733 S.E.2d 304 | Ga. | 2012
A jury convicted Winston Clay Barrett of malice murder and related crimes and recommended a death sentence for the murder after finding beyond a reasonable doubt the following statutory aggravating circumstances: the murder was committed while Barrett was engaged in the commission of an aggravated battery, and the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and an aggravated battery to the victim before his death and manifested the defendant’s depravity of mind.
1. The evidence showed the following. At approximately 5:30 a.m. on August 4, 2002, two Towns County deputy sheriffs drove through
Jeanine Barrett testified that on August 4,2002, she and Barrett had been married for approximately one year and that she had met Youngblood only one time prior to the weekend that the shooting occurred. According to her testimony, the following events preceded Youngblood’s death. The previous day, she placed Barrett’s .357 revolver in a pocket of his reclining chair after finding it lying on a bed in their home. At approximately 9:00 p.m., she and her 13-year-old son were driving home when they saw Barrett and Youngblood together in Youngblood’s truck headed away from the Barretts’ residence. She stopped and briefly spoke to them. Youngblood was driving, and both he and Barrett appeared to be intoxicated. At approximately midnight, Ms. Barrett returned her son to his grandmother’s home in Gwinnett County where he lived, and when she returned home approximately four hours later, she found Barrett and Youngblood asleep in reclining chairs. She lay down on a bed in the same room, as the home consisted of only one large room and a bathroom.
At approximately 5:00 a.m., Ms. Barrett heard Barrett get up and stagger around the room until he found the bathroom, went in, and closed the door. Almost immediately, Youngblood awoke. Moaning and groaning, he stumbled around the room and then urinated on the television and floor. Ms. Barrett yelled at him that he was not in
Youngblood continued to stumble around the room, and Ms. Barrett “rant[ed] and rav[ed]” trying to get him to leave. She finally kicked the bathroom door to get her husband’s attention. Youngblood “balled up” his fist and said, “F— you, b — -,” but Ms. Barrett explained that he only clenched his fist and did not draw it back as if he intended to strike her, that he was not threatening to her, and that she did not feel threatened by him. In response, Barrett came out of the bathroom in a rage, grabbed Youngblood, and pushed him toward the door, cursing and demanding that he leave. Youngblood repeatedly said, “No, Clay,” and stopped himself in the doorway. The more he resisted, the angrier Barrett became, and Ms. Barrett told both of them to leave.
Then Youngblood sat down on the corner of the bed, lowered his head, and shook it, saying, “Oh, Clay, I didn’t know.” Barrett pulled him off the bed and started hitting him. Youngblood did not resist or fight back, and Barrett “just started throwing him around like a rag doll.” Barrett threw Youngblood out the door, and Ms. Barrett heard a lot of “oh’s” and “banging around” in the gravel drive outside. Barrett threw Youngblood back inside the residence and onto the floor, hitting him repeatedly with his fists and his nine-millimeter pistol. Both Youngblood and Ms. Barrett begged Barrett to stop, but Barrett pulled Youngblood up and threw him out the door and then back into the residence again, still beating him and slamming his head on the floor, on the table, and under the television. Then Barrett jumped on top of Youngblood and sat on his stomach, straddling him. When Ms. Barrett saw that Youngblood’s head looked like it was “split from one side to the other in a couple of places” and that he was bleeding from his head, his mouth, and his nose, she begged Barrett to “stop it” and to “let him go” before he killed Youngblood, whom she described as helpless and “out of it.” Instead, Barrett remained on top of Youngblood, looked at his wife, and then “reared back with his hand way up,” “jabbed it down in [Youngblood’s] eye,” and “ramm[ed] his finger like he was trying to ram his hand through [Youngblood’s] eye socket.” When she saw “blood squirt[ ] up yea high,” Ms. Barrett went to get help, as the Barretts had no telephone. As she was driving her
Barrett, who also testified at trial, described the events preceding Youngblood’s death as follows. Youngblood came to his home in the late afternoon of August 3, 2002, “agitated” and “angry” as the result of a recent altercation involving his girlfriend and his cousin. Barrett refused Youngblood’s request to borrow a gun in order “to go shoot these people.” The two men went target shooting with Barrett’s nine-millimeter pistol instead. Later, they met Ms. Barrett on the road as she was coming home and they were leaving to buy some beer at a convenience store, which they consumed en route to a bar in Helen, where they each consumed more alcohol. They returned to the Barretts’ home at approximately midnight and fell asleep in reclining chairs. Sometime later, Barrett woke up when he thought he heard a gunshot. Youngblood was in the middle of the room with Barrett’s nine-millimeter pistol in his hand, and the door to the home was open. Barrett told Youngblood to give him the gun and to go back to sleep.
Barrett awoke and went to the bathroom at approximately 5:00 a.m. When he heard Youngblood and his wife arguing, he came out of the bathroom and tried to calm down an “agitated” Youngblood by telling him: “It’s okay. Don’t worry about it. Just go on home.” When Youngblood would not leave, Barrett asked Ms. Barrett to “go call the police,” but Youngblood blocked the doorway and refused to let Ms. Barrett out. Barrett and Youngblood began shoving each other, the shoves turned into blows, and a fistfight erupted. Barrett claimed that Youngblood was attempting to strike him with a ceramic wind chime when he kicked it out of Youngblood’s hand, retrieved it, and hit Youngblood over the head with it. He also claimed that Youngblood threatened to kill him and was attempting to pick up Barrett’s loaded .357 revolver, which he alleged was lying on the floor, when he struck Youngblood once “[n]ot real hard” on the side of the head with the nine-millimeter pistol. During the melee, Ms. Barrett managed to get out the door, and when Barrett heard an automobile crank up, he assumed that she was going to a pay phone to call the police.
Once Barrett “finally got [Youngblood] out of the house to stay,” he went inside and sat in his chair, where he watched Youngblood through the open doorway as he sat on the porch facing Barrett. After “a little lull,” Barrett said, “Stumpy, go get in your truck and leave,... or I’ll have to shoot you.” It appeared to Barrett that Youngblood was dragging a rock with his left foot, and Barrett unholstered the .357 revolver and came “pretty fast” at Youngblood, kicking him in the
Although Barrett testified that he fired only one shot, two neighbors testified to being awakened by one gunshot, followed by someone saying, “Oh,” which was quickly followed by another gunshot. A third neighbor testified that he was awakened by what he thought was a gunshot between 5:00 and 5:30 a.m.; that he moved to his porch and heard voices, “one loud and agitated and one very soft”; that the loud, agitated voice said, “Get in the f-.....truck or I will kill you”; and that there was “a slight, slight pause” followed by “another shot, which [he] identified positively as a shot.” The State presented evidence that a projectile that was fired from Barrett’s .357 revolver entered through the open exterior door of the Barretts’ home from outside the residence and came to rest in the wall behind the door.
According to the medical examiner, in addition to the gunshot wound that caused his death, Youngblood sustained over 40 injuries, including those that were consistent with his being struck on the head with a pistol multiple times, with his right eye being forcefully jabbed with a finger or fist while his head was on the ground, with his being grabbed under both armpits, with his back being scraped on a gravel drive, with his being kicked or stomped in the abdomen with a significant amount of force, and with his being kicked or stomped on the leg. Additionally, Youngblood had numerous contusions and abrasions above his navel and on his chest, abdomen, elbows, arms, wrists, legs, and feet. Several witnesses who saw Barrett immediately after the incident testified that they noticed either no or insignificant injuries to him.
The evidence also showed that there was a significant amount of blood inside and outside the residence, including on the carpet, door casings, wall, television, exterior door, and porch. Blood spatter evidence inside the home and at the rear of Youngblood’s truck indicated that repeated blows capable of causing medium velocity spatter occurred in both places. DNAfrom blood recovered from both pistols matched Youngblood’s DNA. The evidence also showed that
The jury was authorized to disbelieve Barrett’s testimony and credit the testimony of the State’s witnesses.
2. The trial court charged the jury regarding self-defense, justification, accident, voluntary manslaughter, and defense of habitation under OCGA § 16-3-23 (l).
relieve [d] a criminal defendant from the requirements of preserving errors in the charge imposed in civil cases, . . . “this d[id] not relieve him from the necessity of requesting instructions, or making timely objection in the trial court on the failure to give instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.”
(Citation omitted.) Johnson v. State, 253 Ga. 37, 38 (315 SE2d 871) (1984). As defense of habitation under OCGA § 16-3-23 (2) was not Barrett’s sole defense, the omission of the unrequested charge was not clearly harmful as a matter of law. See James v. State, 275 Ga. 387, 389 (6) (565 SE2d 802) (2002). Accordingly, the trial court did not err in denying Barrett relief on this claim.
3. Barrett claims that, in denying the motion for new trial, the trial court erred by not finding that his trial counsel failed to provide effective assistance of counsel in several respects. In order to prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel rendered deficient performance and that the deficient performance prejudiced his defense. See Smith u. Francis, 253
(a) Barrett’s Trial Counsel. Approximately one month after Barrett’s arrest, the trial court appointed local attorney Fletcher Griffin to represent him. After the State filed notice of its intent to seek the death penalty, the trial court appointed Michael Mears of the Multi-County Public Defender’s Office to act as lead counsel and directed that Griffin serve as co-counsel. Griffin was allowed to withdraw due to a conflict of interest, and William Oliver was appointed to replace him. Mears served as Barrett’s lead counsel for approximately one year. At a hearing in December of 2003, Barrett requested that he be allowed to serve as co-counsel for his defense, stating to the trial court that he “considered] [him]self one of the best jailhouse lawyers” in the county and that he and his trial counsel had an “issue with strategy.” The trial court denied Barrett’s request. See Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (1988) (holding that a defendant does not have the right to act as co-counsel). When, with the aid of family and friends, Barrett retained Lee Parks to represent him, the trial court permitted Mears and Oliver to withdraw from Barrett’s case and eventually appointed Parks’s law partner, Greg Valpey, to assist Parks.
(b) Investigation and Presentation at Trial. After Parks entered Barrett’s case in February of 2004, Mears provided him with his file and the information that he had obtained through his investigation, which Mears and his defense team reviewed “very extensively” with Parks. Parks testified that he saw everything in Mears’s file and that he reviewed the discovery provided by the State. Barrett’s trial was scheduled to begin in July of 2004. However, after Parks and Valpey conducted voir dire and approximately one-third of the otherwise qualified jurors were excused due to prejudice, bias, or fixed opinions as a result of their knowledge of the case or the parties, the trial court granted defense counsel’s motion for a change of venue and accepted their proposal that the case be transferred to Hall County for purposes of venue.
Trial counsel’s defense strategy was to show that Barrett and Youngblood were “lifelong” friends who spent the evening of August 3, 2002, drinking beer together after Youngblood came to Barrett’s home “agitated,” “angry,” and already injured as a result of having engaged in an earlier altercation, that Youngblood had a propensity for violence when he became intoxicated, and that Youngblood was the aggressor on the morning of the shooting. When the report of the Georgia Bureau of Investigation (GBI) Crime Lab indicated that the results of Youngblood’s blood test for alcohol might not be reliable, defense counsel agreed to enter into a stipulation with the State at trial that Youngblood’s blood alcohol level was 0.242 grams per 100 milliliters and that a blood alcohol level of 0.08 grams per 100 milliliters constitutes a presumption that a person is under the influence of alcohol to the extent that it would be less safe to drive.
The defense presented two witnesses to testify regarding the victim’s prior violent acts. Youngblood’s ex-wife testified that she had a cast on her left arm and was driving with an intoxicated Youngblood and her two young children in the car when Youngblood forced her to pull over by grabbing her right arm, “put his fist through the windshield,” yanked the keys from the ignition, and grabbed her arm, twisted it behind the seat, and threatened to break it. His former roommate testified that an intoxicated Youngblood struck her without warning, causing her to “hit the wall” and “f[a]ll over on the couch”; that he “jumped over [her] shoulders,” “pinned [her] down,” “beat [her] up,” “[tjried to rip [her] teeth out,” and “beat [her] until he passed out nearly from exhaustion”; and that she suffered a concussion and other injuries requiring medical treatment. Both witnesses testified that they were familiar with Youngblood’s reputation in the community and that he had a reputation for violence, and his former roommate also opined that alcohol consumption was “the main trigger” for Youngblood’s violence. The State introduced certified copies of accusations charging Youngblood with two counts of battery arising out of these incidents and his guilty pleas to these charges.
Based on testimony elicited by his cross-examination of the State’s witnesses, Parks attacked the investigation of the case during closing argument by contending that law enforcement failed to promptly secure and adequately process the crime scene, to canvas the neighborhood, and to make an audio recording of their interviews with Ms. Barrett and Barrett. Parks also attacked the reliability of Ms. Barrett’s and the medical examiner’s testimony, which is more
At the sentencing phase, the State presented as evidence in aggravation the testimony of six witnesses, including Barrett’s sister and brother-in-law. Their testimony showed the following: Barrett was present at a fight in the early 1980s and, when an individual intervened, Barrett pointed a pistol at him and said, “Let them fight”; Ms. Barrett took out a warrant for Barrett’s arrest in May of 2002 after Barrett knocked her to the ground and kicked her, but she later signed “a letter” that Barrett helped her write denying that he hurt her and stating that she did not wish to prosecute; while incarcerated awaiting trial, Barrett and a fellow inmate carried out Barrett’s idea to burn a hole in the inmate’s cell window to receive cigarettes, and Barrett also sought to have someone smuggle in “hacksaw blades”; a Hall County deputy overheard Barrett say that the deputies “wouldn’t have any trouble out of him unless he was found guilty”; and Barrett made what family members perceived to be a serious threat to kill his sister because he was angry about the possible distribution of certain items in his mother’s estate.
On cross-examination of these witnesses, trial counsel elicited the following testimony: the individual at the fight also pulled a gun on Barrett, Barrett was not involved in the fight, and the police, who were called to the fight, looked for but never found a gun in Barrett’s possession; the “letter” that Ms. Barrett referred to was actually her sworn affidavit that had been prepared by an attorney, and the grand jury had returned a no bill for the charge arising out of the incident; the inmate agreed to testify against Barrett as part of a plea agreement involving not one but two criminal cases against him, he never saw anything pushed through the hole in his window from the outside, his contraband lighter was used in creating the hole, and he had convictions for possession of methamphetamine with the intent to distribute and for criminal interference with government property;
Trial counsel presented the testimony of two mitigation witnesses. Davis Sutton testified that he first became acquainted with Barrett when he watched Barrett play high school basketball, that they became close friends when Sutton returned from his military service in Vietnam, and that Barrett was “one of the few people” that recognized him for his service. Sutton also testified that he “stayed drunk, on drugs, or both” for 15 years after his return and that, after repeatedly going through a drug treatment program, he had stayed “clean and sober” for 12 years. He mentioned that Barrett had attended college, and he testified that “[Barrett] was and is my friend,” explaining that Barrett helped him through his addiction by giving him money, food, and a place to stay and that after he “went straight” he had remained friends with Barrett, who considered Sutton his role model. Sutton also testified that he had earned a degree in social work that he utilized to counsel on a volunteer basis at the local mental health facility; that he, Barrett, and Youngbood, who was his cousin, had all been friends; and that he had counseled Youngblood as a friend. Sutton described how, upon his arrival at Barrett’s home on the morning of the shooting, he saw an “extremely distraught” and tearful Barrett put a .357 revolver to his head and cock it, how he was convinced that Barrett intended to pull the trigger, and how he persuaded Barrett that was not the answer. Sutton concluded by describing Barrett as a good listener and an “openhearted, benevolent, intelligent, helpful kind of person” who “would make an excellent counselor,” and he stated that “there is much more good in Clay Barrett than there is evil.” He told the jury:
[Barrett] has a lot to offer.... [T]he potential is there and if he chooses to use it, he could still be very beneficial to a lot of people, possibly even to the point of.. . let[ting] someone else make the choice not to make the same mistakes he has made in his life.
Fortenberry testified that she had known both Barrett and Youngblood for over 20 years, that she had a good relationship with both of them, and that Barrett and Youngblood had a “[v]ery good” relationship with each other based on an “unconditional” love that caused them to put each other before themselves. As she explained, ‘You couldn’t like one without liking the other,” because “[t]hey just wouldn’t have it.” She also testified that both men were “polite” and “protective” of those who could not protect themselves. She cited as an example the fact that Barrett and Youngblood were her only friends that tried to protect her from an abusive spouse. She described Barrett as “helpful” and “never rude,” and she testified that he was worth saving, as he was “extremely good people.” She indicated that, if Youngblood had been the defendant and Barrett the victim, she wouldbe testifying “[t]he same way.” Fortenberry’s testimony affirmed trial counsel’s guilt/innocence phase defense that Barrett and Young-blood were good friends and that Barrett would not have shot his friend except in a case of accident or justification. Thus, it supported trial counsel’s residual doubt theory as to how the shooting occurred. Her testimony also supported trial counsel’s mitigation theory of showing Barrett’s good character.
At closing, Valpey argued residual doubt, contended that Barrett did not present concerns that he would murder again as he was so remorseful over having shot his friend that he wanted to end his own life, and maintained that Barrett was capable of “aton[ing] and mak[ing] amends” if presented with an opportunity for redemption. Valpey explained that the defense was not offering an explanation such as “a troubled childhood” for Youngblood’s killing, because Barrett was “a 49-year-old man”; instead, he reminded the jury that Barrett had been a high school athlete, that he had a child,
(c) Ineffective Assistance of Counsel at the Guilt/innocence Phase. Barrett alleges that trial counsel rendered ineffective assistance at the guilt/innocence phase in various ways.
(1) Failure to develop and present evidence of the victim’s methamphetamine use. Barrett alleges that trial counsel were ineffective by failing to develop and present evidence of Youngblood’s methamphetamine use at the time of the crimes to explain his irrational and volatile behavior. “Evidence of drug use is inadmissible when it is intended only to impugn a victim’s character and has no relevance to any disputed issues in the case.” Crowe v. State, 277 Ga. 513, 514 (591 SE2d 829) (2004). See OCGA § 24-2-2. In order for evidence of Young-blood’s methamphetamine use to have been admissible at trial, Barrett was required to show how the use of the drug contributed to Youngblood’s behavior so as to make it relevant to his justification defense. See James v. State, 270 Ga. 675, 676 (2) (513 SE2d 207) (1999).
At the hearing on the motion for new trial, Barrett introduced testimony that Youngblood had used the drug on several occasions, the occasion nearest in time to the incident being two to three days before the date of the crimes. However, “[he] was unable to show in his [hearing on the motion for new trial] that [Youngblood] had been using [methamphetamine] at a time close enough to the shooting to have had an influence on him at the time of the shooting.” James, 270 Ga. at 676 (2). Accordingly, evidence of methamphetamine use was not relevant and thus would have been inadmissible at Barrett’s trial. See id. (finding that evidence that the victim was “a regular [marijuana] user” was irrelevant to the defendant’s justification defense and properly excluded, where the defense could not demonstrate that the victim smoked marijuana on the day of his death). Because the testimony Barrett contends should have been presented about Young-blood’s alleged methamphetamine use was irrelevant and inadmissible, trial counsel did not act deficiently by failing to locate and produce witnesses to present that testimony at trial. See Smart v. State, 277 Ga. 11, 113 (5) (587 SE2d 6) (2003) (finding that trial counsel was not deficient for failing to discover and produce irrelevant and inadmissible evidence). Barrett’s related argument that trial counsel were deficient in failing to introduce expert testimony connecting Barrett’s alleged methamphetamine use to his behavior also fails in the absence of any evidence that Youngblood was actually under the influence of methamphetamine at the time that Barrett shot him. See James, 270 Ga. at 676 (2); Carter v. State, 303 Ga. App. 142, 148 (3) (692 SE2d 753) (2010).
(2) Conflict of interest claim. In a related claim, Barrett contends that, in denying his motion for new trial, the trial court erred by finding that his trial counsel were not ineffective based on a conflict of interest on the part of trial counsel. To establish ineffective assistance of counsel due to a conflict of interest, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” (Footnote omitted.) Cuyler v. Sullivan, 446 U. S. 335, 348 (100 SC 1708, 64 LE2d 333) (1980). Accord State v. Mamedov, 288 Ga. 858, 860 (708 SE2d 279) (2011). Whether a conflict of interest denied a defendant his right to effective counsel “is a mixed question of law and fact, and we review the questions of law involved de novo.” (Citations omitted.) Davis v. Turpin, 273 Ga. 244, 246 (3) (a) (539 SE2d 129) (2000).
The most that Nations’s testimony showed was that Youngblood purchased and used methamphetamine two to three days before his death. As discussed in subdivision (1) above, this evidence does not show that Youngblood was actually under the influence of methamphetamine at the time of his death. Therefore, even if Parks had called Nations as a witness, her testimony would have been irrelevant and, thus, inadmissible. See James, 270 Ga. at 676 (2). Accordingly, Barrett has failed to establish that Parks’s decision not to call Nations to testify was anything but a reasonable strategic decision or that Parks would have acted differently absent the alleged conflict of interest. See Reid v. State, 286 Ga. 484, 486 (3) (a) (690 SE2d 177) (2010) (stating that the determination of which witnesses to call is a strategic decision). The trial court did not err in concluding that Barrett was not entitled to a new trial based on trial counsel’s conflict of interest.
(3) Failure to present the testimony of Youngblood’s girlfriend. Barrett contends that trial counsel were ineffective in failing to interview and present the testimony of Linda Janet Bettis Maney, Youngblood’s girlfriend who was present at Youngblood’s altercation with his cousin. Barrett claims that Maney could have corroborated his testimony that Youngblood told him that he had recently been in
(4) Failure to obtain and develop impeachment evidence. Ms. Barrett’s trial testimony included several details inculpating Barrett that were not contained in the statement that she made to law enforcement officers on the morning of the incident. At the hearing on the motion for new trial, Barrett presented the deposition testimony of Sutton, who testified that Ms. Barrett told him that the district attorney threatened her with prosecution if she did not testify concerning “things outside of what she knew.” Although trial counsel interviewed Sutton prior to trial, they did not elicit this information from him. Barrett contends that trial counsel were ineffective for failing to do so, as it could have been used to impeach Ms. Barrett. The trial court denied this claim, finding that “the failure of trial counsel to investigate Sutton’s knowledge of impeaching facts is only apparent in hindsight.” We agree. See Davis v. State, 290 Ga. 584, 587 (2) (b) (723 SE2d 431) (2012) (“[Effectiveness is not judged by hindsight. . . .” (Citation omitted.)).
Barrett contends that trial counsel were ineffective for not anticipating that Ms. Barrett’s trial testimony, unlike her statement, would inculpate Barrett, because they were aware that Ms. Barrett had made threats to Barrett’s first lawyer, Fletcher Griffin, that, if Barrett did not sign over an insurance check to her, she would be an “unfriendly” witness at trial. However, this claim is not supported by the evidence. At the hearing on the motion for new trial, Griffin
Nor has Barrett shown that he was prejudiced. During her testimony, the jury heard that Ms. Barrett had filed for a divorce from Barrett, that the divorce would become final in two weeks, and that the marriage had been tumultuous and had lasted only a year. Trial counsel questioned Ms. Barrett on cross-examination regarding the significant portions of her testimony that she had omitted in her statement to police and at closing reminded the jury of the alleged inconsistencies and argued that her testimony was unreliable. Accordingly, Barrett failed to show that had counsel additionally impeached Ms. Barrett with Sutton’s deposition testimony, there is a reasonable
(5) Failure to request that the jury be instructed pursuant to OCGA § 16-3-23 (2). As discussed in Division 2 above, trial counsel requested and were granted a jury instruction on defense of habitation under OCGA § 16-3-23 (1); however, no jury instruction on defense of habitation under OCGA § 16-3-23 (2) was requested, and none was given. Subsection (1) authorizes the use of deadly force to prevent or terminate an unlawful entry into or an attack upon a habitation if the “entry is made or attempted in a violent and tumultuous manner” and the defendant has a reasonable belief that the entry is made “for the purpose of assaulting or offering personal violence to any person” therein. Approximately four years before Barrett’s trial, the General Assembly amended OCGA § 16-3-23 by inserting a new subsection (2) and re-labeling the previous subsection (2) as subsection (3). See Ga. L. 2001, p. 1247, § 2. The current subsection (2) authorizes the use of deadly force against a person who is a nonmember of the family or household if that person “unlawfully and forcibly enters ... the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred.” Barrett contends that he testified at trial that, at the time of the shooting, he was standing over Youngblood in an attempt to block his re-entry into Barrett’s residence when Youngblood lunged at him. Thus, he claims that, if the jurors had received a defense of habitation charge under subsection (2), there is a reasonable probability that they would have determined that he was entitled to use deadly force to defend against “an unlawful and forcible entry” even without finding that he was in reasonable fear of his life.
Parks testified at the hearing on the motion for new trial that he “was sure that he was vaguely aware” at the time of Barrett’s trial that the defense of habitation statute had been amended in 2001 to add subsection (2), but he stated that he relied on the pattern charge book to obtain the language for his requests to charge and did not further research the defense of habitation defense.
While Barrett argues that his case is analogous to that of Benham v. State, 277 Ga. 516 (591 SE2d 824) (2004), in which this Court found trial counsel ineffective for failing to request a defense of habitation charge, Benham is distinguishable on its facts. In that case, it was undisputed that the victim struck the first blow by attacking the defendant through the window while she sat inside her automobile, see OCGA § 16-3-24.1 (providing that a motor vehicle is a habitation under OCGA § 16-3-23), and that someone tried to pull the victim away from the automobile at least twice but the victim resisted. See id. at 517. Here, however, it was undisputed at trial that Barrett and Youngblood were several feet outside the residence at the time of the shooting, and, contrary to Barrett’s contention, Barrett did not testify that Youngblood was attempting to re-enter or attack the residence when the shooting occurred. See Coleman v. State, 286 Ga. 291, 298 (6) (687 SE2d 427) (2009) (“Critical to the application of the defense of habitation is the moment in time at which the defendant resorts to deadly force and the act being performed by the victim at that moment.”). Instead, according to Barrett’s own testimony, the shooting occurred in the following manner. Barrett had Youngblood out of the house “to stay” when he went back inside the residence and sat down, but, after seeing Youngblood drag what he perceived to be a rock with his foot, he came out of the house and kicked Youngblood from one side of the porch to the other. As a result, Youngblood was lying on the ground several feet outside the residence, and Barrett testified that “[he] would have went in the apartment and locked the door . . . had [he] not sent [Ms. Barrett] to go call [the police].’’ He explained that he could not leave Youngblood “out there,” because he
By rejecting Barrett’s argument that he shot Youngblood in self-defense, the jury necessarily found that Barrett was not justified in using deadly force, because he could not have reasonably believed that such force was necessary to prevent death or great bodily injury to himself or a third person. By the time of the shooting, Youngblood had suffered over 40 injuries, including multiple severe lacerations to his head, a severe gouging to his éye, and a kick forceful enough to move him from one side of the porch to the other, and Barrett acknowledged that he knew that Youngblood was not armed. Given these facts, Barrett’s own testimony, and the jury’s rejection of Barrett’s self-defense defense, there is no reasonable probability that the jurors would have considered Youngblood to be sufficiently threatening that, at the time of the shooting, Barrett could have reasonably believed that deadly force was necessary to prevent Youngblood from unlawfully and forcibly entering Barrett’s residence. See Fair v. State, 288 Ga. 244, 257 (2) (A) (3) (702 SE2d 420) (2010) (“The statute’s introductory clause defines when an actor is justified in the use of any force or threats of force in the defense of habitation, namely, ‘to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation.’ ”). Accordingly, even assuming that a defense of habitation charge under subsection (2) had been requested, authorized, and given, there is no reasonable probability that the jury would have determined that Barrett was entitled to and did use deadly force against Youngblood because he was defending against Youngblood’s unlawful and forcible entry of his habitation. See Springs v. Seese, 274 Ga. 659, 661 (3) (558 SE2d 710) (2002).
(6) Failure to interview the medical examiner. Barrett contends that trial counsel were ineffective with regard to the State’s expert witness, Dr. Lora Darrisaw, the medical examiner who performed the autopsy on the victim. While Dr. Darrisaw conducted Youngblood’s autopsy, the deputy chief medical examiner, Dr. Mark Koponen, supervised her and signed the autopsy report because her Georgia license was pending at the time.
At the hearing on the motion for new trial, Barrett presented the testimony of Dr. Darrisaw, as well as his own medical expert, Dr. Kris Sperry. Both experts testified that it was possible that the muzzle of Barrett’s .357 revolver contacted Youngblood’s head behind his right ear when, as Barrett testified, he fired the gun as Youngblood lunged at him. Barrett now contends that trial counsel were ineffective in failing to interview Dr. Darrisaw and learn pre-trial that her opinion was not inconsistent with Barrett’s account of the incident so that they could elicit this testimony at trial. The trial court found that trial counsel conducted a thorough investigation and that their actions were the result “of a strategic decision.” While the court provided no analysis to show how it reached its conclusion, after an independent review of the record we agree that trial counsel thoroughly investigated the autopsy report and the victim’s injuries, and we conclude that the approach that trial counsel took at trial with regard to Dr. Darrisaw was the result of a reasonable strategic decision. See Martin v. Barrett, 279 Ga. 593, 593 (619 SE2d 656) (2005) (“ ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable [.]’ ” (Citation omitted.)).
A review of the record shows that Mears was representing Barrett at the time that the autopsy report was turned over to the defense and that, at least initially, Mears was highly critical of Dr. Darrisaw’s report. At a motions hearing in August of 2003, he expressed to the trial court his disagreement with Dr. Darrisaw’s conclusions regarding the wounds to the back of Youngblood’s head and right eye. Mears showed the trial court an autopsy photograph of Youngblood, pointing out to the court that “there [ wa]s a hole in the man’s head between his eyeball and his nose.” He stated repeatedly
Although Parks testified that he did not recall interviewing Dr. Darrisaw prior to trial and that he himself did not consult any experts, he also testified that he reviewed everything in Mears’s file and that he researched the issues surrounding the autopsy by reading relevant books and papers. He also testified that he questioned some of the conclusions in Dr. Darrisaw’s report but that the defense team was unable to locate an expert that could provide any contrary testimony. Moreover, Parks stated that he found nothing in what he read or what Mears and his staff related to him that supported Barrett’s contention that he shot the victim in the face, and Dr. Sperry, Barrett’s own expert, testified at the hearing on the motion for new trial that, without question, the injury behind Youngblood’s right ear was a contact entrance gunshot wound, that there was no exit gunshot wound, and that the wound to the eye was not an entrance gunshot wound. However, it is also evident from the record that Barrett has consistently and adamantly maintained that he shot Youngblood in the right eye.
At trial, Parks elicited testimony from Dr. Darrisaw that her Georgia license was still pending at the time of conducting Young-blood’s autopsy and that his autopsy was among the first that she conducted after having completed a one-year fellowship in forensic pathology only five days earlier. Parks also elicited testimony from the GBI agent who analyzed the crime scene that it had been his opinion upon viewing Youngblood’s body at the scene that the right eye injury was an entrance gunshot wound and that the bullet had exited the back of his head. When Barrett took the stand, he testified repeatedly that Youngblood was facing him when he fired the gun. He also vehemently denied jamming his finger or his hand into Young-blood’s eye as Ms. Barrett had testified or that anything could have been responsible for the eye injury other than that it was an entrance gunshot wound.
The testimony that Parks elicited from Dr. Darrisaw enabled him to argue in closing that, when she “did this autopsy of Stumpy’s body, she had been an assistant medical examiner for five days,” that she “hadn’t even been issued her license to practice in Georgia and had to be supervised,” that “Stumpy’s autopsy was one of the first autopsies she performed,” and that the jurors “must consider her level of inexperience when considering what weight to give to her opinions.” Then trial counsel argued that Barrett was facing Young-blood when he shot him, as Barrett had testified, and he discounted every basis that Dr. Darrisaw had provided for her opinion that the wound behind Youngblood’s right ear was a contact entrance gunshot wound and that the wound to the right eye could not be an entrance gunshot wound. In sum, based on Barrett’s testimony in which he adamantly insisted that he shot Youngblood in the face and that the severe injury to Youngblood’s right eye was caused by the bullet’s entry and not by the ramming of his fingers or his fist into the eye, trial counsel argued that the wound to the back of Youngblood’s head was nota contact entrance gunshot wound but an exit wound, that the eye injury was an entrance gunshot wound, and that Dr. Darrisaw was mistaken in her opinions. Therefore, it would have been not only
Moreover, neither the State nor the defense asked Dr. Darrisaw whether the fact that the wound to the back of Youngblood’s head was a contact entrance gunshot wound would tell her anything about the positions of the participants other than that the muzzle of the gun was in contact with the skin when the shot was fired. Nevertheless, she implied that she had no opinion as to the participants’ positions at the time of the shooting, as she testified that the pathway of the bullet “did not tell her anything” about the participants’ positions and that “[she] would have to know that.” Further, in closing, the prosecutor argued:
[B]ut still could it have been self-defense, even though the shot is to the back of the head? The defense really didn’t argue this. Mr. Barrett didn’t claim it. But could it be possible [Youngblood] was coming at Mr. Barrett and at the last minute turned his head? Well, anything is possible.
Thus, even assuming that trial counsel were deficient in failing to elicit testimony from Dr. Darrisaw that the head wound could have occurred as Youngblood lunged at Barrett, given her implication that she could not opine on the participants’ positions at the time of the shooting and the State’s concession that such a scenario was possible, Barrett cannot establish prejudice.
(d) Ineffective assistance at the sentencing phase. Barrett contends that trial counsel were also ineffective at the sentencing phase,
Barrett maintains that, while the trial court correctly recognized that his case is governed by this Court’s decision in Perkins v. Hall, 288 Ga. 810 (708 SE2d 335) (2011), it erred in its application of that decision in concluding that trial counsel were not constitutionally deficient in their investigation and presentation of mitigation evidence. In Perkins, this Court noted that the ABA Guidelines in effect at the time of Perkins’s trial “indicate [d] that trial counsel should conduct an investigation seeking possible evidence for the sentencing phase ‘regardless of any initial assertion by the client that mitigation is not to be offered.’ ” See id. at 814 (II) (A) (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), 10.4.1 (C)). This Court then recognized that the guidelines in effect at the time of Perkins’s trial “at first blush, might appear to be in tension with this Court’s previous decisions indicating that the client is ultimately the master of his own defense, including whether or not to present any mitigating evidence.” (Citations omitted; emphasis in original.) Id. This Court explained, however, that “reasonable attorney performance includes investigating mitigating evidence to the extent feasible given the defendant’s willingness to cooperate and then, if the defendant insists, following his instructions regarding the ultimate defense to pursue.” Id. at 815 (II) (A). The ABA Guidelines changed in 2003, however, and the relevant guideline in effect at the time of Barrett’s trial stated that the sentencing phase investigation “should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented.” (Emphasis supplied.) ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003), 10.7 (A) (2), reprinted in 31 HofstraL. Rev. 913, 1015 (2003). Despite this change in the guidelines, we agree with Barrett that the holding enunciated in Perkins is applicable in determining whether trial counsel’s investigation was deficient. See Strickland, 466 U. S. at 688, 691 (stating that the ABA Standards are “only guides,” that the reasonableness of counsel’s actions should be
Barrett maintains that, had trial counsel conducted a reasonable investigation and had other mitigation evidence prepared, perhaps they could have persuaded him to allow trial counsel to present it
In addressing the first group of new witnesses, Barrett’s family members, this Court notes the following relevant testimony. At the hearing on the motion for new trial, Parks testified that, upon entering the case, he discussed with Barrett “the process” of presenting mitigation evidence and what evidence the defense could put forth; however, Barrett told him that he was not going to cooperate with any efforts to investigate mitigation, because he would “just as soon have the death penalty as a life sentence” if he were convicted.
Barrett presented no evidence contradicting trial counsel’s testimony. Thus, it is undisputed that trial counsel specifically and repeatedly advised Barrett about allowing the introduction of mitigating evidence from his family members. Furthermore, trial counsel’s clear, unambiguous, and unrefuted testimony that Barrett consistently maintained that he would not permit testimony from family members to be presented at trial is supported by Barrett’s ex-wife’s testimony. Therefore, Barrett cannot show that he was prejudiced by any alleged deficiency in trial counsel’s failure to investigate and present this evidence. See Schriro v. Landrigan, 550 U. S. 465, 478 (127 SC 1933, 167 LE2d 836) (2007) (stating that “a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel’s failure to investigate further possible mitigating evidence”); Reed v. Secretary, Fla. Dept. of Corrections, 593 F3d 1217, 1246, n. 19 (11th Cir. 2010); Cummings v. Secretary, Dept. of Corrections, 588 F3d 1331, 1359-1360 (11th Cir. 2009). Accordingly, we do not consider this particular mitigation evidence in our prejudice inquiry. See Gilreath v. Head, 234 F3d 547, 550, n. 10 (11th Cir. 2000) (assuming trial counsel were deficient in failing to present certain types of mitigating evidence but refusing to consider mental health and alcohol abuse mitigation evidence in the prejudice inquiry, where counsel discussed
As to the second group of new witnesses, persons who knew Barrett from high school, most of these witnesses had had little or no contact with Barrett in approximately three decades, and at least two of these witnesses had never even had a personal relationship with him. The jury would not likely have found the testimony of these witnesses to be very relevant or reliable. Nor would the jury likely have found the testimony of several of these witnesses that Barrett was not violent to be particularly convincing in light of the family members’ testimony that he had threatened to kill his sister and in light of the State’s similar transaction evidence, which the jury was instructed that it could consider at the sentencing phase and which showed that, within approximately a year of shooting Youngblood, Barrett had assaulted a friend by striking him in the head with a gun and had pointed a gun about an inch from a friend’s face and asked her if she were ready to die. The new mitigation evidence also would have risked the State’s presenting as damaging rebuttal evidence at least some of the prior bad act evidence that, as discussed above, the State did not introduce at trial after trial counsel filed a pre-trial motion to prevent its admission. See Johnson v. Upton, 615 F3d 1318, 1338, n. 18 (11th Cir. 2010) (noting that, had counsel “called a lot more witnesses as to Johnson’s good character as an adult, the State would have done more on this score too”); McMichen v. State, 265 Ga. 598, 607 (12) (458 SE2d 833) (1995) (holding that evidence of a defendant’s specific bad acts is admissible at the sentencing phase to show his character).
As to the third group of new witnesses, individuals that knew Barrett at the time of the incident, some of these witnesses did testify about Barrett’s generosity, willingness to help those in need, like-ableness, reliability, kindnesses to women, and sports skills. However, much of the testimony is cumulative of that presented through the trial witnesses, including one whose testimony was more compelling than Barrett’s new witnesses because he was the victim’s own cousin. Much of the new testimony also contains the information that Barrett was heavily involved in partying that revolved around alcohol and drug use, evidence that the jury likely would not have found to be particularly mitigating. This Court has especially noted the testimony of one witness that Barrett “saved [her] life” when a friend pulled a knife on her and Barrett took the knife away before anyone could get hurt. However, the fact that this incident occurred over 20 years before Youngblood’s shooting and that all the parties involved were using drugs and/or alcohol at the time it occurred would likely have undermined both the reliability and the mitigating effect of the
(e) Combined effect of alleged errors. Barrett asserts that the trial court erred in failing to consider the combined prejudicial effect of trial counsel’s deficiencies. See Schofield v. Holsey, 281 Ga. 809, 811-812, n. 1 (642 SE2d 56) (2007). However, considering the combined effect of the deficiencies we have assumed in the discussion above, we conclude that those deficiencies would not in reasonable probability have changed the outcome of either phase of Barrett’s trial. See id. Therefore, Barrett’s claim can provide him no relief.
4. Relying on 17 cases that he claims are similar to his own in which the defendant did not receive a death sentence, Barrett alleges that his death sentence is disproportionate to sentences imposed in similar cases. However, “[t]his Court views a particular crime against the backdrop of all similar cases in Georgia in determining if a given sentence is excessive per se or substantially out of line.” (Emphasis supplied.) Gissendaner v. State, 272 Ga. 704, 717 (19) (a) (532 SE2d 677) (2000). See Terrell v. State, 276 Ga. 34, 46 (572 SE2d 595) (2002) (Fletcher, C. J., concurring) (stating that this Court “does not determine whether the death sentence under review represents a large or small percentage of sentences in factually comparable cases” but, instead, examines the sentence “to ensure that it is not an anomaly or aberration”). The evidence construed to support the verdicts showed that Youngblood was a guest in Barrett’s home. While Youngblood behaved badly, he was intoxicated to the point that he was helpless to defend himself, and, despite his provocative behavior, Ms. Barrett considered him to be no threat to her. Disregarding his wife’s and the victim’s repeated pleas to stop his relentless attack, Barrett pistol-whipped Youngblood, tossed him around like a “rag doll,” stomped or kicked him, and gouged his eye so severely that a GBI agent and Barrett’s own attorney thought that he had been shot in the eye. Then Barrett kicked Youngblood in the abdomen with sufficient force to move his 200-plus-pound body several feet before shooting him at point blank range as he tried to comply with Barrett’s demand that he get in his truck and leave. Barrett’s expert at the hearing on the motion for new trial testified that Youngblood suffered a “significant beating.” Barrett, however, had no discernable injuries that were
The cases in the Appendix support the imposition of the death penalty in this case in that all involve a murder committed during the commission of an aggravated battery or a murder involving the (b) (7) aggravating circumstance. Several also include evidence that the victim had engaged in some provocative behavior. These cases show the willingness of juries to impose the death penalty under these circumstances. “Rarely, if ever, will the facts surrounding two capital felony cases be exactly alike and we are not required to find identical cases for comparison in our proportionality review.” Wilson v. Zant, 249 Ga. 373, 388 (6) (290 SE2d 442) (1982), overruled on other grounds by Morgan v. State, 267 Ga. 203, 204-205 (2) (476 SE2d 747) (1996). Rather, we are required to “determine whether the defendant’s sentence of death is excessive in comparison to the sentences imposed in ‘similar cases’ upon ‘similarly situated defendants.’ ” Id. (citing Gregg v. Georgia, 428 U. S. 153, 198 (96 SC 2909, 49 LE2d 859) (1976); [OCGA § 17-10-35] (c) (3)). Considering the murder and the defendant, we find that Barrett’s death sentence is not disproportionate within the meaning of Georgia law. See OCGA § 17-10-35 (c) (3).
5. The evidence presented at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of the statutory aggravating circumstances in this case. See Ring v. Arizona, 536 U. S. 584 (122 SC 2428, 153 LE2d 556) (2002); Jackson, 443 U. S. at 307; OCGA § 17-10-35 (c) (2). We conclude that Barrett’s death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See OCGA § 17-10-35 (c) (1).
Judgments affirmed. All the Justices concur.
Appendix.
Arrington v. State, 286 Ga. 335 (687 SE2d 438) (2009); Walker v. State, 281 Ga. 157 (635 SE2d 740) (2006); Braley v. State, 276 Ga. 47 (572 SE2d 583) (2002); Terrell v. State, 276 Ga. 34 (572 SE2d 595) (2002); Drane v. State, 271 Ga. 849 (523 SE2d 301) (1999); Mize v. State, 269 Ga. 646 (501 SE2d 219) (1998); Carr v. State, 267 Ga. 547 (480 SE2d 583) (1997); Hittson v. State, 264 Ga. 682 (449 SE2d 586) (1994), overruled on other grounds by Nance v. State, 272 Ga. 217 (526 SE2d 560) (2000), and Henry v. State, 278 Ga. 617 (604 SE2d 826)
Barrett committed the crimes on August 4, 2002. A Towns County grand jury indicted him on December 3, 2002, charging him with malice murder, aggravated assault, aggravated battery, and two counts of possession of a firearm during the commission of a felony. The State filed written notice of its intent to seek the death penalty on February 3, 2003. The voir dire examination began in Towns County on July 12, 2004. The trial court granted Barrett’s motion for a change of venue on July 27, 2004. The trial was recommenced in Hall County with jury selection beginning on March 7, 2005. The jury found Barrett guilty of all counts of the indictment on March 22, 2005, and recommended a death sentence for the malice murder conviction the following day. In addition to the death sentence, the trial court sentenced Barrett to 20 years in prison for aggravated battery and five years in prison for one count of possession of a firearm during the commission of a felony, with all sentences to be served consecutively. The aggravated assault conviction and the remaining possession conviction merged with the other convictions. Barrett filed a motion for new trial on April 18,2005, which he amended on October 20,2008, and which the trial court denied on November 21,2011. Barrett filed a notice of appeal on November 30,2011. The appeal was docketed in this Court on January 4,2012, for the April 2012 term of this Court. The case was orally argued on April 16, 2012.
A deputy sheriff at the crime scene made an audiotaped recording of Barrett’s spontaneous statements which he made while outside the residence after his removal from the home. The recording also contains statements made by Ms. Barrett. At oral argument, Barrett’s counsel urged this Court to review the recording, contending that the statements contained therein support Barrett’s testimony and discredit Ms. Barrett’s testimony. Because the recording was admitted into evidence and played before the jury, we have reviewed it as part of our review of the complete record. See OCGA § 17-10-35. We note that portions of the recording are unintelligible and that much of what is discernable from Barrett’s statements is either ambiguous or couldhe perceived as self-serving. Moreover, “[tjhis Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.” (Citation omitted.) Dean v. State, 273 Ga. 806, 807 (1) (546 SE2d 499) (2001).
While both parties indicated in their briefs to this Court that the trial court also charged the jury on involuntary manslaughter, a review of the trial transcript shows that the trial court refused defense counsel’s request to so instruct the jury
It is undisputed that Youngblood was a guest in Barrett’s home at the time that the altercation began. Under Georgia law, “defense of habitation is not a defense available to a defendant when the victim is a guest in the home,” even in cases where the guest-victim is unruly or even threatening. Stobbart v. State, 272 Ga. 608, 612 (4) (533 SE2d 379) (2000) (holding that the habitation defense was not available where a guest-victim prevented the resident-defendant and his girlfriend from leaving the defendant’s apartment, threatened the defendant that he would “ ‘get what’s coming to [him,]’ ” and placed his hand on his pistol). Nor does the habitation defense become available by virtue of the resident-defendant’s directing the guest-victim to leave the residence and the guest-victim’s refusing to do so. See Stephens v. State, 71 Ga. App. 417, 421, 422-423 (2) (31 SE2d 217) (1944) (holding that the habitation defense was not available where the resident-defendant directed the guest-victim to leave because of his unruly behavior before the guest-victim came at the defendant with a knife). This is so because the statute is concerned with “ ‘homicides having their origin in a forcible attack and invasion of the property or habitation of another [.]’ ” (Citation omitted; emphasis supplied.) Id. See also Stobbart, 272 Ga. at 612 (4). We express no opinion as to what, if any, effect the fact that Barrett “had finally thrown [Youngblood] out” of the residence had on the issue of whether he was entitled to a defense of habitation charge, as that issue is not before us.
The trial court noted in its order appointing Valpey as co-counsel that it “had previously observed that [Barrett] and [Mears] were not in agreement regarding the defense of this case and it was unlikely that an attorney-client relationship would be maintained between [Barrett] and the State agency responsible for death penalty representation.”
Mears placed on the record that Barrett “[wa]s very insistent, and rightly so, that he wantfed] the case changed to another venue.”
Effective January 1,2013, the admission ofsueh evidence is governedbyOCGA §§ 24-4-404 and 24-4-405.
During Parks’s cross-examination of one of the State’s similar transaction witnesses at the guilt/innocence phase, he elicited testimony that Barrett’s son had lived with him.
Barrett also contends that the alleged harm caused by the omission of an instruction pursuant to subsection (2) was exacerbated by the fact that the prosecutor in his closing argument “misled” the jury on the duty to retreat. See OCGA § 16-3-23.1 (providing that a person who uses force in accordance with Code Section 16-3-23 has no duty to retreat). However, the trial court charged the jury on the lack of a duty to retreat. Therefore, assuming without deciding that the prosecutor’s remarks when viewed in context raised the issue of retreat, the jury would not have been misled. See Johnson v. State, 253 Ga. 37, 38-39(315 SE2d 871) (1984).
While the trial court found that “counsel was relying on a book of jury charges that was almost five years old,” Parks testified that he obtained the charge from “the most recent pattern charge book,” and the charge’s citation is to the Third Edition of the Suggested Pattern Jury
See Division 2, n. 4 above.
Barrett’s contention that trial counsel were deficient for failing to object to Dr. Darrisaw’s testimony on this basis is without merit. Although Parks testified at the hearing on the motion for new trial that he did not know at the time of trial that Dr. Darrisaw was not licensed
At trial, the State introduced an exhibit that Barrett identified as a letter that he had written to an editor of a gun magazine “to see if he would investigate the shooting... to see if it was a frontal entrance wound... to the right eye, or if it [wa]s a rear entry wound, like Miss Darrisaw said.” Barrett’s sustained contention that he shot Youngblood in the face is perhaps best reflected by the fact that, as recently as October of 2010, he filed and argued his own “Motion to Exhume the Victim’s Body Prepared by Defendant Personally,” despite being represented by counsel, and that, in his motion, he alleged that the “necessary measure” of
Barrett’s competency at the time of trial to make “the ultimate decision” regarding whether or not to present mitigation witnesses is not at issue. See Morrison v. State, 258 Ga. 683, 686 (3) (373 SE2d 506) (1988). Mears arranged for Barrett’s pre-trial evaluation by an independent psychiatrist, and the results of that evaluation, which were available to Parks and Valpey, were that Barrett had “no major mental illness or cognitive disturbance,” “[e]xhibit[ed] no brain organicity,” had “intact” judgment, and had “good concentration, attention, and memory.” Barrett has raised no issues regarding his mental competency or other mental health matters in his motion for new trial.
Parks testified that, while Barrett hampered trial counsel’s efforts by refusing to cooperate and to provide them with any names of potential mitigation witnesses, they learned about “some hopeful matters in mitigation” while interviewing Sutton and Fortenberry as fact witnesses in regard to guilt/innocence issues.
Barrett confirmed before the trial court at the hearing on the motion for new trial that Parks “told the truth that I’d rather be dead instead of alive with the sentence, which was totally true.”