HULETT v. THE STATE
S14P0819
Supreme Court of Georgia
November 17, 2014
296 Ga. 49 | 766 SE2d 1
HUNSTEIN, Justice.
A jury convicted Donnie Allen Hulett of two counts of malice murder and numerous related crimes, and Hulett waived his right to a jury trial as to sentencing for the murders. At the conclusion of a bench trial on sentencing, the trial court found the existence of multiple statutory aggravating circumstances and sentenced Hulett to death for each of the murders. See
Sufficiency of the Evidence
1. The evidence presented at trial showed the following. On July 22, 2002, between 8:30 and 9:30 a.m., the assistant director of the Mountain Top Boys Home in LaFayette saw brothers Larry and Arvine Phelps drive onto the home‘s property in Larry Phelps’ red Ford F-150 pickup truck. Both brothers were retired educators, and they had volunteered to cut trees and clear an area for a new building for the home. At approximately 10:30 a.m., the assistant director and boys from the home were headed to the post office in the home‘s van when they noticed a white Chevrolet Cavalier that was parked on the side of the road a few hundred yards past the home‘s driveway. They saw a white male near the automobile. Two boys in the van had also separately seen the Cavalier in the same spot the evening before, and
When returning from the post office approximately a half hour later, the home‘s van met Larry Phelps’ truck exiting the driveway, and the assistant director and several of the boys noticed that the truck‘s driver was not either of the Phelps brothers. Later in the day, one of the home‘s employees and a boy residing at the home visited the construction site, where they discovered the Phelps brothers’ bodies. Law enforcement personnel called to the scene investigated the Cavalier parked nearby. The officers learned that it had been reported stolen the previous evening when its owners returned from out of town and discovered that the vehicle and their daughter‘s new acquaintance, Donnie “D. J.” Hulett, had disappeared from their home in the late night hours of July 20 or the early morning hours of July 21. The couple reported that several other items, including a Smith and Wesson 30.06 rifle, a shotgun, and ammunition, were also missing. Later analysis by a technician at the Georgia Bureau of Investigation (“GBI“) Crime Lab showed that two fingerprints lifted from the hood of the Cavalier matched Hulett‘s fingerprints.
The evidence at the murder scene indicated that the Phelps brothers were approximately 20 yards apart and were cutting trees when Hulett, standing 65 to 70 yards away on a hill above them, fired at Arvine Phelps multiple times with a high-powered rifle. Apparently not realizing the source of his brother‘s injury, Larry Phelps put down his chainsaw where he was working and ran to his brother‘s aid. Blood on the knees of his jeans indicated that he kneeled beside his brother to assist him, using his own shirt as a makeshift bandage to control Arvine‘s bleeding. Meanwhile, Hulett proceeded down the hillside toward the brothers. At some point, Larry Phelps saw Hulett and ran toward his truck for safety, but Hulett shot him from above. Hulett then approached the victims, beat both of them about the head, and took their wallets before leaving in Larry Phelps’ truck. According to the medical examiner, Arvine Phelps was shot with a high-powered rifle in his left upper back, left arm, and left thigh. The medical examiner opined that, after Arvine Phelps was shot but while still alive, he suffered severe blunt force trauma to the front of his head while lying on a flat surface, causing “two complete fractures through the brain and the dura” and fractures to the back of the head on the occipital bone. She testified that the attack left Arvine Phelps’ brain exposed and “pulpified, meaning it was just smashed, [and] no longer held the contours [of] what a brain should look like.” The medical examiner testified that the single projectile that struck Larry
Later during the day of the murders, several of Hulett‘s acquaintances saw him at various locations in middle Georgia driving a truck bearing the license plate issued for Larry Phelps’ truck and matching its description and in possession of a Smith and Wesson 30.06 rifle and a large amount of cash. The GBI subsequently learned from one of Hulett‘s acquaintances that he had fled to Arizona. On August 2, 2002, authorities apprehended Hulett in a grocery store parking lot near Phoenix. At the time of his apprehension, Hulett was sitting in Larry Phelps’ truck, which displayed a stolen Georgia license plate. After Hulett‘s arrest, detectives discovered a handwritten note in a mileage log located in the glove compartment of Larry Phelps’ truck. The note began, “I, Donnie Hulett did do the murders at Mountain Top Boys Home,” and it was signed, “Donnie Hulett, aka, D. J.” A GBI handwriting examiner concluded that the note was written by Hulett. The handwriting on the note was also authenticated at trial as being that of Hulett by Hulett‘s maternal grandparents and half-sister. Several witnesses from the Mountain Top Boys Home identified Hulett from a photographic lineup as being the person that they saw near the Cavalier and driving Larry Phelps’ truck. The Smith and Wesson 30.06 rifle was never located, but a GBI firearms examiner testified that a spent shell casing found at the murder scene was fired from the same rifle as seven spent shell casings received from the rifle‘s owner, who testified that the spent shell casings had been fired from the Smith and Wesson 30.06 rifle before it was stolen. The State also introduced Hulett‘s prior felony conviction.
After reviewing the evidence in the light most favorable to the jury‘s verdicts, we conclude that it was sufficient to authorize a rational trier of fact to find Hulett guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Unified Appeal Procedure Rule IV (B) (2) (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence).
2. While the evidence was sufficient to support the jury‘s guilty verdicts, we have noted an error with respect to the merger of certain counts for judgment and sentencing. The jury returned guilty ver-
- Count 1: Malice murder of Arvine Phelps.
- Count 2: Malice murder of Larry Phelps.
- Count 3: Felony murder of Arvine Phelps (aggravated assault as the underlying felony).
- Count 4: Felony murder of Larry Phelps (aggravated assault as the underlying felony).
- Count 5: Aggravated assault (assault with a deadly weapon) of Arvine Phelps.
- Count 6: Aggravated assault (assault with a deadly weapon) of Larry Phelps.
- Count 7: Felony murder of Arvine Phelps (possession of a firearm by a convicted felon as the underlying felony).
- Count 8: Felony murder of Larry Phelps (possession of a firearm by a convicted felon as the underlying felony).
- Count 9: Possession of a firearm by a convicted felon.
- Count 10: Felony murder of Arvine Phelps (armed robbery as the underlying felony).
- Count 11: Felony murder of Larry Phelps (armed robbery as the underlying felony).
- Count 12: Armed robbery of Arvine Phelps.
- Count 13: Armed robbery of Larry Phelps.
For sentencing purposes, the trial court “merged” Counts 1, 3, 5, 7, 9, 10, and 12 and separately “merged” Counts 2, 4, 6, 8, 9,2 11, and 13. According to the trial transcript, the trial court, at the State‘s urging, determined that the felony murder counts, along with his convictions for the underlying felonies, “merged” with his malice murder counts as to each respective victim. However, the trial court was incorrect.
First, the trial court erred with respect to the relationship between the malice murder and felony murder counts regarding each of the victims. As this Court has explained, the State may seek guilty
Because the trial court failed to recognize that the felony murder counts were vacated as surplusage rather than “merged” into the malice murder counts, it also failed to recognize that “there [were] no felony murder count[s] into which the underlying felon[ies] c[ould] merge.” Malcolm, 263 Ga. at 373. As a result, the trial court improperly determined that certain of the non-murder counts “merged” as a matter of law into the felony murder counts when, instead, the trial court should have “treat[ed] the felony murder count[s] as merely surplusage and then . . . proceed[ed] to determine whether the underlying felon[ies] did or did not merge, as a matter of fact, into the malice murder count[s].” (Emphasis supplied.) Id.
As demonstrated by the discussion below, as a result of the trial court‘s error, “[Hulett] has yet to be sentenced for [three] of the crimes” of which he was validly convicted. State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989) (vacating the trial court‘s erroneous judgment merging eight of twelve armed robbery counts into four counts and remanding for resentencing on the eight remaining counts). Therefore, that portion of the trial court‘s judgment is illegal and void. See Williams v. State, 271 Ga. 686, 688 (1), n. 7 (523 SE2d 857) (1999) (noting that an illegal sentence may benefit a criminal defendant but that a judgment imposing a sentence that the law does not allow is still void and that the trial court may resentence the defendant at any time, citing Hartman v. State, 266 Ga. 613 (5) (469 SE2d 163) (1996) (holding that the trial court‘s judgment imposing a concurrent rather than a consecutive sentence as required by the governing statute was void and could be amended to conform to the law at any time)). The State, had it chosen to do so, could have
Where neither party properly raises and argues a merger issue, this Court has no duty “to scour the record searching for merger issues.” Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013). However, if we notice a merger issue in a direct appeal, as we have here, we regularly resolve that issue, “even where [it] was not raised in the trial court and is not enumerated as error on appeal.” Id. at 486 (2) (b) (explaining that a judgment of sentence is void where it imposes an illegal sentence, i.e., a sentence that the law does not allow, and that the illegality of such a judgment is not a waivable issue). The merger issues that this Court decides sua sponte typically result in vacated convictions and sentences and thus are favorable to the defendant. See id. (listing cases). Nevertheless, we agree with the Court of Appeals that “an accused who has been convicted of a crime has neither a vested right to nor a reasonable expectation of finality as to a pronounced sentence which is null and void.” Bryant v. State, 229 Ga. App. 534, 535 (1) (494 SE2d 353) (1997). See
(a) We begin with Counts 5 and 6, which charged Hulett with committing aggravated assault “with a deadly weapon, a rifle, by pointing said firearm at said victim . . . .” There was no evidence presented that authorized the jury to find that Hulett‘s aggravated assault of either victim by pointing the gun at them was not “followed almost immediately” by the fatal shooting of the victims or that there existed “a deliberate interval” between the two events. Solomon v. State, 293 Ga. 605, 606 (1) (748 SE2d 865) (2013). Therefore, the aggravated assaults merge as a matter of fact into the malice murder. See id.
(b) Count 9 charged Hulett with the offense of possession of a firearm by a convicted felon. “[P]ossession of a firearm by a convicted felon does not merge into a conviction for malice murder.” Chester v. State, 284 Ga. 162, 162 (1) (664 SE2d 220) (2008), overruled on other grounds by Williams v. State, 287 Ga. 192, 194 (695 SE2d 244) (2010), and Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009). Therefore, as no merger occurred, Hulett should have been sentenced on this count.
(c) Count 12 charged Hulett with the offense of armed robbery in that he did, “with the intent to commit theft, take a 2000 Ford F-150 XLT pickup, from the immediate presence of Arvine Phelps by the use of a 30.06 Smith and Wesson rifle, an offensive weapon . . . .” Count 13 charged Hulett with committing armed robbery in the same manner with respect to Larry Phelps. These counts do not merge into the malice murder counts “because malice murder has an element that must be proven (death of the victim) that armed robbery does not, and armed robbery has an element (taking of property) that malice murder does not.” Culpepper v. State, 289 Ga. 736, 739 (2) (b) (715 SE2d 155) (2011). Furthermore, the evidence was sufficient to show that both Phelps brothers were subjected to Hulett‘s exercise of actual force by the use of an offensive weapon so as to induce the relinquishment of another‘s property. See
(d) In sum, in addition to the sentences actually imposed by the trial court, Hulett also should have been sentenced for the possession of a firearm by a convicted felon count as provided in
Issues Regarding Representation by Counsel
3. On September 5, 2002, the trial court appointed Steve Moore as lead counsel and Larry Hill as co-counsel to represent Hulett. Hulett contends that the trial court committed reversible error by denying his request at an ex parte hearing on July 22, 2003, to remove Hill and replace him with new counsel. An indigent defendant in Georgia does not have an absolute right to the attorney of his own choosing; rather, the choice of appointed counsel is a matter of the trial court‘s discretion. See Davis v. State, 261 Ga. 221, 222 (403 SE2d 800) (1991). A trial court abuses its discretion in denying a defendant‘s request to appoint his preferred counsel only when the defendant‘s choice “is supported by objective considerations favoring the appointment of the preferred counsel, and there are no countervailing considerations of comparable weight.” Id.
In support of his request for Hill‘s dismissal and the appointment of new counsel, Hulett told the trial court that he had seen Hill “a total of four times,” felt that Hill “[wa]s not doing his job,” was concerned about what Hill would “do for [him] in court,” and could not trust Hill, as Hill had told him “several lies.” However, Hulett was unable to
In weighing the considerations that Hulett provided in support of his request, the trial court explained to him that the court considered both of his attorneys “excellent” lawyers, pointing out that they were trained and experienced in death penalty litigation and that Hulett did not “necessarily have to like [Hill]” or be “friends” with him in order to be effectively represented by him. The trial court also inquired as to whether Hulett had any complaints about lead counsel Moore, and Hulett indicated that he was pleased with Moore. After reviewing the time sheets that trial counsel had submitted for payment of attorney fees, the trial court also told Hulett that both Moore and Hill were “very actively representing [him] along with [his] investigator” and that, while the court was willing to schedule a hearing to hear any further complaints, there was no basis upon which to grant his request at that time and, therefore, it was denied.6
The trial court appropriately weighed the considerations favoring Hulett‘s request and properly concluded that they did not outweigh the countervailing considerations that Hill had completed a significant amount of work on the case and that removing him would delay the trial while a new death-qualified attorney was procured and allowed time to become familiar with the case. See Morris v. Slappy, 461 U. S. 1, 14 (IV) (103 SCt 1610, 75 LE2d 610) (1983) (rejecting “the novel idea that the Sixth Amendment guarantees an accused a ‘meaningful attorney-client relationship’ “); Smith v. State, 273 Ga. 356, 358 (2) (541 SE2d 362) (2001) (stating that the Sixth Amendment “guarantee[s] effective assistance of counsel, not . . . preferred counsel or counsel with whom a ‘meaningful relationship’ can be established”
4. One year after new lead counsel and new co-counsel were appointed to represent Hulett in his post-conviction proceedings and had filed Hulett‘s motion for new trial, Hulett filed a motion requesting the trial court to reappoint trial counsel Moore to represent him. He contends in this appeal that the trial court erred in denying his motion because he trusted Moore and had a good working relationship with him, which were the grounds for his motion in the trial court. However, Hulett also contends in this appeal that the trial court erred in denying his motion because Moore was familiar with the case, was in a better position to detect and argue the trial court‘s errors than new counsel, and had already conducted the relevant research, which would have allowed the case to proceed more quickly. However, an appellant is “limited on appeal to the grounds which he properly presented in the trial court.” Lundy v. State, 119 Ga. App. 585, 587 (1) (168 SE2d 199) (1969). In any event, we do not find compelling any of the factors that Hulett now alleges favored the reappointment of trial counsel to represent him in his motion for new trial.
Although Moore would have researched trial issues in his capacity as trial counsel, several issues raised in Hulett‘s motion for new trial and direct appeal concern post-conviction matters, and there is nothing in the record to indicate that Moore ever conducted any research specifically relevant to the motion for new trial, as he never represented Hulett in that proceeding. Hulett has also failed to show
Moreover, in denying Hulett‘s motion, the trial court found that Hulett‘s current counsel had announced their intention to raise issues of ineffective assistance of trial counsel in the motion for new trial. Hulett disputes this finding, but it is not clearly erroneous, as his post-conviction counsel stated that, if Moore were not reappointed, they would be litigating trial counsel‘s ineffectiveness in the motion for new trial.
As this Court has previously observed,
“[i]t is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment.” [Cit.] Over the years, this Court has developed a policy of affording initial review by the trial court of a claim of ineffective assistance of counsel . . . in the belief “the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.” [Cit.]
Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) (2007). See Massaro v. United States, 538 U. S. 500, 506 (123 SCt 1690, 155 LE2d 714) (2003) (noting that a judge hearing claims of ineffective assistance of counsel
5. Hulett contends that, in denying the motion for new trial, the trial court erred by rejecting his claim that his trial counsel rendered ineffective assistance in the sentencing phase in several respects. In order to prevail on this claim, Hulett must show that counsel‘s performance was deficient and that actual prejudice to his defense resulted. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Emphasis supplied.) Strickland, 466 U. S. at 687 (III). Therefore, in reviewing an ineffective assistance of counsel claim, “this Court need not analyze the deficient performance prong if the Court determines the prejudice prong has not been satisfied.” Fortson v. State, 280 Ga. 435, 436 (2) (a) (629 SE2d 798) (2006). Finally, “[a]n ineffective assistance of counsel claim is a mixed question of law and fact; we accept the trial court‘s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Barrett v. State, 292 Ga. 160, 167 (3) (733 SE2d 304) (2012).
(a) Hulett‘s Defense Team. The trial court described Moore and Hill, who were appointed to represent Hulett approximately a month after his arrest, as being “excellent” attorneys in possession of more knowledge in the area of death penalty litigation “than any other set of attorneys in th[e] circuit.” Both attorneys had been practicing law for approximately ten years and were highly experienced in criminal defense at the time of their representation of Hulett. Early in the case, trial counsel sought and obtained funds to retain the investigative services of Roy Cooper, a former law enforcement officer, because they were impressed with his investigative work in another death penalty case in which they had been involved.
(b) Trial Counsel‘s Presentation of Mitigating Evidence. Trial counsel testified at the new trial hearing that Hulett directed them to
At an ex parte hearing shortly before trial, Moore told the trial court that Hulett remained “very adamant” that he wanted to waive his right to a jury trial on sentencing if he were convicted, explaining that Hulett did not want a life or a life without parole sentence if he were convicted and felt that a jury was less likely than the trial court to give him a death sentence. Moore also explained that he and Hill had had several lengthy conversations discussing “the process” with Hulett, including “the role the jury has, the entire issue of mitigation, what mitigation is[,] . . . [and] how all that comes together.” Moore told the trial court that Hulett had been found competent to stand trial by the defense‘s forensic psychiatrist, and he also expressed his own belief that Hulett was intelligent and competent and that he understood the proceedings. Finally, Moore stated that, although “[t]his was not the attorney‘s idea,” they were “representing [Hulett] in his case, [and] this [wa]s his choice.” See Head v. Thomason, 276 Ga. 434, 439 (4) (578 SE2d 426) (2003) (“Whether to waive a jury trial is a strategic decision to be made by an accused after consultation with counsel.“). Hulett subsequently waived orally and in writing his right to a jury trial on the issue of sentence.
After the jury returned its verdict of guilty on all counts, the jurors were dismissed. Six days later, the trial court conducted a bench trial on sentencing for the murder convictions. At that time, trial counsel presented the testimony of Hulett‘s mother, his mother‘s fiancé, his father, his stepmother, and Dr. Keith Caruso, the forensic psychiatrist retained by the defense to examine Hulett. The testimony of Hulett‘s family members provided the trial court with an account of Hulett‘s background, and Dr. Caruso‘s testimony explained how Hulett‘s background had impacted his mental health and how the circumstances of Hulett‘s crimes were mitigated by certain factors in his life. Specifically, the witnesses’ testimony showed the following.
Hulett‘s parents had been married less than a year when he was born. His mother, who was only 16 years old and had already given
Hulett‘s grandparents passed away when he was approximately 12 years old, and he “[s]eemed to not care anymore” and began skipping school, getting expelled, and running away from home for days at a time. Hulett‘s father took him to a psychiatrist “several times,” and he was admitted to a psychiatric hospital at age 14 after attempting suicide by overdosing on his father‘s medication. Near that time, his father married a woman who had lived with his father “most” of Hulett‘s life. She considered Hulett‘s grandparents too permissive with Hulett, and she described Hulett as having “a love hate relationship” with his mother and as “not [being] okay” with the fact that he did not really know her. She also described her unsuccessful attempts to get help for Hulett, who had begun to inhale gasoline after his suicide attempt, and noted one counselor who showed Hulett how to “huff” gasoline “the right way.” Hulett committed various crimes and spent a great deal of time in the youth detention center before eventually landing in prison. When he was released from prison approximately a month before the murders, he moved in with his mother and her fiancé in Tifton. He and his
Dr. Keith Caruso testified that he conducted a three-and-a-half hour interview of Hulett at the Walker County jail on October 14, 2003, after reviewing Hulett‘s Southwestern State Hospital records, Central State Hospital records, Telfair County Hospital records, and Georgia Department of Corrections medical records. Dr. Caruso testified that “some past psychiatric histories” in those documents showed that Hulett had been hospitalized three times in psychiatric hospitals and once in a substance abuse treatment program and that he had attempted suicide “between four and six” times. Dr. Caruso explained that Hulett suffered from a number of mental health issues.
Specifically, Hulett had a history of attention deficit disorder as a child, and attempts at treatment had been unsuccessful. He also had a possible learning disability, and he had been placed in a school for behavioral problems. He was addicted to “various drugs,” including methamphetamine and marijuana, and Dr. Caruso testified that, “by [Hulett‘s] report[,] he was intoxicated on methamphetamine at the time of the offenses.” He had a history of depression as a teen and had also had depressive symptoms when Dr. Caruso examined him. Dr. Caruso opined that, while depressive symptoms are sometimes caused by drug and alcohol abuse, the fact that Hulett exhibited those symptoms in jail, where he supposedly was not using drugs or alcohol, suggested that he suffered from major depression. Hulett told Dr. Caruso that “he had been treated with medications commonly used for bi-polar disorder, . . . including Zyprexa, Zoloft and Depakote,” but Dr. Caruso testified that “[he] never got those records so [he] c[ould]n‘t say, for certain that [Hulett] ha[d] bi-polar disorder.” Nevertheless, Dr. Caruso explained that it was “certainly [a] possibility and [was] in his report and [that Hulett] certainly did look depressed at th[e] time that [he] saw him.” He also testified that, “due in part to [his] dependency problems leading to problems with the law and nonconforming behavior,” Hulett “ha[d] an anti-social personality disorder.” Likening a personality disorder to “mental retardation”8 of the personality, Dr. Caruso explained that persons who suffer from a personality disorder “cannot solve complex interpersonal problems” and tend to be unstable in their relationships with others, their emotional states, and their impulse control. Finally, Dr. Caruso noted that he
In explaining the extent to which Hulett‘s background and upbringing contributed to his mental health issues, Dr. Caruso testified that Hulett likely would have been prone to problems with substance abuse and impulsive behavior as a result of his “genetic loading,” regardless of his childhood environment and upbringing. However, he explained that Hulett‘s being raised in a very unstable environment, including being abandoned by his mother as a toddler, having very little relationship with his father in his early years, and being primarily raised by grandparents who abused alcohol and who died when he was young, created a “recurrent pattern of loss [and] abandonment.” According to Dr. Caruso, Hulett endured “problems with physical and emotional abuse in the home as well,” including his father‘s physical abuse and his own perception that his father was more loyal to his wife than he was to Hulett. Therefore, Dr. Caruso did not find it surprising that Hulett began “getting into trouble after his grandmother‘s death” and “essentially was institutionalized at that point forward,” spending a total of five years in psychiatric hospitals and youth detention facilities “[with] very little time at home.” He also noted that Hulett was arrested at age eighteen for auto theft, spent three years in prison, and could not locate his father upon his release just weeks before the murders, which again precipitated feelings of abandonment and stress in him.
Finally, Dr. Caruso opined that Hulett “need[ed] therapy for a number [of problems], including recurrent major depression and possibly bi-polar disorder,” and that there were several mitigating factors in Hulett‘s case, including the following: Hulett‘s youth and his self-reported intoxication at the time of the crimes, which would have impaired his capacity to appreciate the wrongfulness of his behavior; his depression “syndrome” and the fact that he was acting under extreme emotional disturbance due to the reawakening of earlier abandonment problems created by his parents’ repeated absence; his personality structure, which made it difficult for him to cope with these issues; his history of physical abuse, which modeled violence as problem-solving; and his lack of normal coping skills as a result of parental immaturity, neglect and substance abuse in the home, and the instability of the home itself.
On cross-examination, Dr. Caruso acknowledged that, “in some ways,” a person with a personality disorder does not get better. However, he opined that environment and treatment could have a positive effect. He explained that, if Hulett received proper treatment for his depression and possible bi-polar disorder, it would positively affect the impact of those conditions on his underlying personality
Trial counsel tendered Hulett‘s prison medical records, which included copies of his records from other hospitals.9 In closing argument, trial counsel summarized the evidence about Hulett‘s background and mental health issues and asked the trial court for mercy, as discussed in more detail in subdivision (c) (iii) below.
(c) Allegations of Ineffective Assistance. Hulett contends that trial counsel rendered ineffective assistance in various ways.
(i) Failure to Hire a Mitigation Specialist. Hulett contends that trial counsel were ineffective in failing to retain a mitigation specialist to assist in the investigation, preparation, and presentation of a mitigation case in the sentencing phase. In support of this claim, Hulett cites and relies on the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, which state in pertinent part, that “[t]he defense team should consist of no fewer than two [qualified] attorneys . . . , an investigator, and a mitigation specialist.” ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 4.1 (A) (1) (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 952 (2003).10
Moreover, the Supreme Court recently reiterated that the ABA Guidelines are “not [the] definition” of attorney reasonableness and should not be treated by lower courts as “inexorable commands with which all capital defense counsel ‘must fully comply’ ” or as constitutionally mandated rules that must govern a court‘s Strickland analysis, as the Federal Constitution requires only that counsel make objectively reasonable choices.11 Bobby v. Van Hook, 558 U. S. 4, 8-9 (II) (A) (130 SCt 13, 175 LE2d 255) (2009). Invoking a rigid requirement that trial counsel must employ a mitigation specialist in order to effectively represent a defendant in a capital case would effectively revoke the presumption that trial counsel‘s actions based upon strategic decisions are reasonable and would also “interfere with the ‘constitutionally protected independence of counsel’ at the heart of
Accordingly, to meet the first prong of Strickland, Hulett must show that trial counsel‘s decision not to retain a mitigation specialist was objectively unreasonable under the circumstances facing counsel at the time. See Turpin v. Lipham, 270 Ga. 208, 217 (3) (B) (4) (510 SE2d 32) (1998) (stating that the test for determining deficient performance in the sentencing phase is whether “some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial” (citation and punctuation omitted)). In making this showing, Hulett “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Citation omitted.) Strickland, 466 U. S. at 689.
At the new trial hearing, trial counsel testified that they investigated the case for potential mitigating evidence, despite Hulett‘s desire to die if he were convicted and his disinterest in having trial counsel conduct any investigation into mitigating evidence. See Barrett, 292 Ga. at 185 (finding that, while the wording of the relevant ABA Guideline had changed, this Court‘s prior holding 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,’ ” was still applicable to the defendant‘s case (quoting Perkins v. Hall, 288 Ga. 810, 815 (II) (A) (708 SE2d 335) (2011))). Trial counsel stated that they decided to assign the mitigation investigation to Cooper, their experienced investigator. Moore explained that trial counsel chose Cooper to conduct the mitigation investigation because they had previously had “issues” with mitigation specialists they had retained “doing their jobs” in another death penalty case. Moore also testified that he had found that the “fancy title” of mitigation specialist often made people “reluctant to talk,” particularly in areas outside Atlanta like those involved in Hulett‘s case. Moore testified that he considered Cooper capable of conducting the same investigation as a mitigation specialist without the “fancy title,” and he explained that, in another capital
Trial counsel‘s files were not admitted at the new trial hearing, and Hulett‘s post-conviction counsel did not ask trial counsel to list which potential mitigation witnesses were interviewed. Furthermore, during their testimony at the new trial hearing, both trial attorneys had difficulty recalling whether specific persons were interviewed as potential mitigation witnesses. However, trial counsel testified that their investigator “spent several days” in the area where Hulett grew up interviewing potential mitigation witnesses and that trial counsel eventually decided that having Hulett‘s parents testify would be the most effective way to present the facts of Hulett‘s background. See Whatley v. Terry, 284 Ga. 555, 566 (V) (A) (668 SE2d 651) (2008) (stating that it was “entirely reasonable” for trial counsel to delegate an investigation into potential witness testimony to his investigator and to follow up when it appeared prudent to do so). Moore explained that, in his view, having Hulett‘s mother and father testify “to all those [mitigating] things” regarding Hulett‘s upbringing, including that he “was constantly around drugs” and that his parents “did drugs in his presence,” was much more effective than “second hand information from someone [else].”
The defense team also obtained Hulett‘s medical records from Southwestern State Hospital, Central State Hospital, Telfair County Hospital, and the Georgia Department of Corrections. These records contained both medical and psychiatric information pertaining to Hulett. Trial counsel reviewed Hulett‘s juvenile court records, which they received from the State in discovery. Dr. Caruso‘s testimony indicates that he had reviewed at least a portion of Hulett‘s school records, and, in the absence of evidence to the contrary, it is reasonable to presume that trial counsel obtained those records and provided them to Dr. Caruso. See State v. Worsley, 293 Ga. 315, 324 (3) (745 SE2d 617) (2013) (stating that “a silent or ambiguous record is not sufficient to overcome the presumption” that counsel performed reasonably).
All things considered, we conclude that Hulett has not demonstrated that trial counsel acted unreasonably in strategically deciding to utilize Cooper to conduct the mitigation investigation rather than to hire a mitigation specialist or that trial counsel failed to pursue leads that a reasonably trained mitigation specialist would have pursued. Absent any showing of unreasonableness, we cannot say that trial counsel rendered deficient performance by assigning Cooper the task of performing a mitigation investigation rather than retaining a mitigation specialist.
(ii) Failure to Provide Dr. Caruso with Medical Records. Hulett also alleges that trial counsel were ineffective in failing to provide Dr. Caruso with “complete and pertinent” medical records,13 and he contends that Dr. Caruso could not have given “a full opinion as to [Hulett] and his mental health without the complete records.” However, Hulett did not identify what medical records were not provided to Dr. Caruso, did not tender any allegedly missing medical records into evidence at the new trial hearing, and did not present any evidence regarding Dr. Caruso‘s expected testimony had he been supplied with additional medical records. Therefore, as “[s]peculation is insufficient to satisfy the prejudice prong of Strickland,” Hulett has failed to carry his burden with respect to this claim. Cormier v. State, 277 Ga. 607, 608 (2) (a) (592 SE2d 841) (2004).
(iii) Deficiencies in Preparing and Presenting Mitigation Evidence. Finally, Hulett alleges that trial counsel were ineffective in several ways in presenting mitigating evidence in the sentencing phase of trial.
Hulett also alleges that trial counsel were ineffective in failing to interview and present as mitigation witnesses any persons from any schools that Hulett attended or any persons involved in Hulett‘s “long term alcohol and drug treatment.” However, Hulett presented no evidence showing what such interviews would have revealed and what such witnesses’ testimony would have been. Thus, he has failed to demonstrate a reasonable probability that the additional interviews or testimony would have altered the outcome of the trial in his favor. “[Hulett]‘s rank speculation that they would have made a difference is insufficient as a matter of law to establish Strickland prejudice.” Peterson v. State, 284 Ga. 275, 277 (663 SE2d 164) (2008). See Morgan, 275 Ga. at 227.
Failure to Prepare the Lay Witnesses. Hulett also alleges that trial counsel were ineffective in preparing the lay mitigation witnesses to testify. In support of this claim, he presented the testimony of his father and stepmother that the defense investigator spoke to them approximately a month before trial and that trial counsel did not speak to them until they came to Walker County for the trial.
Failure to Ask About Mercy. Hulett also alleges that trial counsel were ineffective in not asking the lay witnesses at trial their opinions about whether the trial court should extend mercy to him. At the new trial hearing, trial counsel could not recall why they did not ask any lay witnesses about mercy but pointed out that Hulett did not want mercy. On reviewing the lay witnesses’ testimony presented at the new trial hearing, we conclude that Hulett cannot show that he was prejudiced by trial counsel‘s failure to make this inquiry of the mitigation witnesses. Several of the reasons that the witnesses gave for being in favor of mercy were not particularly persuasive, because they were not specific to Hulett but, instead, were generic statements that “everyone” deserved to live or statements expressing a general opposition to the death penalty. One witness pointedly avoided the question as to whether it would benefit his life for Hulett to receive mercy and subsequently testified that he did not communicate with Hulett, although he was “sure” that Hulett‘s father did. We are not persuaded that a reasonable sentencer would have found such testimony compelling. Furthermore, inquiring about mercy at the new trial hearing led the district attorney to cross-examine Hulett‘s stepmother regarding whether she was aware of any remorse on Hulett‘s part for committing the murders, and she admitted that, to her knowledge, Hulett had never expressed remorse for the victims’ deaths, testimony that a reasonable sentencer was more likely to find aggravating than mitigating.
(iv) Combined Effect of Trial Counsel‘s Alleged Deficiencies. We conclude that the combined effects of these several alleged attorney errors are insufficient to establish the prejudice required by Strickland in order to establish ineffective assistance of trial counsel. See Holsey, 281 Ga. at 811-812, n. 1 (holding that the combined effect of trial counsel‘s deficiencies should be considered). With respect to many of Hulett‘s allegations, we have affirmed the trial court‘s findings and conclusions that Hulett failed to carry the burden of establishing that trial counsel‘s performance was constitutionally deficient. Even assuming trial counsel error with respect to the other grounds for Hulett‘s assertion of ineffective assistance of counsel, as we have for the sake of analysis, and considering the mitigating evidence that was presented at his new trial hearing along with the mitigating evidence presented at trial, we still conclude that the new mitigating evidence would not in reasonable probability have resulted in a different sentencing verdict for Hulett for the commission of the
Post-Trial Delay of Execution
6. Hulett contends that his eventual execution after having experienced a delay of approximately nine years between his trial and direct appeal would violate the
Moreover, while recognizing that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case,” United States v. Carver, 260 U. S. 482, 490 (43 SCt 181, 67 LE 361) (1923), we note that the Supreme Court of the United States has both recently and repeatedly denied petitions for writs of certiorari involving similar
7. The sentencing phase evidence showed the following. At age 14, Hulett burglarized a hardware store and stole several guns after running away from a youth rehabilitation home. In 2001, while serving a prison sentence based on his conviction for felony theft by taking of an automobile, he escaped from a state prison facility in a state vehicle, abandoned that vehicle, stole another vehicle from a dealership, and was attempting to steal a third vehicle when he was apprehended. He was released from prison on June 17, 2002, after signing a form acknowledging that he was required to report to the Gordon County Probation Office in Calhoun after his release. He then moved in with his mother and her fiancé in Tifton. On July 9, 2002, his mother‘s fiancé took him to the bus station, where he purchased Hulett a ticket and “put him on a bus” to Calhoun so that he could report to his probation officer. However, Hulett never reported to his probation officer, and, on July 17, 2002, his probation officer applied for a warrant for his arrest. Approximately three days later and roughly thirty-six hours before the murders, he disappeared with the Chevrolet Cavalier that he stole from a new acquaintance. The State also presented evidence that Hulett had committed numerous infractions while incarcerated awaiting trial, including breaking two cell door windows, cursing at guards and refusing to comply with their commands, and physically attacking another inmate. See Gissendaner v. State, 272 Ga. 704, 717 (19) (a) (532 SE2d 677) (2000) (stating that
(a) The trial court sentenced Hulett to death for Larry Phelps’ murder based on the following statutory aggravating circumstances, which it found to exist beyond a reasonable doubt: the murder was committed while Hulett was engaged in the commission of other capital felonies, to wit: the murder and the armed robbery of Arvine Phelps; the murder was committed for the purpose of receiving money or any other thing of monetary value; and the murder was committed for the purpose of avoiding Hulett‘s lawful arrest. See
This Court is required to review each statutory aggravating circumstance and to determine if it is supported by the evidence. See
our cases to date have upheld the (b) (10) circumstance only where the evidence supported a finding that the defendant was, at the time of the murder, in immediate peril of being lawfully arrested, placed in custody, or confined in a place of lawful confinement by a law enforcement officer.
(Emphasis supplied.) Humphreys v. State, 287 Ga. 63, 84 (10) (694 SE2d 316) (2010) (listing cases). While a defendant‘s motive can be more readily inferred from the evidence in such cases, we have explained that “th[is] Code section is not limited to that situation.” Id.
The evidence presented at Hulett‘s trial showed the following: at the time of the murders, Hulett was a convicted felon and had failed to report to his probation officer, despite having been put on a bus to Calhoun for that purpose, having been in the area for well over a week, and having been within three miles of the probation office on multiple occasions; after having attempted to contact Hulett multiple times, his probation officer had applied for a warrant for his arrest for his failure to report; and, after stealing two guns, ammunition, and the Cavalier, Hulett left Calhoun on the day before the murders. A rational trier of fact was authorized to conclude from this evidence that Hulett had no intention of complying with his terms of probation. The evidence further showed that Hulett was left stranded overnight on a rural roadway when the stolen Cavalier became disabled and that, after shooting the Phelps brothers, he took their truck, left the area immediately, and subsequently left Georgia. Based on this evidence, the State contended at trial that Hulett, who feared that he would be discovered sitting on the side of the road in a stolen car, took the stolen guns and spent the night off the roadway and that, after hearing the Phelps brothers’ chainsaws the following morning, discovered the brothers “busy cutting trees” and their truck parked nearby. The State then argued that Hulett climbed “up the mountain” and shot the two men below so that he could take their truck, leave the area, and thus avoid his arrest for violating probation and stealing the Cavalier. We conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Hulett‘s motive in murdering the Phelps brothers was to avoid his own lawful arrest. Compare Humphreys, 287 Ga. at 83-84 (finding the evidence insufficient to support the (b) (10) circumstance where it showed only that the defendant murdered the victims after robbing them and the State argued that the defendant‘s purpose for the murders was the prevention of his apprehension for the robberies).
(c) Considering both the murders in this case and Hulett as a defendant, we find that the death sentences imposed were not disproportionate punishment within the meaning of Georgia law. See
Judgment of conviction affirmed in part and vacated in part, death sentences affirmed, and case remanded for resentencing. All the Justices concur.
APPENDIX.
Tate v. State, 287 Ga. 364 (695 SE2d 591) (2010); Humphreys v. State, 287 Ga. 63 (694 SE2d 316) (2010); Stinski v. State, 286 Ga. 839 (691 SE2d 854) (2010); O‘Kelley v. State, 284 Ga. 758 (670 SE2d 388) (2008); Rivera v. State, 282 Ga. 355 (647 SE2d 70) (2007); Williams v. State, 281 Ga. 87 (635 SE2d 146) (2006); Lewis v. State, 279 Ga. 756 (620 SE2d 778) (2005); Riley v. State, 278 Ga. 677 (604 SE2d 488) (2004); Franks v. State, 278 Ga. 246 (599 SE2d 134) (2004); Sealey v. State, 277 Ga. 617 (593 SE2d 335) (2004); Raheem v. State, 275 Ga. 87 (560 SE2d 680) (2002), disapproved on unrelated grounds by Patel v. State, 282 Ga. 412, 413, n. 2 (651 SE2d 55) (2007); Lance v. State, 275 Ga. 11 (560 SE2d 663) (2002); Lucas v. State, 274 Ga. 640 (555 SE2d 440) (2001); Rhode v. State, 274 Ga. 377 (552 SE2d 855) (2001); Colwell v. State, 273 Ga. 634 (544 SE2d 120) (2001); Heidler v. State, 273 Ga. 54 (537 SE2d 44) (2000); Morrow v. State, 272 Ga. 691 (532 SE2d 78) (2000); Pace v. State, 271 Ga. 829 (524 SE2d 490) (1999); Cook v. State, 270 Ga. 820 (514 SE2d 657) (1999); De Young v. State, 268 Ga. 780 (493 SE2d 157) (1997); Raulerson v. State, 268 Ga. 623 (491 SE2d 791) (1997); Bishop v. State, 268 Ga. 286 (486 SE2d 887) (1997); McMichen v. State, 265 Ga. 598 (458 SE2d 833) (1995).
Jennifer E. Hildebrand, Robert L. Stultz, for appellant.
Herbert E. Franklin, District Attorney, Christopher A. Arnt, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Sabrina D. Graham, Dana E. Weinberger, Assistant Attorneys General, for appellee.
S14Y0625. IN THE MATTER OF WILLIAM CHARLES LEA.
(764 SE2d 859)
PER CURIAM.
This disciplinary matter is before the Court on the Report and Recommendation of the special master, John M. Hyatt, who recommends that Respondent William Charles Lea (State Bar No. 442006) be suspended for a period of six months, with conditions on reinstatement, for his violations of Rules 1.3, 1.4, 1.5, 1.16 (d), and 3.2 of the Georgia Rules of Professional Conduct, see Bar Rule 4-102 (d). A violation of Rule 1.3 may be punished by disbarment and the maximum punishment for the remainder of the rules is a public reprimand.
The State Bar filed a Formal Complaint against Lea encompassing two separate client complaints. Lea, who was admitted to the State Bar in 2001, acknowledged service on November 20, 2012, but since he failed to timely answer the complaint the special master found him in default. Accordingly, the facts alleged and violations charged in the complaint are deemed admitted, see Bar Rule 4-212 (a). As deemed admitted, the facts show that, with regard to State Disciplinary Board (“SDB“) Docket No. 6336, Lea was retained in October 2010 to give a client an opinion on the merits of a possible habeas corpus proceeding. After Lea determined that it would be meritorious, the client‘s family paid Lea $7,000 as fees (plus $150 in filing costs) to proceed with the matter, but Lea never filed the petition, and since March 2011 has not visited or corresponded with his client or returned the phone calls from the client‘s family. In October 2011 the client discharged Lea and hired new counsel, but Lea has not returned any of the fees paid by the client, little if any of which he earned.
The record further shows that with regard to SDB Docket No. 6337, Lea was retained in July 2010 to represent a client in a criminal case and was paid $10,000. Lea met with the client for about an hour and promised to return in a week. But Lea did not keep that promise,