the 9-month period before
the second hearing. He simply proceeded in the same manner that
had resulted in petitioner’s being sentenced to death at the first
hearing. /d., at 71.

The only reason counsel spoke to petitioner’s mother at all was
because she sought him out after learning elsewhere that her son
was charged with murder. /d., at 83. Even after petitioner’s mother
initiated the contact, counsel’s conduct was inexplicable. He testi-
fied that he never explained the penalty phase of the trial to peti-
tioner’s mother or what evidence then could be presented. Id., at
50. The Court finds reasonable counsel’s decision not to have peti-
tioner’s mother testify because he concluded that her testimony
might be counterproductive in that it might reveal a petty offense
petitioner had committed. Ante, at — (slip op. 15-16). That deci-
sion is a prime example, however, of a strategic choice made after
less-than-adequate investigation, which therefore is not supported

2130 United States Supreme Court

CALIFORNIA

I

> i A
Petitioner’s first claim rests on his right to conflict-free assistance
of counsel. As long ago as Glasser v. United States, 315 U.S. 60

(1942), this Court recognized that such assistance is a component

of the Sixth Amendment right to effective assistance of counsel. Id.,
at 70. This right is so fundamental in our adversarial system of
criminal justice that public defender offices in many jurisdictions
have rules precluding representation of more than one of the crimi-
nal defendants involved in the same offense.? Under the Federal
Rules of Criminal Procedure® and under the rules governing pro-
fessional responsibility,* consent of a criminal defendant is a neces-
sary prerequisite to joint representation, and trial court inquiry
into whether the defendant has made a knowing and voluntary

’ waiver of his right to conflict-free representation is strongly encour-

aged, if not required.° I do not read the majority opinion as depart-

2In Cuyler v. Sullivan, 446 U.S. 335 (1980), this Court noted that the vast
majority of public defender offices have a strong policy against multiple represen-
tation and that approximately half never undertake such representation. Jd., at
346, n. 11; see also Lowenthal, Joint Representation in Criminal Cases: A Critical
Appraisal, 64 Va. L. Rev. 939, 950, and n. 40 (1978). We further observed in
Cuyler that the private bar may be less aware of conflicts of interests in such
instances. 446 U.S., at 346, n. 11. This observation certainly is supported by the
testimony of petitioner’ s attorney in this case that he never even considered that
a conflict might arise out of the representation of two defendants facing the death
penalty for the commission of the same murder. See App. 32-34.

3Criminal Rule 44(c) provides in relevant part:
“Whenever two or more defendants have been jointly charged . . . and are repre-
sented by ... retained or assigned counsel who are associated in the practice of
law, the court shall promptly inquire with respect to such joint representation and
shall personally advise each defendant of his right to the effective assistance of
counsel, including separate representation.”

“Ethical Canon 5-16 of the ABA Code of Professional Responsibility states:
“In those instances in which a lawyer is justified in representing two or more cli-
ents having differing interests, it is nevertheless essential that each client be given

the opportunity to evaluate his need for representation free of any potential con-

flict and to obtain other counsel if he so desires. Thus, before a lawyer may repre-
sent multiple clients, he should explain fully to each client the implications of the
common representation and should accept or continue employment only if the
clients consent.”

Disciplinary Rule 5-105(D) states; ‘

“If a lawyer is required to decline employment or to withdraw from employment
under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated
with him or his firm, may accept or continue such employment.”

See also ABA: Model Rules of Professional Conduct 1.7 and 1.10(a) (1984). The
American Bar Association, in its Standards for Criminal Justice, explains:
“Except for preliminary matters such as initial hearings or applications for bail,
a lawyer or lawyers who are associated in practice, should not undertake to defend
more than one defendant in the same criminal case if the duty to one of the defen-
dants may conflict with the duty to another. The potential for conflict of interest
in representing multiple defendants is so grave that ordinarily a lawyer should
decline to act for more than one.of several codefendants except in unusual situa-
tions when, after careful investigation, it is clear that:

(i) no conflict is likely to develop;

(ii) the several defendants give an informed consent to such multiple represen-
tation;

(iii) the consent of the defendants is made a matter of judicial record. In deter-
mining the presence of consent by the defendants, the trial judge should make
appropriate inquiries respecting actual or potential conflicts of interest of counsel
and whether the defendants fully comprehend the difficulties that an attorney
sometimes encounters in defending multiple clients.

In some instances, accepting or continuing employment by more than one defen-
dant in the same criminal case is unprofessional conduct” (emphasis in original).
ABA Standards for Criminal Justice 4-3.5(b) (2d ed. 1979).

In Strickland v. Washington, 466 U.S. 668 (1984), this Court stated that the
Sixth Amendment relies upon the “legal profession’s maintenance of standards
sufficient to justify the law’s presumption that counsel will fulfill the role in the
adversary process that the Amendment envisions.” Jd., at 688. Where, as here,
the legal profession’s standards were not followed, no such presumption is appro-
priate.

SSubsequent to petitioner's trial, the Georgia Supreme Court, exercising its
supervisory authority, adopted a rule that in capital cases codefendants must be
provided with separate and independent counsel. Fleming v. State, 246 Ga. 90,
270 S.E.2d 185, cert. denied, 449 U.S. 904 (1980). The court cited the provision
in the Code of Professional Responsibility that requires that any lawyer affiliated
in a firm with a lawyer who is disqualified must also be disqualified, and thereby
indicated that the rule applies to representation by a single attorney or by mem-
bers of the same firm. /d., at 93, n. 7, 270 S.E.2d, at 188, n. 7. The court explained
that a rule of separate and independent representation “is especially necessary
where the death penalty is sought, because in these cases even a slight conflict,

ing from the Court’s earlier approval of those practices, see Cuyler
v. Sullivan, 446 U.S. 335, 346, nn. 10 and 11 (1980), although I. -
believe that in this case it definitely has misapplied the > Sixth
Amendment standard that is informed by the rules.

This Court recognizes the unique nature of claims that arise out
of a conflict of interest and does not impose on such claims the two-
prong standard of inadequate performance and prejudice, see
Strickland v. Washington, 466 U.S., at 687, that applies to general
claims of ineffective assistance. Instead, prejudice is presumed if

_ a defendant demonstrates that his attorney “ ‘actively represented .

conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer’s performance. >” Id., t 692, quoting
Cuyler v. Sullivan, 446 U.S., at 350, 348.°

The presumption of prejudice in cases presenting a conflict of
interest that adversely affected counsel’s performance is warranted
because the duty of loyalty to a client is “perhaps the most basic”
responsibility of counsel and “it is difficult to measure the precise
effect on the defense of representation corrupted by conflicting
interest.” Strickland v. Washington, 466 U.S., at 692. This diffi-
culty in assessing prejudice resulting from a conflict of interest is -
due in part to the fact that the conflict may affect almost any aspect
of the lawyer’s preparation and presentation of the case. Because _
the conflict primarily compels the lawyer not to pursue certain
arguments or take certain actions, it is all the more difficult to dis-
cern its effect. See Holloway v. Arkansas, 435 U.S. 475, 490 (1978)
(“in a case of joint representation of conflicting interests the evil

. is in what the advocate finds himself compelled to refrain from

doing, not only at trial but also as to possible pretrial plea negotia-
tions and in the sentencing process” (emphasis in original)). The
presumption of prejudice in conflict-of-interest cases is particularly
appropriate because lawyers are charged with the knowledge that
they are obliged to avoid such conflict. See n. 4, supra. A judge can
avoid the problem by questioning the defendant, at an early state
of the criminal process, in any case presenting a situation that may
give rise to conflict, in order to determine whether the defendant
is aware of the possible conflict and whether he has waived his right
to conflict-free representation.

B
Although the Court purports to _apply this conflict-of-interest
ineffectiveness standard in the present case, see ante, at — (slip op.
7), I cannot agree with its conclusions. Contrary to the Court’s rea-
soning, there simply can be no doubt that petitioner’s court-
appointed attorney actively represented conflicting interests
through his role in the defenses of petitioner and had coindictee,

irrelevant to guilt or innocence, may be important in the sentencing phase.” Jd.,
at 93, 270 S.E.2d, at 188; see also id., at 95, 270 S.E.2d, at 189 (Bowles, J., concur-
ring) (“No two defendants share equal responsibility for a crime. Usually one is
more culpable than the other or for any number of reasons has a greater degree
of responsibility for what occurred. One may also be more entitled to leniency
based on such factcrs as age, intelligence, motive, background, previous conduct
or record, etc. Common counsel eliminated any practical possibility of plea
bargaining”). But see id., at 95, 97, 270 S.E.2d, at 189, 191 (Hill, J., concurring
specially) (cautioning that although presumption against joint representation is
appropriate, a per se rule against joint representation may not be because capital
defendants should be able to waive right to conflict-free representation if it would
be to their benefit); id., at 98, 270 S.E.2d, at 191 (Jordan, P.J., dissenting) (arguing
that defendant in that case should be permitted opportunity to make informed
and voluntary waiver of right to conflict-free representation).

What happened in petitioner’s case is therefore unlikely to be repeated in Geor-
gia.

©The distinction between a prejudice showing and a showing of adverse effect
on an attorney’s performance apparently has been difficult for some courts to dis-
cern. See generally Note, Conflicts of Interest in the Representation of Multiple
Criminal Defendants: Clarifying Cuyler v. Sullivan, 70 Geo. L.J. 1527, 1536-1561
(1982). The Court’s decision in Strickland v. Washington, made clear, however,
that demonstrating that a conflict adversely affected counsel’s performance does
not equate with the standard applied to general ineffectiveness claims that
requires a showing that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
466 U.S., at 694. The adverse effect standard is necessary in conflict-of-interest
cases to trigger the presumption of prejudice because such a presumption in these
cases is of a more limited nature than the automatic presumption of prejudice
that arises in cases of actual or constructive denial of the assistance of counsel
altogether and cases of state interference with assistance of counsel. /d., at 692.


ow 4. &

DAILY: OPINION SERVICE ~

United States Supreme Court 2131

- Thomas Stevens: ‘Defense counsel was appointed to represent peti-

tioner,-and his partner in their two-partner law firm was appointed

to represent Stevens. App.:30-31..The two. lawyers interviewed both.

defendants “from the’ beginning” and assisted in the preparation

of:both cases.,Jd., at 32..The partner “sat in” with counsel at peti-.
. tioner's trial-and “helped”. him. /d.,.at 35.- Apparently, others

viewed the: two* lawyers as joint counsel for petitioner at his first
trial inasmuch.as the prosecutor directed the attention of the pro-
spective jurors during voir dire to both lawyers and asked the jurors
whether they ever had been represented by either of them. First Tr.
28, 37, 42, 48.” The partner is listed as appearing for petitioner Bur-
ger.in the transcript of that trial. Jd., at 1. While there is no record
evidence that petitioner’s counsel assisted during Stevens’ trial,
counsel conceded that, in addition to his assistance in pretrial
research, strategy, and interviews of Stevens, he prepared the
appellate briefs for both petitioner and Stevens after the second
sentencing Proceedings. App. 54. See 753 F.2d, at 941 (District
Court opinion, adopted by Court of Appeals as its own, noting that
“it may be said that the two attorneys at times acted as one while
each prepared for. trial and appeal”). The facts therefore demon-

strate that the two lawyer-partners actively represented both peti- —

tioner and Stevens.

This active representation of the two coindictees by petitioner’ s
counsel constituted representation of actual conflicting interests.
Petitioner’s and Stevens’ interests were diametrically opposed on
the issue that counsel considered to be crucial to the outcome of
petitioner’s case — the comparative culpability of petitioner and
Stevens. Petitioner confessed to participation in the crime but
placed the primary blame on Stevens. Second Tr. 278. In his con-
fession, petitioner stated that he thought they simply would aban-
don the taxicab. Ibid. Botsford, who had been with petitioner and
Stevens in the taxicab for a while, corroborated petitioner’s state-
ment in his testimony at both petitioner’s and Stevens’ trials. When
questioned about what petitioner and Stevens had told him they
were going to do with the taxicab and its driver, Botsford replied:

“Well, Tom Stevens said that he thought they should kill him.

And, I told him I thought he was crazy. And, Burger didn’t like

the idea of killing him either. Burger said that they ought to

let him go, that they ought to drive off in the woods somewhere
and let him out, and then take the car somewhere and put it

like, I think somebody mentioned the ocean.” Jd., at 112-113;

see also First Tr. 100, 111 (Botsford agreeing that petitioner

“was just sorta going along, sorta doing sorta like Stevens was
telling him to do”).

’ Petitioner stated that after he had checked to see if the driver ¥ was

all right, Stevens returned to where they had stopped the taxicab
and told petitioner to drive the car into the pond. Second Tr. 278.
Stevens also confessed, but in doing so he pointed to petitioner as
the more culpable. See Stevens v. State, 242 Ga. 34, 35, 247 S.E.2d
838, 840 (1978). Stevens stated in his confession that he had not
wanted to kill the taxicab driver and had not known that petitioner

was planning to drive the automobile into the pond. /bid. Stevens’

attempt to argue his lesser culpability was his “sole mitigatory
defense” at his second sentencing trial. See Stevens v. State, 245 Ga.
583, 585, 266 S.E.2d 194, 197, cert. denied, 449 U.S. 891 (1980).

The Court disregards this direct conflict between petitioner’s and
Stevens’ respective interests and, instead, attempts to minimize the
active representation of both defendants by the two lawyer-
partners. The Court opines that the “overlap of counsel” did not

7The transcripts of petitioner’s first trial, including his first sentencing hearing,
and of his second sentencing hearing were submitted as Exhibit A and Exhibit
C, respectively, to respondent’s answer to petitioner’s federal habeas corpus peti-
tion in District Court. See 1 Record, pleading 11. Citations to the transcript of
the first trial and hearing are designated “First Tr.” and citations to the second
hearing are designated as “Second Tr.”

8The great degree of deference the Court accords the lower courts’ conclusions
on this matter, ante, at — - — (slip op. 8-9) and its emphasis on the “heavily fact-
based rulings,” /d., at — (slip op. 9), appear misplaced in the analysis of this case.
The question of multiple representation “is a mixed determination of law and fact
that requires the application of legal principles to the historical facts,” Cuyler v.
Sullivan, 446 U.S., at 342, as are the general ineffectiveness question and the

“performance and prejudice components of the ineffectiveness inquiry.”

Strickland v. Washington, 466 U.S., at 698.

constitute an “active representation of competing interests” by
petitioner’s counsel. Ante, at — (slip op. 7). The Court supports this
assertion by blandly relying on its perception of a shortage of law-
yers to- handle these cases, on its view of the benefits that defen-
dants may. derive from joint representation when there is a
common defense, and on the assumption that lawyers are aware of
their duty of loyalty to clients. Jbid. The Court, however, does not
identify any record evidence indicating that there were no other
lawyers available for appointment. In addition, the other factors
are of questionable relevance in this case which did not involve a
common defense for the two coindictees and in which counsel did
not even consider that a conflict of interest might exist.

The Court also points to the fact that petitioner and Stevens were

_ tried separately and relies on the observation in Cuyler v. Sullivan,

446 USS., at 347, that separate trials in that case had “reduced the
potential for a divérgence in [the defendants’] interests.” Ante, at
— (slip op. 7). The separate trials in this case, however, did abso-
lutely nothing to reduce the potential for divergence of interests at
the two critical stages that petitioner argues were adversely affected
by the conflict of interest, that 1 is, pretrial plea negotiations and
post-trial appeal.®

The Court’s further attempt to disavow the existence of an actual
conflict of interest by suggesting strategic reasons for the actions
taken by petitioner’s counsel on appeal and in pretrial negotiations
is, with all respect, not supported by the record. The Court’s sugges-
tion that counsel’s failure to make a “lesser culpability” argument
on appeal was the result of a sound strategic conclusion that the
claim was weak, ante, at — (slip. op 8), is sheer speculation. As
demonstrated by petitioner’s confession and Botsford’s testimony,

the lesser-culpability argument certainly did not ‘lack an evidenti-

ary foundation. This speculation that counsel dropped the claim
after trial because it was a weak argument for appeal is counterin-

tuitive. The lesser-culpability argument would have. been stronger.

on appeal than at trial. On appeal, the reviewing court had both
cases before it at the same time and thus was in the actual position
of being able to compare the cases at the time it reviewed the appro-
priateness of the sentences imposed. ~

Moreover, the speculation that counsel dropped the argument on
appeal because of its weakness ignores the fact that comparative
culpability is directly relevant to the statutorily mandated appellate
review of capital cases in Georgia. The State’s statute specifies that
the Georgia Supreme Court’s review of capital cases is to include
consideration “[w]hether the sentence of death is excessive or dis-
proportionate to the penalty imposed in similar cases, considering
both the crime and the defendant” (emphasis added). Ga. Code
Ann. §.17-10-35(c)(3) (1982). The evidence and argument pres-
ented at trial concerning petitioner’s role as a follower of Stevens’
directions and petitioner’s lesser involvement in the assaultive
behavior prior to the murder would clearly be relevant on appeal
under the terms of the statute. Hence, even if counsel did base his
decision on the “strategic” reason suggested by the Court,!° that

°The fact that defendants are given separate trials may eliminate some prob-
lems created by a conflict of interest, but severance does not alleviate numerous
other dilemmas faced by lawyers representing two or more defendants charged
and indicted together. See Developments in the Law, Conflicts of Interest in the
Legal Profession, 94 Harv.L.Rev. 1244, 1380 (1981); Geer, Representation of
Multiple Criminal Defendants: Conflicts of Interest and the Professional Respon-
sibilities of the Defense Attorney, 62 Minn. L.Rev. 119, 143-144 (1978). The right
to conflict-free representation by counsel in pretrial and appellate proceedings of
criminal cases may be as significant as such representation at trial. Jd., at 125-127.
In an earlier discussion of the hazards of an attorney’s representing more than
one coindictee, the Court described the very conflicts that present themselves in
this case:
“Joint representation of conflicting interests is suspect because of what it tends
to prevent the attorney from doing. For example, in this case it may well have
precluded defense counsel . . . from exploring possible plea negotiations and the
possibility of an agreement to testify for the prosecution, provided a lesser charge
or a favorable sentencing recommendation would be acceptable. Generally speak-
ing, a conflict may also prevent an attorney from challenging the admission of
evidence prejudicial to one client but perhaps favorable to another, or from argu-
ing at the sentencing hearing the relative involvement, and culpability of his cli-
ents in order to minimize the culpability of one by emphasizing that of another.”
Holloway v. Arkansas, 435 U.S. 475, 489 (1978). ~

10Contrary to the Court’s speculation, counsel himself did not claim to have
dropped the lesser-culpability argument because of its weakness. Rather, he stated


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. “make. the. most

and. several: Bibb}

county officers were in the prison at
the time of the execution. ‘
Mr. Churchwell pleaded with Bur-

: to: ‘come ‘clean’’.just before the
tion. - Contents of a confer-

with the prison chaplain: were

~ Fo his-sister, Pauline - Burden, the
Negro gave his last 18 cents, saying.

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‘wife, in a house on Rock street: in
South Macon at the time of the fata)

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Same” ded with the

'|Club Votes’ to Assist Officers:

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| Division, Cheek of Federal Agens|

~ ey: Orders New Report. on
« Conditions Here *
By ARTHUR H-MINOR: =
(Macon Telegraph Correspondent)
/ WASHINGTON, 'D; .C.,: Feb. 24.~
A ‘new inspection of Macor’s Herbert
Smart airport has-been ordered by
Cart Well,: chief. of the Miami divi-
sion of the Bureau’ of Air: Com-
merce, it was learned faday at the

bureau’s headquarters here.
« “Welt has advised us that he has

St., New. York, Ni‘Ye_.

KIWANIANS TA

13. W. 1th

"PROBATION WORK (==

as Part of National Pro-
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A number of Kiwanis club mém-

assistant probation officers, with
courts of the county, in an effort
aid first offenders, with the cou
of the county, in an effort to ald first

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offenders in over. thetr ta
from law ededioncae =

The effort, as participated tn by
the Macon club members, ig part of
& national project among Kiwanis
clubs “‘to strengthen, sense of respon-
sibility. on the part of law violators
&and‘to give them a contact eutside
of criminal associates.” . -

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rs volunteered yesterday to act as}

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Ag EO Sen eee

BURDEN, Arthur, black, electrocuted Ga. State Prison (Bibb) 2-24-1937.

"For the shotgun slaying of his sister-in-law here more than 2 years ago
Arthur Burden, young Macon Negro, paid with his life in the electric chair
at the state 2 obm yesterday morning. Witnesses reported the Negro showed
no emotion before the current shot through his body twice. At 10:15 a.m.
he was pronounced dead. Burden, convicted in Bibb Superior Court of the
murder of Elizabeth Henry, New York Negress, and 4 times sentenced to
death by Judge W. A. McClellan, went to his death after a sleepless night,
most of which was spent in prayer, friends reported. He gave prison offi-
cials no trouble and shortly after daybreak he ate a substantial break-
fast. Formsome time he had been conferring with the prison chaplain and
guards. Burden made no public statement as to his guilt or innocence, but
D. L. Churchwell, Macon attorney and welfare worker who led last minute
efforts to save the doomed man, told officials here that the Negro had
admitted he killed the woman,

"Burden walked to the death chair smiling and unaided. When the straps
had been adjusted and the hood had been placed over his head he uttered a
final prayer for those who aided him in a fruitless fight for clemency

and repetated over and over 'Into Thy hands, Oh God, I commend my spirit.'
Mr. Churchwell, J. R. Moseley, welfare worker, and several Bibb County
officers were in the prison at the time of the execution. Mr. Churchwell
pleaded with Burden to ‘come clean! just before the electrocution. Con-
tents of a conference with the prison chaplain were not divulged. To his
sister, Pauline Burden, the Negro gave his last 18 cknts, saying 'Make

the most of life that you can,.!

"The Henry woman was visiting with her sister, Burden's estranged wife, in
a house on Rock Street in South Macon at the time of the fatal shooting,
Burden crept to a window opening into the bedroom at about dawn one morn-=
ing in December, 1935, and fired at his wife, who was sleeping in the same
bed with the Henry woman and a third woman, The visiting Negress was
killed and the wife was injured. Two days later Burden was captured by
Deputy Sheriff Oscar Harris and admitted to the officer, they said, that
he had fired the shot. Later he denied the charge. Then followed the
long court battles, with Solicitor Charles H. Garrett presenting the
state's case resulting in conviction in the spring of 1936.. Subsequently
the case was appealed to the supreme court and Judge Mc Glellan's sentence
of death was confirmed. Still later Gov. Eugene Talmadge and his success-
or, E. D. Rivers, granted respites and interested parties sought to re-
veal new testimony that would throw light on the case. After each action
it was incumbent an Judge McClellan to resentence the defendant. The last
sentencing came after Judge McClellan had let the Negro live through
Christmas."

MACON TELEGRAPH, Macon, Ga., Feb. 25, 1937, page 7, column 1.