Lead Opinion
Gary Chad Thomason is a burglar who shot and killed the homeowner who came upon him while he was burglarizing the victim’s home. In a bench trial, he was convicted of malice murder, burglary, and possession of a firearm by a convicted felon, and was sentenced to death. After affirmance by this Court of that conviction and sentence (Thomason v. State,
Case No. S02A1515
1. In granting relief, the habeas court noted that the mitigation evidence offered at trial consisted only of Thomason’s profession of remorse, his lack of violent tendencies, testimony that he was easily influenced and was always with someone else when he got in trouble, and his mother’s mention of his hospitalization at Charter Peachford Hospital for marijuana usage. The habeas court then chronicled the mitigation evidence trial counsel had and did not use
A habeas court’s determination on a claim of ineffective assistance of counsel is to be affirmed unless the reviewing court concludes the habeas court’s factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. See Head v. Carr,
Mitigating evidence, “anything that might persuade the jury to impose a sentence less than death,” (Head v. Ferrell,
Trial counsel recognized the need for expert testimony, yet failed to have the expert who had already conducted an interview with the defendant execute an affidavit for use in securing additional funding for the expert. Instead, trial counsel asked the expert for a letter breaking down the cost of a full forensic psychiatric evaluation of Thomason. The expert’s letter apparently served as the basis for trial counsel’s request for an additional $25,000 for mental health expert assistance. When trial counsel’s efforts to obtain the additional funding were rejected by the trial court, trial counsel never contacted the expert again. In an affidavit submitted at the habeas hearing and relied on by the habeas court, the expert stated he would have worked with counsel without further funding or for a figure significantly less than that set forth in his letter had that been necessary. The expert noted he could have reduced the cost by utilizing defense team members to conduct interviews rather than conducting them himself and, had he had the materials provided to him by habeas counsel, he would have been able to assist in providing evidence in mitigation. However, trial counsel never contacted the expert again once the request for additional funding was denied. We conclude, given the importance of mitigating evidence in death penalty cases, that an attorney has not acted reasonably when he fails to call mental health experts he knows have mitigating evidence and explains his failure to present lay mitigating evidence by asserting that he had no experts to call.
It is likely that trial counsel’s guard was down at the sentencing phase due to counsel’s belief that the trial judge who presided over the bench trial would not impose a death sentence.
These circumstances, coupled with counsel’s failure to make use of the mitigating evidence and the experts they had, persuade us that the habeas court was correct in its conclusion that there is a reasonable probability that the presentation of the mitigating evidence presented at the habeas hearing would have changed the outcome of the sentencing phase of Thomason’s trial. See Head v. Carr, supra,
Case No. S02X1516
2. In any case in which doubt arises concerning this Court’s jurisdiction, we have a duty to address that question. Powell v. City of Snellville,
The dissent is correct in noting that OCGA § 9-14-52 (a) provides that appeals in habeas corpus cases shall be governed by the Appellate Practice Act, OCGA § 5-6-30 et seq. However, that provision only means that appeals in habeas corpus cases, once begun, are to be handled in the same way as other civil appeals. The Appellate Practice Act does not provide for every single act involved in an appeal. Because there is no provision in the Appellate Practice Act for computing time limits, the Court of Appeals has at least twice found it necessary to supplement the provisions of the Appellate Practice Act by reference to OCGA § 9-11-6: Southern Guar. Ins. Co. of Ga. v. Goddard,
3. To the extent that Thomason’s cross-appeal arguments address matters relevant solely to his death sentence, they are moot in light of our affirmance in the main appeal. Accordingly, those arguments will not be discussed here.
4. Thomason contends his trial counsel rendered ineffective assistance by advising him to waive a jury trial. The habeas court found as fact that trial counsel had a number of strategic reasons to favor a bench trial, including a belief that a judge would think Thomason’s crimes less worthy of death than a jury, a perception that the trial judge personally disliked the district attorney for various reasons, a perception that the trial judge was annoyed with the district attorney’s conduct during plea discussions, and a fear of the impact the victim’s family in the courtroom would have on a jury. The habeas court also found as fact, however, that one of counsel’s reasons for preferring a bench trial, a belief the trial judge had never sought the death penalty during his former tenure as a district attorney, was incorrect. The habeas court, after finding these facts, did not decide as a matter of law whether counsel had performed unreasonably in recommending Thomason waive his right to a jury trial, but proceeded directly to the second prong of the test set out in Strickland v. Washington,
5. The habeas court rejected Thomason’s contention that counsel were ineffective in their conduct of the plea bargain process. That
6. Thomason has failed to demonstrate that his trial counsel rendered deficient performance in seeking funds for a crime scene reconstruction expert, and, furthermore, even assuming counsel performed deficiently, Thomason has failed to show prejudice relevant to his convictions, as the testimony presented by Thomason’s investigator in the habeas court fails to cast doubt on Thomason’s guilt. Id.
7. Thomason argues that his written and oral waiver of a jury trial was not knowing, intelligent, and voluntary. As an independent claim, this argument is barred by procedural default, because it was not raised on direct appeal. Head v. Ferrell,
8. This Court found on direct appeal that the evidence was suffi
9. The habeas court correctly found Thomason’s claim of alleged evidence suppression by the State was barred by procedural default because it was not raised on direct appeal. Head v. Ferrell,
10. The habeas court properly found Thomason’s claim regarding the Unified Appeal Procedure was barred by procedural default and no cause or prejudice had been shown to set aside that bar. Head v. Ferrell,
11. The habeas court properly found Thomason’s claim regarding cumulative error, which is not recognized in Georgia courts, was barred by procedural default and no cause or prejudice had been shown to overcome that bar. Head v. Ferrell,
12. The habeas court correctly found Thomason’s claim he was tried while incompetent was barred by procedural default and no cause or prejudice had been shown to overcome that bar. Head v. Ferrell,
13. The habeas court correctly found Thomason’s claim regarding his being called as a witness by the State in his competency trial was barred by procedural default. Id. The habeas court did not err in not finding Thomason had demonstrated prejudice, either with respect to the cause and prejudice test applicable to claims barred by procedural default or with respect to Thomason’s related ineffective assistance of trial counsel claim. Id. See Strickland v. Washington, supra,
14. The habeas court correctly found Thomason’s unspecific claim regarding his alleged absence during portions of his trial was barred by procedural default and Thomason had failed to show cause or prejudice sufficient to set aside that bar. Head v. Ferrell, supra,
16. The trial court correctly found Thomason’s claim of alleged misconduct by his competency trial jurors was barred by procedural default and Thomason had failed to show cause and prejudice sufficient to set aside that bar. Head v. Ferrell,
Judgment affirmed in Case No. S02A1515.
Notes
Trial counsel had, but did not use, documentation of Thomason’s learning disabilities; teacher referrals for psychiatric assessment; a three-month hospitalization at Charter Peachford with diagnoses of major depressive disorder, marijuana dependence, and amphetamine abuse; the clinical psychologist who had testified at Thomason’s competency hearing that his IQ was 77, a score that indicated borderline mental functioning; a professional diagnosis that Thomason’s parents were enablers and that Thomason had feelings of insecurity, low self-esteem, and inferiority; a clinical social worker’s opinion that Thomason’s family had a strong genetic disposition to alcohol and drug abuse; and that Thomason had dropped out of school after completing the seventh grade and had a history of suicidal ideations and possible suicide attempts.
At the habeas hearing, Thomason’s elementary school principal, who was called as a witness in the sentencing phase only to authenticate school records, recounted an elementary school incident involving Thomason and his father’s reaction to school officials’ concerns about Thomason’s behavior. The habeas court admitted an affidavit from Thomason’s uncle, who testified during the sentencing phase that Thomason was a passive child, in which affidavit the uncle tells of Thomason’s drug usage at a young age and of the rape and abuse Thomason suffered in prison. Thomason’s only sibling and several elementary school teachers who were not contacted by trial counsel testified at the habeas hearing or executed affidavits about their personal knowledge of Thomason and his circumstances. Medical records other than the Charter Peachford hospitalization and school assessments were not obtained, even though one indicated Thomason had suffered a febrile convulsion as an infant, and a treating physician stated in an affidavit that he recalled treating Thomason 26 years earlier because “he seemed particularly slow” and the physician feared he was mentally retarded.
On. advice of counsel, Thomason waived his right to a jury trial. Counsel believed the case was not a death penalty case and that a judge would see that more clearly than a jury, especially in light of the constant courtroom presence of the victim’s family, who were influential members of the community. Counsel also believed (albeit wrongly) that the judge before whom the case was tried had never sought the death penalty while serving as district attorney; that the judge disliked the current district attorney because the latter had opposed and defeated the judge in an election for district attorney; and that the judge believed the case called for life imprisonment since the judge had expressed displeasure with the district attorney for deferring to the victim’s family while negotiating a plea agreement for life imprisonment.
Dissenting Opinion
dissenting.
In my view, the habeas corpus court erred in determining that Thomason’s counsel rendered ineffective assistance in the sentencing phase. Moreover, although I would agree that the cross-appeal lacks merit, I would hold that this Court is without jurisdiction to entertain it. Accordingly, I respectfully dissent.
1. The evidence at trial showed that Jerry Self arrived at his home on August 21, 1992, and discovered an unfamiliar automobile parked in his driveway. Mr. Self parked his truck behind the unfamiliar automobile, telephoned the police, and sat waiting. The evidence strongly suggested that Thomason, who had entered Mr. Self’s home by breaking a front window, took Mr. Self’s .357 caliber handgun from inside the home, exited through the back basement door to avoid Mr. Self’s attention, climbed over a fence, came around the home through a wooded area, opened the passenger door of Mr. Self’s truck, and fired repeatedly at him. Thomason then pulled Mr. Self’s body out of the truck and onto the driveway, drove the truck to the front yard, and hastily fled in the automobile in which he had arrived. Two officers approaching Mr. Self’s home carefully observed Thomason fleeing alone in the automobile and radioed a description of both the automobile and Thomason. Thomason was captured soon thereafter in the suspect automobile with Mr. Self’s blood on his clothing in a location consistent with his having sat in the driver’s seat of Mr. Self’s truck. Mr. Self’s engraved lighter, as well as jewelry
The habeas court vacated Thomason’s death sentence on the ground that Thomason’s trial counsel rendered ineffective assistance in preparing and presenting mitigating evidence in the sentencing phase of the trial. In that phase, the State put up evidence of Thomason’s extensive criminal history. Testimony from Thomason’s witnesses showed that Thomason had been treated at Charter Peach-ford Hospital, suggested that he was a non-violent and easily-led person, and highlighted his family’s sacrifices on his behalf and their hope that he not be sentenced to death. Thomason himself testified about his own remorse.
An ineffective assistance claim must demonstrate both that counsel performed deficiently under constitutional standards and that the deficiency prejudiced the defendant to the extent that it in reasonable probability changed the outcome of the criminal proceeding. Strickland v. Washington,
Whether counsel rendered ineffective assistance is a mixed question of law and fact. On appeal, this Court accepts the lower court’s findings of fact unless they are clearly erroneous; but it must independently apply those facts to the law. Strickland,
In the years leading up to Thomason’s trial, trial counsel surmised that mental health issues were potentially relevant both to a competency trial and to the sentencing phase of a death penalty trial. The trial court granted Thomason’s request for a court-funded examination of Thomason by a psychologist named Dr. Samuel Perri. Trial counsel also successfully moved the trial court for funding for assistant counsel and for 50 hours of private investigation, which investigation was to include “all matters which may have a bearing
Trial counsel forwarded Dr. Cheatham a check for $3,500, a copy of the indictment, and a copy of Dr. Perri’s report. After Dr. Cheatham’s initial examination of Thomason, trial counsel made an ex parte request for additional funding of $25,000. Trial counsel explained to the trial court that he had met with Dr. Cheatham at trial counsel’s home to discuss the case the evening after Dr. Cheatham’s initial examination of Thomason. In that regard, trial counsel also provided the trial court with a copy of a letter from Dr. Cheatham outlining additional work Dr. Cheatham proposed for a minimum fee of $25,000.
The trial court withheld a decision on the request and provided trial counsel with orders with which to obtain Thomason’s school records, incarceration records, and Charter Peachford Hospital records. Trial counsel provided the trial court with a copy of the records, and, in a subsequent ex parte hearing, trial counsel argued that the records raised sufficient concerns to warrant the granting of $25,000 for Dr. Cheatham’s proposed work or, alternatively, for the granting of one-third of that amount for preliminary work and the opportunity to renew the motion for additional funds. The trial court denied both alternative requests, and this Court found no error on direct appeal, holding that the records before the trial court did not demonstrate that additional mental health evaluation was “critical to Thomason’s defense” or that denial of such additional evaluation had rendered Thomason’s trial “fundamentally unfair.” Thomason v. State,
Much of what the habeas court found lacking in Thomason’s trial counsel’s performance in the sentencing phase regards Thomason’s school records and the records from his three-month period of inpatient psychiatric treatment at Charter Peachford Hospital. However, these are the same records that were before the trial court during trial counsel’s ex parte request for additional evaluation by, and at the direction of, Dr. Cheatham and the same records that were before this Court on direct appeal.
Thomason’s school records revealed that Thomason suffered from dyslexia, performed poorly, repeated grades several times, and had poor self-esteem. However, the records also included a great deal of information that would not have been mitigating. Thomason is described in the school records as having been hot tempered, confident to a fault, resentful toward authority, unwilling to accept correction, lacking in impulse control, lacking in anger control, defiant, abusive to others, lazy, lacking in respect of other people’s property,
The Charter Peachford Hospital records indicated that Thomason’s father had required Thomason to submit to treatment as a precondition for Thomason’s being bailed out of jail, where Thomason had landed after disappearing, from home for days and then being arrested for stealing and forging checks. Thomason received a final diagnosis of major depressive disorder, cannabis dependence, and amphetamine abuse. The records of his treatment included arguably mitigating references to his low self-esteem, his education failures, the fact that his parents enabled his drug use and rebellion by being overly permissive and somewhat in denial, the fact that he had a family history of substance abuse suggestive of a genetic predisposition to addiction, the fact that he had been introduced to drugs as early as eight years of age, and the fact that he cooperated at least some of the time in his own treatment. The records also showed, however, that Thomason was highly manipulative, was deceptive, had anti-social tendencies, was resistant to authority figures, refused at times to study or to participate in his treatment, lied to avoid studying, cheated on his GED work, had stolen from his parents in the past, likely stole an audiotape from the hospital, had an intelligence quotient of 94, and thought that he had a good relationship with his parents and that their lack of discipline was because they “love[d him] too much.”
Thomason’s lead trial counsel testified before the habeas court that he considered using Thomason’s records at trial without the assistance of an expert but that he “did not think that that was the main issue,” that portions of the records were helpful and other portions were damaging, and that he “didn’t know how to use [the records] properly” without expert testimony. Thomason’s assistant counsel testified by deposition in the habeas proceeding that he had discussed the records with lead counsel, that they found the records to be “valuable . . . [b]ut not standing alone[,]” and that they felt they should not use the records at trial without an expert “to interpret them and to explain them and provide some sort of background and an understanding of why these things are relevant to finding a reason not to put somebody to death.”
Given the mixture of aggravating and mitigating information in the records and given counsel’s consideration of strategy prior to making a decision not to use them, this Court would not be authorized to find that counsel had rendered ineffective assistance in foregoing use of the records at trial unless other circumstances shed an entirely different light on the matter. The habeas court addressed
Trial counsel’s and Dr. Cheatham’s testimonies are somewhat at odds. Dr. Cheatham gave habeas affidavit testimony claiming that he had not fully billed against the initial funds he had been provided prior to trial and that he “perhaps” would have been willing to do additional work for a reduced, or even no, fee. Trial counsel testified before the habeas court that the initial fee was for an initial examination, that Dr. Cheatham required additional money before reviewing Thomason’s records, and that Dr. Cheatham never offered to work for free. The habeas court’s finding of fact resolving conflict between Dr. Cheatham’s habeas affidavit testimony (wherein he speculated as to what he “perhaps” would have been willing to do), and the different view suggested by the trial record and the habeas testimony of trial counsel is highly suspect. However, that finding does not demonstrate trial counsel’s constitutionally deficient performance even if assumed correct. The record of ex parte hearings, briefs in the trial court, and letters to and from trial counsel and Dr. Cheatham all demonstrate the reasonableness of trial counsel’s belief that all of the funds already paid to Dr. Cheatham had been for the initial competency evaluation that he had already performed and that no other work would be possible without additional funds. The fact, if assumed true, that Dr. Cheatham “perhaps” would have done, or even would have done, some additional work without further funds does not demonstrate trial counsel’s constitutionally deficient performance as judged in reference to the circumstances confronting them at the time.
Again, this Court must consider the effectiveness of trial counsel’s assistance to Thomason within the context of circumstances at the time. The portions of Dr. Cheatham’s habeas testimony which address Thomason’s records and the background information available to trial counsel at the time of Thomason’s trial are not so compelling that there in reasonable probability would have been a different decision by the trial court regarding additional funds or a different outcome at trial. Those portions of Dr. Cheatham’s habeas testimony are, in fact, little different from the arguments that trial counsel himself made to the trial court from the records and that the trial court did not find sufficiently critical to warrant additional court funds. Thus, I would find that Thomason failed to demonstrate deficient performance or prejudice with regard to the manner in which his trial counsel sought additional funds for expert mental health assistance.
The habeas court also addressed a number of other pieces of evidence that the habeas court found mitigating and that were
Trial counsel were not without a sound strategy for arguing mitigating circumstances in the sentencing phase of Thomason’s trial. Lead trial counsel described his strategy as follows before the habeas court: “My strategy was not a guilt or innocence strategy, it was a minimization of damage strategy. And, again, it was designed to prevent the death penalty.” At the guilt/innocence phase, trial counsel had emphasized the alleged lack of evidence indicating that Thomason had been the triggerman and the possibility that there had been an accomplice. In the sentencing phase, trial counsel continued and refined this theme, with witnesses indicating that Thomason was a non-violent and sensitive person, was a follower, was led astray by others into drugs and crime, and had never acted alone in his previous crimes. Thomason’s witnesses also pleaded with the trial court for mercy. Thomason himself became tearful in the courtroom and gave testimony about his own remorse. Counsel then argued that Thomason’s case was less aggravated than other cases the trial court would have seen, emphasized Thomason’s emotional response in the courtroom, emphasized the “unrehearsed” nature of Thomason’s witnesses, emphasized that the evidence put forward by the State regarding Thomason’s past crimes showed that he had always acted with an accomplice, and asserted that “this is not a death penalty case.” I believe that this sentencing phase strategy was reasonably chosen by trial counsel after their reasonable efforts to investigate other, alternative strategies.
In conclusion, the record in this case, as the discussion above illustrates, does not support Thomason’s claim of ineffective assistance regarding trial counsel’s preparing and presenting mitigating evidence in the sentencing phase. Counsel gathered potential evidence in a reasonable manner and presented selective portions of that evidence in a manner which was consistent with their chosen strategy.
2. The timely filing of a notice of appeal or notice of cross-appeal is necessary to confer jurisdiction upon this Court. See Fullwood v. Sivley,
The Warden filed a timely notice of appeal on April 24, 2002, and he served a copy of the notice of appeal on Thomason by placing the copy in the mail the previous day, April 23, 2002. Thomason’s notice of cross-appeal was filed on May 10, 2002, which was 16 days after the Warden’s notice of appeal was filed and which, more importantly, was 17 days after the copy of the Warden’s notice of appeal was served by mail.
An “appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant.” OCGA § 5-6-38. Service by mail of a notice of appeal is “deemed to be perfected as of the day deposited in the mail.” OCGA § 5-6-32.
Because Thomason’s notice of cross-appeal was filed 17 days after the date reflected in the Warden’s certificate of service of the notice of appeal, it was not timely filed, and the cross-appeal should be dismissed. See Southern Discount Co. v. Ector,
Although OCGA § 9-11-6 (e) adds three days to a prescribed period when a party is required to act in a civil action and notice is served by mail, that Code section has no application with regard to the time within which a notice of cross-appeal must be filed. As noted above, the Appellate Practice Act speaks to the time period within which a cross-appeal must be filed. The Act requires a notice of cross-appeal to be filed within 15 days of the service of the notice of appeal, OCGA § 5-6-38, and it specifies that a notice of appeal is served when it is deposited in the mail. OCGA § 5-6-32. Thus, even if the Civil Practice Act were somehow grafted to the Appellate Practice Act, OCGA § 9-11-6 (e) would not control this cross-appeal.
The majority’s reliance upon Southern Guar. Ins. Co. of Ga. v. Goddard,
I am authorized to state that Justice Sears joins in Division 2 of this dissent.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in Divisions 2-16 of the majority opinion and to the affirmance of the judgment in Case No. S02X1516. I dissent to Division 1 of the majority opinion and to the affirmance of the judgment in Case No. S02A1515 for the reasons set forth in Division 1 of Justice Thompson’s dissent.