*1
filе defensive
uncontested,
and the failure to
the divorce
ings,
taking
on the
hearing
of notice and
constitutes a waiver
pleadings
decision,
courts have been
appellate
the
final decree. Since this
the
in order
to the Hardwick rule
exceptions
allow
willing increasingly
professional
unfair result and to advocate
fundamentally
to avoid
See,
Herring, supra
e.g., Herring
relations cases.
ism in domestic
(court
intent
to contest
the
factors such as
considered
decree);
Anderson v. Ander
challenge
and timeliness of
decree
(1994) (defendant
(441
240)
to file
who failed
SE2d
son,
Decided November 15, 2000. denied December Reconsideration Harris, Gary appellant. C. Edlin, Edlin, Jacobson, for appellee.
Stern & Shiel G. E. Jennifer S00A0993. DAVIS v. TURPIN.
Hunstein,
Justice.
tried,
and sentenced to death
Troy Anthony Davis was
convicted
оf a law enforcement officer and other
August
killing
in
1991 for the
conviction and
1992;
He
this Court affirmed his
appealed
crimes.
State,
Davis
sentence in Davis v.
2. This Court reviewed Davis’s death sentence on direct appeal
and found that
it was “neither excessive nor disproportionate
to pen-
cases,
alties
imposed
similar
considering both the crime and the
(18).
Davis,
defendant.”
supra,
It is the reaction of the sentencer to the evidence befоre it which concerns this court and which defines the limits which sentencers in past tolerated, cases have whether before or after [Furman v. Georgia, U. S. 238 346) (1972)]. 2726, 33 LE2d When a substantially reaction is out of line sentencers, with reactions of prior then this court must set aside the death as excessive. penalty (2) (211 356) (1974). Because State, 233 Ga. Ross v. jury’s this Court it that concerns evidence before reaction to the it is a proportionality if review, it is irrelevant the sentences in its cases used already comparison are, time, at the or later werе juries’ the evidence. reactions to unrelated to for reasons reversed Finally, have received other defendants contends that Davis light gravity. In crimes of similar than death for sentences less severely aggravated merit in his crime, we find no of Davis’s
nature
unlawfully disproportion-
penalty would be
that the death
contention
analysis
proportionality
were under-
case, even if a new
ate in his
(19) (a).
supra,
State,
247
assuming,
however,
find that
because we
Davis’s claims fail even
as
applicability
Cuyler
below,
we do
of the more lenient
standard.
interest]
Generally,
possibility
[of
“the
of conflict
is insufficient to
(IV)
impugn
Cuyler, supra,
a criminal conviction.”
446 U.
atS.
(C).
might
strongly suggest
While certain circumstances
so
the likeli
an
hood of
actual conflict
interest
that a trial court would be
expected
inquiry
sponte,
we
not find
such
conduct
sua
do
id.,
circumstances existed
(“[u]nless
Davis’s case. See
anof actual conflict is not when a defendant’s attor ney objects joint representation and the trial court overrules the objection exploring objection adequacy without the basis of the or the representation interest”); potential of the see Cabello United in the face of a conflict (II) (7th States, 188 F3d Cir. (“[t]he prejudice to which extent the defendant must demonstrate depends brought on whether and to what extent the conflict was to Davis bears the burden to judge”). Thus, the attention of the trial adversely show that an actual conflict interest affected his attor (III) (6th
neys’ performance.
Anderson,
See Smith v.
689 F2d
1982) (“[w]hen
individually
through
Cir.
defendant,
representative,
timely
fails to raise his concern for a
conflict
affect(ing)
adversely
fashion, an ‘actual conflict of interest
his law
*4
established”).
yer’s performance’ must be
(b)
attorney
We first address Davis’s contention that
the new
appointed
during
raise
to
claims of ineffective assistance
his motion
appeal operated
for a new trial and direct
under
a conflict
interest.
“zealously
The habeas court found that
new
com-
Davis’s
counsel
and
petently represented
challenging
Davis’s
in
interests
the effective-
primary
ness of the
defense team’s assistance at trial” and that there
support”
allegation
was “no
for the
that Davis’s new counsel failed in
professional
friendly acquaintance
as a
duties
result of the
he had
finding
sup-
with Davis’s trial counsel. This mixed
of law and fact is
context,
In
the record.
counsel’s statement
that
was
ported by
coun-
between himself and Davis’s trial
relationship”
no “adversarial
in
to one another
attorneys
the two
related
merely
sel shows
manner,
ineffective assistance
congenial
professional
inef-
zealously
Counsel
an
prosecuting
were not
prosecuted.
claims
independently
be free to
operate
fective assistance claim must
Thomas,
is in
See
attorney
performance
question.
Ryan
whose
507) (1991);
State,
see also Kennebrew
Ga.
1)
(1996).
(2)
case,
sup-
In
the record
this
finding that Davis’s new cоunsel operated
the habeas court’s
ports
adequate
and took
to examine
independence
steps
with appropriate
record,
by reviewing
by investigating
performance
trial counsel’s
record,
outside the
Davis both inside
interviewing
matters
his trial counsel.
presence
and outside the
sug-
Because
the trial court or habeas court records
nothing
loyal-
that Davis’s
counsel had divided
gests
supplemental
appellate
any way negatively
ties
allowed his actions to be in
affected
or
representation,
simultaneous
we conclude that
the habeas court did
under
finding
operating
not err
that Davis’s new counsel was
conflict
actual
interest.
(c)
original
began oper-
Davis also contends that his
trial counsel
ating
appointed
under a conflict of interest once new counsel was
to
Again,
claims.
we
that he
pursue ineffective assistance
conclude
has
to show that an
conflict of
existed.
failed
actual
interest
original
responsible
Davis’s
counsel was
trial
raising
during
appeal.
court error
Davis’s motion
new trial and direct
loyalties
duty
were
between his
suggests
Davis
counsel’s
divided
zealously
meritorious
issues on
behalf and his own
argue
Davis’s
against
claims that he had rendered
defending
interest
himself
However,
assistance
Davis’s trial.
during
nothing
ineffective
suggests
original
counsel
his best
record
withheld
efforts
reputation
was
professional
subjected
was distracted because
scrutiny.
The record shows
counsel
original
confidentially
Davis
with his
encouraged
speak freely
new
any
concerning
have
might
rep-
counsel about
concerns
had
resentation
at trial and
several
areas for
suggested
possible
even
Accordingly,
accept
examination
to Davis’s new counsel.
we
counsel continued
finding
original
habeas court’s factual
that Davis’s
steps
to serve Davis’s interests and took active
to facilitate the efforts
Armontrout,
of Davis’s new counsel
do the same. See Carter v.
1991)
(8th
F2d
(applying Cuyler
accepting
Cir.
state
credibility
attorney
was
finding
being
court’s
and factual
who
compromised
her client
proceeding
sued
criminal
had not
(II) (B)
client);
her
to her
As Federal by appeals found court of in another case alleged of interest, “any conflict of we find that conflict that might have stemmed from in protecting professional [counsel’s] interest active, when he standing evaporated” took professionally-responsible the steps litigation to facilitate of Davis’s claims of ineffective assis Attorney tance. Fields v. of Md., Gеneral State 956 F2d 1298- of (III) (4th 1992). Accordingly, Cir. we conclude that the habeas court did not err in that finding original oper counsel did not during ate under actual conflict interest Davis’s motion for new trial and direct appeal.
4. Davis claimed in the
that
habeas court
his constitutional
rights
alleged
were denied
absence
critical
of his
stages
trial proceedings. Davis also claimed that his
ren-
appellate counsel
dered ineffective
failing
assistance
raise the
issue
absence on direct
We
appeal.
hold
the habeas court correctly
this claim
determined that
was
it
procedurally defaulted because was
appeal
raised
direct
the procedural
find
bar erected
by the failure to raise this claim on direct
has not here been
showing
overcome
of sufficient cause
prejudice. Turpin
(2) (a) (493
900) (1997).
Todd,
I
with
respectfully disagree
the
majority’s decision
affirm the
habeas
ruling
procedurally
court’s
that Davis is
barred from pursu-
ing his habeas claim thаt electrocution is cruel and unusual punish-
ment
under the
and United States constitutions. For
rea-
the
follow,
sons that
I would vacate that
portion
the habeas court’s
denying
order
for writ
petition
of habeas
insofar as
the order
procedurally
concluded that Davis was
from
barred
pursu-
ing his
claim that execution
is cruel
electrocution
and unusual
and remand the
punishment,
proceedings.
case for further
petition
It is in Davis’s
he raised for the first time
argument
the use of
the
electrocution as
means of execution
is cruel
punishment.
notes,
and unusual
As the majority
the habeas
court did not address the merits of Davis’s contention
because
“evolving
court concluded that
the failure to raise
standards
decency”
at
argument
trial constituted
waiver under
Har
Black v.
754) (1985).
din,
Todd,
Ga.
raised
the first time in
bar to claims
are
reserving
prevent litigants
proceeding
meri-
from
exists tо
a habeas
delay
interpose
appeal in an effort to
needless
on direct
torious issues
complete
Hardin,
Black
their cases. See
resolution of
(4)
(holding
that an available claim that
pro-
then exists a
“waived” and that “there
raised on direct
*6
proceedings”).
corpus
to
in habeas
cedural
its consideration
bar
Accordingly,
to
directs habeas courts
“consider whether
law
Georgia procedural
petitioner
complied
[a
has]
at
.
rules
trial
. .
provides
showing
appeal”
that “absent a
of cause
and on
and further
prejudice,
noncompliance
requirement, and of actual
with such
(d);
granted.”
§
shall not be
OCGA 9-14-48
see
relief
(2) (502
458) (1998).
Mobley,
Turpin
635,
269 Ga.
637
v.
necessary
proce
required showing
to
of cause
overcome the
easily
is
made. This Court has rec
dural bar to defaulted claims
ognized
not
appellate
one
ineffective assistance of
counsel as
few
satisfy
requirement.
circumstances,
can, in certain
causes that
Turpin
(2) (a) (“The procedural
supra,
Todd,
bar,
v.
exceptions to the of the review limitation of defaulted claims necessary, nothing logical more than a extension “cause and prejudice Black, Ga. 240 test” set forth in Black v. Hardin. 255 at (authorizing “showing upon a consideration of defaulted claims adequate object pursue cause for failure to a accused”); prejudice Turpin Lipham, showing of actual to the see (2) (510 32) (1998); Cherry 208, Abbott, 209-210 258 517, Turning question correctly to the of whether the habeas court rejected procedurally as fail- barred because Davis’s appeal, ure to raise it at trial and on direct I note that at the eviden- tiary hearing, proffered support numerous of his affidavits punishment. contention that electrocution is cruel and unusual
251 by These show that executions electrocution purported affidavits errors,1 plagued shocking grotesque have been there-is a if all many substantial risk that executions electrоcution unnecessary disfigurement,2 result in the infliction pain mores surrounding societal execution electrocution have under- gone meaningful evolution since Davis’s sentence was imposed trial, across legislative developments and that the nation evidence a national abandonment of electrocution as means of execution.3 argued vigorously brief has post-hearing electrocution steadily acceptable been abandoned as means of execution and inquiries recent scientific into elеctrocution4 have cast serious 1 Denno, 1996, 5, (outlining See ¶ Affidavit of Deborah W. December 18 elec “botched” trocutions, including two, Georgia, appeal). one of which was in since Davis’s direct 2 Smith, (describing Affidavit Clive A. Stafford December 1996 electrocu Hutchinson, 5,1996 Georgia); (describing tion Affidavit Paula B. December elec 1996 elec Baich, Nebraska); 4,1996 (describing trocution in Affidavit of Dale A. December Nebraska); Boger, (describing trocution in Affidavit of John Charles December trial) (shortly September Georgia). after Davis’s electrocution in Denno, 5, 1996, (“Altogether, See ¶ Affidavit of Deborah W. December 20 states Moreover, from have switched electrocution to another method of execution. five of these years.”); Dieter, last states have switched in the three Affidavit of Richard C. December *7 electrocution, (outlining legislative including of in 1996 national abandonment decrease use (abolish affidavit); of electrocution from 1991 to date of also La. Rev. Stat. Ann. § see 15:569 15, 1991); September electrocution, ing (abolishing electrocution as of 1990 Pa. Laws 145 repealed by specifies Pa. 2121.1 codified as 61 Code until 61 Pa. Code 3004 which also § § execution); injection (allowing of lethal injection as method Ohio Rev. Code Ann. 2949.22 lethal § July 1, 1996); § as an alternative to electrocution as of Va. Code 53.1-234 Ann. injection 1, 1995); (allowing January lethal as an alternative electrocution as of Conn. (abolishing 1, 1995); § Gen. Stat. 54-100 electrocution as of October Ind. Code 35-38-6-1 § 1, 1995); (abolishing July (abolishing as of Law § electrocution N.Y. Correct. 658 electrocu- 1, 1995); September for on § tion crimes committed or after S.C. Code Ann. 24-3-540 injection 7,1995); (allowing Ky. lethal as an alternative to as of Rev. electrocution June Stat. (abolishing 31, 1998, imposed §Ann. 431.220 electrocution sentence is after where March providing injection imposed and lethal as alternative death sentences before that date); (abolishing § Tenn. Code Ann. 40-23-114 electrocution for crimes committed on or 1, 1999, January providing injection after and lethal as an alternative for committed crimes date); (adopting injection except before that Fla. Stat. Ann. 922.105 lethal in cases where § elected, 2000); affirmatively January 14, (provid- § electrocution is effective OCGA 17-10-38 injection 1, 2000); ing by May 2000 execution lethal for crimes committed on after by (preserving persons Laws 947 execution electrocution for sentenced to death for crimes 2000). 1,May committed before 4 Webster, Ph.D., 4, (describing expert See Affidavit of John G. December 1996 review of apparatus opining degree in a for electrocution Louisiana and that determination of of the apparatus review); pain Georgia’s require expert inflicted would similar of Affidavit Har Hillman, (opining extremely painful, percentаge old Ph.D. that electrocution low of electricity scalp brain, applied penetrates to the the to reach the and death from skull slow); 5, Devinsky, M.D., based, (opining electrocution is Affidavit of Orrin December 1996 part, intensely painful” “[e]lectrocution on of an in 1995 review execution can be instantaneous); Price, impossible it to conclude that death is Affidavit of D. Donald Ph.D., 5, (outlining ongoing opining December 1996 research and that electrocution pain might portions extreme of and “horror” of induce sensations stimulation certain of brain). the
252 its humaneness.
doubt proffered progressively- of that his evidence Davis contended changes society’s emerging were indic views toward electrocution decency” “evolving pro the of sufficient to invoke ative of standards against punishments cruel unusual embodied the tections Eighth to the Constitu Amendments United States Fourteenth Georgia Paragraph I, I, VII of the Consti tion and Article Section the bar to his claim. and sufficient to overcome tution (78 630) (1958); Trop 86, 590, U. 101 SC 2 LE2d see Dulles, v. S. Penry Lynaugh, LE2d v. 492 U. SC also (“While (1989) against of the men a national consensus exeсution ‘evolving tally may someday emerge reflecting the retarded stan progress maturing society,’ decency that mark the dards today.”); is insufficient evidence of such consensus tucky, Ken Stanford 306) (1989); Fleming S. 361 106 LE2d U. 339) (1989) (applying evolv Zant, 259 Ga. ing decency standards of to the Constitution’s ban cruel punishment). argument suggests that, at the and unusual appeal, claim time of electrocution was cruel and unusual direct the factual basis for an effective
punishment exist, did not or at did not extent that it does least exist now. recently
A federal district court was confronted with a similar persua- situation, I find that court’s resolution of this issue to be (M.D. 2000), Haley, FSupp2d In sive. McNair eral Ala. fed- application procedu- district court considered federal petitioner’s evolving ral default doctrine claim that standards decency barred execution electrocution under federal magistrate constitution. The federal which first considered the petitioner’s corpus petition federal habeas had found that evidence of changing malfunctioning legislative developments, mores, societal and of recent merely electric chair were additional evidence tending previously existing support and, therefore, claim exception the reasonably where “the factual or basis for a claim was apply.
available to counsel” did Id. fed- stating, “T[he] disagreed, simply eral district court evidence does not eighth-amendment support *8 that electrocution offends evolv- decency; ing very instead, standards of it social is the basis (Emphasis supplied.) Id. at claim its 1277. court reiterated itself” holding by characterizing evolving the еvidence of societal stan- necessary very preconditions for dards as “the claim itself.” Id. The court then concluded as follows: “Because these new facts are the reasonably peti- basis for claim was not available proce- proceedings, finds tioner’s state this court cause to excuse the Although applies Georgia dural default.” Id. 1277-1278. this Court quite law, I believe Davis’s situation to be similar and the very district court’s resolution of the to be question persuasive. By its nature, it quite argument that Davis’s stan- possible “evolving of deсency” dards demonstrate that electrocution cruel and unu- punishment sual could not have raised in the same manner been 1992 when his direct was heard as it could have been raised when evidentiary very December 1996 was held. The hearing of is that changed. basis Davis’s claim societal standards have Because the court of claim habeas that “evolv- disposed decency” standards of ing demonstrate viable claim cruel and under punishment unusual and federal State constitutions with- out reference to whether Davis had or could made a showing have that “the factual reasonably [that] basis for claim was not available to counsel” Davis’s direct I appeal, would vacate that court’s aspect order remand the case for further remand, consideration. determine On the habeas should whether Davis has made a proffer evidence unavailable to him during his direct appeal that is sufficient to warrant consideration that electrocution is cruel unusual punishment light evolving standards If the decency. habeas court should find that Davis has made proffer, а sufficient be proffered evidence should admitted, and a resolution of the claim its merits should be made. In the judicial interest of economy, habeas court should also con- any sider supplemental proffer Davis might make to show purporting further evolution of relevant “standards of since decency” the time his evidentiary hearing.
I am authorized to state Presiding Justice Fletcher Jus- join tice Sears this dissent.
Decided November Reconsideration denied December Dunn, Mears, Lakhi, Thomas H. Michael Priya N. Charlotta Norby, for appellant. Chambers, Sr., Baker,
Joseph L. Wesley Homey, Thurbert E. General, Attorney Susan V. Senior Boleyn, Attorney Assistant Gen- eral, Vrolijk, Allison B. Attorney General, appellee. Assistant Olive,
Mark E. amicus curiae.