*3 tlе girl’s head had kicked and been RONEY, JOHNSON, Before PAY and stomped. Swabs taken from the child’s Judges. Circuit vaginal and abdomen area indicated the FAY, Judge: presence sperm. Circuit of Messer, Jr. following day, police, James was convicted of mur- along The local kidnapping bodily injury der and with agents, with state and federal arrested the Messer, Superior County, Georgia uncle, of Polk charged Court victim’s James 8, 1980, February on and was sentenced to him with crime. Messer was subse- charges. 23, quently death on grand jury both On November indicted of Polk 23, 1982, 1. petitioner peti- Messer’s conviction and sentence were af- filed On November corpus, Georgia along Supreme tion for writ of habeas with firmed on March an Court execution, 3, 1981, application stay for before the timely rehearing motion and a for was United States for the 18, District Court Northern petition denied on March 1981. Messer’s for 23, 1982, Georgia. District of On November writ of certiorari before the United States Su- granted. stay evidentiary hearing was An was 5, preme Court denied October 1981. held, 1984, 4, stay April then on Petitioner thereafter filed a of habeas writ 8,May lifted. Execution for was reset 1984. corpus Superior County, in the Court of Butts 30, 1984, court, April On district in federal Georgia requested denied relief was appeal, request filed a Messer notice of for 1982, 23, 20, February April 1982. On the Geor- probable appeal certificate of cause to a motion gia Supreme application Court refused Messer’s execution, stay request proceed and a cause, 4, 1982, probable for and on October pauperis. grant- stay forma A of execution was Supreme United States Court denied Messer’s request pau- proceed was the in forma ed as peris. petition Superior for writ certiorari. The request probable for certificate of County Court an of Polk thereafter entered or- 31, 1984, appeal May On cause was denied. setting der for Messer's execution date Novem- application proba- petitioner’s certificate of for 30, ber granted by ble court. cause this lying Rhonda’s near during the term coat some bushes November County injury police bodily with and for railroad tracks. She notified the kidnapping juryA immediately of Rhonda Tanner. trial and a search of the area was the murder against time, guilty By agents in a verdict undertaken. resulted given charges. joined Messer was the FBI and the GBI had in the investi- on both murder on both the and the penalty gation disappearance. Later death Rhonda’s charge. bodily injury kidnapping afternoon, body Rhonda’s was found in a area the railroad secluded wooded near paint vivid facts adduced at books, pants, panties tracks. Her transpired on picture of the events which nearby. were discovered day. her Rhonda Tanner left that fateful morning early of Feb- parents’ Throughout day, home on the law enforcement of- ruary bus which conducting boarded ficials had been interviews with College Elementary Wood, took her Street various witnesses. Retha an em- *4 approximately At School in Cedartown. at ployee Company, Barber’s Service told afternoon, p.m. that Messer arrived at police 2:30 the morning that on of Rhonda’s principal, school told the grade disappearance, the and a man came into the store Brabson, father that Rhonda’s had inquired light sup- Sam and and about fixtures in an at work and injured Wood, accident plies. working been who was alone Mrs. up. pick was there to Rhonda store, police that he that at the told the man acted her summoned Rhonda from class- strangely kept insisting Brabson rather she and that girl arrived When little at go get sup- room. back to the storeroom to office, principal’s quickly she ran to her he plies needed. She refused and then and his hand. uncle’s side caressed Brab- called her the store. husband come to son, having suspect any- no reason to man immediately The left the store but awry, the child to leave thing was allowed thinking returned Mrs. Wood later Messer. with Mr. from appeared was alone. When Wood store, stranger again the back get Rhonda off the did not bus When premises. approximately left the At 2:30 afternoon, her mother became worried p.m., Mrs. Wood saw this same individual elementary to the school to look and drove drive the store and look in the window. Mr. Mrs. for her. Brabson told Tanner According Wood, heading in Mrs. he transpired what had earlier and described College Elementary the direction of Street picked up. who the individual Rhonda Mrs. School. immediately her Tanner contacted mother- police in turn and in-law who notified night, police That Mrs. Wood called called Messer’s Messer’s then wife. wife reported happened. and what had Subse- why that she no reason stated knew of her quently, Mr. Mrs. identified both and Wоod would take Rhonda from school. husband photograph of Messer as the same man day had in the store on the who been evening, Messer arrived home that When impor- disappeared. Rhonda Even more sister-in-law, Dunn, his Pamela wife tantly, principal and two other witness- waiting for him. Ms. Dunn testified were es from Rhonda’s school had also selected came cursing that Messer in the door being as the man photograph Messer’s complaining having spent about the entire These pick up. Rhonda whom saw the doctor’s He then day at office. went day in witnesses further stated that on the he immedi- straight to bathroom where cap, question, wearing a red Messer was changed ately clothes. In reference to jacket. jeans and a tan blue disappearance, Ms. Dunn asked Rhonda’s Rhonda, wrong could Messer what be 14, 1979, the evening February On replied, he know to which “I don’t disappearance, investi- day after Rhonda’s 243). (T. damn.” give don’t at Mes- gators question to a residence to went accompany following day, driving agreed ser. He them Dunn was Ms. he volun- spotted Mill Police Station where Old Road when she Cedartown down tarily gave signed presented against a statement waiv- evidence er permitting a search of his house. Mes- overwhelming. at trial was Mr. and Mrs. ser was not under arrest at this time. picked picture Wood had both Messer’s out photo lineup being loitering man Rhonda, killing Initially Messer denied Company around Barber’s Service on the but when confronted with the fact day disappeared. Rhonda Mrs. Wood him, witnesses had identified he broke again identified Messer court and related crying down and confessed to the murder. seeing driving defendant the di- February Messer stated rection College Elementary Street pick up employee he tried to a female just School before minutes Rhonda was Company. attempt Barber’s Service That addition, picked up. the car which Mrs. having failed, College he drove to Street tag Wood the license described and number Elementary get School Rhonda. Messer which she wrote were unquestionably down he picked up claimed that when Rhonda that of the defendant. school, her, planned to molest but not to kill her. confessed telling He also photo also selected from a principal school’s that Rhonda’s father had lineup by Brabson, Mr. princi- school’s injured job been on the order to secure pal, secretary, Hackney. Jane Rhonda’s release. Lay, Priscilla mother of one of Rhon- classmates, da’s
Messer then left with Rhonda and also when drove picked up down Old Mill Road to a secluded defendant Rhonda area near and likewise *5 stopped the railroad tracks. Messer picture selected Messer’s out of photo a car and them lineup. trial, Brabson, the two of walked into the Hackney At and together. began woods Messer then Lay pointed to mo- all to Messer and identified resisted, lest she Rhonda. When being Messer him they as the individual whom saw investigators told he stomped that beat and take Rhonda Tanner from the College her head fists and with his shoes. Messer Street Elementary February School on he further stated that stabbed Rhonda re- According witnesses, 1979. these to Rhon- peatedly and her slashed stomach. Al- hand, da it, took the defendant’s stroked victim, though having raped he denies his and pranced gleefully about while she ex- investigators Messer did inform that he plained that she not to have take the masturbated at the scene. Messer conclud- day bus that her because uncle was there ed spent approximately thirty that he homе; min- to take her utes in leaving. the woods before Follow- The evidence revealed that Messer was confession, ing this Messer was informed spotted again approximately one hour later by investigators that he was under emerged as he alone from the woods near arrest. Sides, Old Mill Road. a Robin resident of nearby Rockmart, Georgia, driving II. THE TRIAL her pickup truck Old Mill down Road at approximately p.m. on February 3:35 indictment, Following Attorney Messer’s way pick up She was on the to a appointed John Sawhill as counsel for tracks, friend. she neared the railroad As the accused. was the third attor yards she noticed a parked car about 50 ney appointed court. by the The first two from the road. attorneys side of the Sides testified asked be relieved to and cited anyone that she community pressure as did not see inside or near the reason. On 9, 1979, Messer the car did not plea November entered his but that this strike her as guilty.2 being of not too unusual. indictment, special private psychiatric
2. After his ant's denied, entered a motion for a exam was plea insanity. Two state doctors examined special plea insanity after which the criminally responsible Messer аnd found him was withdrawn. mentally competent and to stand trial. Defend- friend, up After her turned fact that several had selected his picking Sides witnesses lineup, again proceeded picture photo out a Messer fell her truck around and agreed to crying out of chair tell girls As the down Old Mill Road. two investigators car, everything. they approached parked noticed emerging from the woods near the man trial, Agent Leary At FBI Robert related stopped railroad tracks. Sides at for the first-hand Messer’s own ac- tracks make sure that a train to According Leary, count of the murder. to coming. testified: us Sides scared “[H]e trying pick up to Messer admitted female looked, way both. don’t know ... he employee Supply Company. Barber’s leave,’ ‘you’d and ... said better Lisa taking He likewise confessed to Rhonda her kind of car it is and told ... ‘see what pretense from the school that under the her ” (T. 232-233). get tag number.' had injured. father been Messer then told get girls The two exact were unable Leary Road, Mill he drove Old number, they did notice it was stopped car, they and told Rhonda that plate. girls later County Polk When go into find had to a rock to woods learned a murder victim had been According fix the car’s battery. Leary, they vicinity, immediately found in that began Messer then he explained how experience police, to the related their who fondle Rhonda and remove her clothes. begun suspect now had Messer. Rhonda crying, When started Messer hit police girls parked drove the fists, knocking her in the face with his her they positively automobile and identified ground, stomped he and then they earlier on Mill one had seen Old Leary her kicked head. Messer told Moreover, girls’ description Road. kept crying, Rhonda so he stabbed her re- emerging the man saw from whom peatedly and her then slashed abdomen descrip- woods was consistent pocket Finally, with his knife. Messer told provided by tions other witnesses. agent pants that he removed his body. masturbated over the child’s lifeless scientific physical and evidence presented equally at trial was overwhelm- Agent Leary told the asked *6 ing. knowingly voluntarily and Messer raped his niece Messer whether he had and consented to a search of his home. The Messer that he didn’t responded be- investigators several of seized articles (T. he hurt her. cause didn’t want to at clothing the descriptions which matched 371). Leary exрlained to the also given footprint A by witnesses. found at questions had asked he Messer several the murder was to a scene of matched story. ques- These testing aimed at his pair of bloodstained shoes found in Mes- tions involved critical details which pair ser’s found on home. Bloodstains know, according murderer would and and jeans typed Messer’s were found to be every question Leary, Messer answered victim, type the same as the Rhonda correctly. type Tanner. Messer has B blood. confession, In the course of this Messer bloodstains found on Messer’s shoes were produced pocket knife with which he analyzed quantity also insuffi- was Expert murdered testimo- Rhonda Tanner. typing. cient for ny that the victim’s elicited trial revealed Experts also testified that hairs on found with stab wounds were consistent Messer’s jeans characteristically sim- addition, were stains were found knife. blood samples knife, ilar to removed from the victim’s detected quantity on the but the was Similarly, head. hairs found at the murder typed. too small be with taken scene were consistent hairs investigators also Messer showed the from head. the defendant’s he said he on his sus- bruise foot which in incriminating piece kicking most Rhonda the head. Of course the tained while photograph in the state’s arsenal is con- A of the bruise admitted evidence at trial. fession itself. When confronted with the
According Agent Leary,
rock.
he
also
After
left the railroad track he
map
drew a detailed
of the crime scene and
went down into the
a short dis-
woods
every
it to
his
then used
outline
move.
got
point
tance
when
in
and
he
depicted
map accurately
This
the area
woods he told Rhonda that he wanted to
and,
body
where Rhonda’s
was found
ac-
play
game
her,
with
he said at that
cording
Leary,
explanations
were
point
touching her,
he started
he said
already
with the evidence
consistent
com-
legs”
“down there in
her
between
and
piled.
thereafter____
now, during this time
interviewing
I’m
him
crying
he was
and
Finally, was revealed
trial that Mes-
had
his head
this
hands and some
investigators
[sic]
ser had also told the
aof
just disjointed,
the statement was
pond
he had
where
washed
blood from
thing
next
he talked about was that she
his knife
discarded his hat. Officers
laying
ground
on
crying.
pond
went to the
and retrieved the hat
stop
He said to
crying
her from
he
described Messer and the witnesses who
stabbed her
the chest several
day
question.
him on the
times
Expеrt
saw
with
knife.
he
He said
couldn’t re-
testimony revealed that hairs found on the
cap
characteristically
member
exact
were
similar to
number
times he
Mes-
ser’s.
had stabbed her.
I
him
asked
did he cut
anywhere
her
other
than
the chest
put, if
Simply
open
ever there was an
slashing
and he said he remembered
her
Eyewitness
and shut
this is it.
testi-
with
abdomen
his knife.
asked him if
mony
every
outlined Messer’s
move. The
attempted
he had or
to have sexual inter-
physical evidence is uncontroverted and
course with her and
said no
that he
overwhelming. As
far as
state is con-
hadn’t and he
try
said that he didn’t
cerned, Messer’s
simply
confession was
ic-
have intercourse
her
because he
ing
cake.
on the
didn’t
want to hurt her.
asked him if
(At
point
he took off his clothes ...
this
III. REFUSAL TO DECLARE MIS-
disrupted by
time
Court was
TRIAL
someone in the
which
audience
was later
trial,
During
Agent
Leary
FBI
relat-
Tanner,
identified Mr.
the father of
ed for the
Messer’s own first-hand
Tanner,
Rhonda
raging
which was
gruesome
account of the
murder. At one
Defendant,
lunging forward
towards
point,
agent’s testimony
interrupt-
and at
time
Trooper along
a State
Wayne Tanner,
ed
when
father of the
Tanner).
with other officers
Mr.
seized
victim,
lunged toward the defendant
MR.
pay!
TANNER: "... He ... He’ll
screaming
shouting.
Messеr’s first ar-
You’re
you’ll pay.
liable!
...
You’ll
gument
the trial court erred in not
*7
pay.
you
You’re liable.
What
Oh!
declaring a mistrial as a result of this inci-
you
you’re going
get
think
oh
...
...
disagree.
dent. We
you____
it ...
following
excerpt from the trial tran-
THE
jury go
Let
COURT:
the
out to the
script depicts the outburst:
jury room.
AGENT LEARY:
said
they
He
while
(T.
371-72).3
at
walking
were
down the railroad embank-
willingly accompanied
jury
removed,
ment Rhonda
him
After the
Sawhill im-
thinking that he
just looking
mediately
for a
moved for a
The mo-
mistrial.
outburst,
Following
judge
why
3.
the
the trial
allowed
it was that he hadn’t had sexual inter-
Sawhill to recite for the record what he
response
had
the
course with
deceased and the
regard
with,
observed in
to the incident:
Agent Leary
up
that
then followed
him,
Honor,
given
MR. SAWHILL:
the defendant had
was to the
If I'm correct Your
effect
Agent,
Agent
Special
Leary,
as
believe
that the defendant did not want to
was in
hurt her.
Tanner,
going through
testimony concerning
particular point
fact
his
At that
Mr.
the de-
Messer____
father,
interrogation
sitting
his
of Mr.
He testi-
ceased’s
on the front row most
fied that
asked the
the
defendant
that time
nearest the
box did in
manner of a
of
and after curative instruc-
Our review
the record indicates
tion
denied
the trial court
the
twice instructed
Saw-
given,
the trial resumed.
were
tions
disregard
outburst;
the
jury to
once imme
motion
times
several
hill
renewed
diately
outburst,
again
after
the
and then
trial
each
the course
the
throughout
during
phase.4
the
Both times
again denied.
time it was
inquired
the court
as
the out
to whether
any
in
way
jurors
burst would
the
affect
judge
is in the
Because
the
judgment,
jury gave
and both times the
no
prejudicial ef
to evaluate the
position
best
(T.
indication that
would.
at 379 and
outburst,
spectator’s
fect
the decision
trial,
500).
during
hearing
After
on
grant a
mistrial
lies within
whether
trial,
the defendant’s motion
new
each
for a
e.g.,
See
United
discretion.
sound
juror
individual
was called as a witness and
Brooks,
(11th
States v.
way
in
each testified
outburst
no
denied,
Cir.1982), cert.
457 U.S.
(R.
judgment.
their
affected
Vol. 3 at 49-
(1982).
Appellant argues question the of test of that for ineffective assistance counsel. test, jurors applying In that court has by whether noted: the were influenced the outburst is irrelevant. Messer cites Col- Washington held that a Court State, 803, 42 lier v. 115 Ga. S.E. 226 claim of of counsel ineffective assistance (1905), State, 32, 205 52 First, and Glenn v. Ga. components. a two defendant (1949), proposition S.E.2d 319 for the that performance must show that counsel’s the test is the outburst was by identifying whether calcu- specific was deficient acts conduct, lated to influence the their delibera- and omissions. Counsel’s agree appellant tions. While we that as of of viewed the time the actions applicable Georgia this is the under taken, test must have fallen outside of a wide law, simply Wayne we do not believe that range professional of reasonable assist- any way Tanner’s actions were in right motivat- assessing ance. In a to counsel’s jury. ed a desire to the claim, influence Clear- attorney’s strongly an actions are outburst, was, ly this unfortunate as it presumed to have fallen within that merely resulted from a bereaved range, father and a court must examine coun- being during unable contain his emotions sel’s the judicial conduct without use of particularly segment a lurid of the testimo- hindsight.
ny. Second, the defendant must show that performance the deficient preju- agree judge, We with the trial that the The Washington dicial. Court followed outburst not calculated to influence requires a standard that a showing “that and that the curative instructions probability that, there is reasonable given by court were sufficient to coun- unprofessional errors, for counsel’s any prejudice might ter arguably which proceeding results would have have As jurors ensued. themselves probability been different. A reasonable indicated, way repeatedly they were in no probability is a sufficient undermine influenced Accordingly, incident. (citation confidence the outcome.” we part find no abuse of discretion omitted)____ A defеndant’s failure to of the trial court in granting not defend- performance either establish or the ant’s for a motion mistrial. prejudice component results in denial his Sixth Amendment claim. IV. INEFFECTIVE ASSISTANCE OF Strickland, King v. F.2d 1463 COUNSEL (11th Cir.1984). (1) Argument Sawhill has stated that his strate position his attorney, gy low-key approach, utilize was to main Sawhill, John throughout was ineffective credibility jury, tain his with the and then trial and he conceded attempt during humanize Messer separated during himself from his client sentencing phase in hopes closing arguments. addition, In Mes- spare Washington, would his life. ser claims that Sawhill failed “human- Supreme court noted there are count closing arguments ize” him ways less to defend individual an accused sentencing phase and that he failed to “[ejven a crime the best crimi mitigating all available evidence. attorneys nal defense defend performance, argues Messer, This deprived particular way.” client in the same Wash him constitutionally of his guaranteed right — at -, ington, U.S. 104 S.Ct. at to effective assistance of counsel. L.Ed.2d 695. Under standard set claiming Washington, forth in a defendant (2) Applicable Test assistance ineffective of counsel must over — Washington, strong v. presumption Strickland come a that his U.S. attor -, (1984), ney’s might S.Ct. L.Ed.2d 674 actions be considered sound *9 at---, Supreme strategy. two-part Court established a trial Id. 104 S.Ct.
1089 as further 2066-67, L.Ed.2d at 694-95. The ment or a case-in-chief proof of counsel’s ineffectiveness. overall cautioned that in review has further Court of a criminal defense ing performance quoted We believe statistics every must made to attorney, effort be paint Messer do not a fair or accurate distorting effects of hind “eliminate the picture representation of the which he re at -, Id. sight.” S.Ct. True, object any ceived. Sawhill did not to easy for a L.Ed.2d at 694. is all too “[I]t fifty-three physical of the state’s items of court, it examining counsel’s defense after statistic, however, in evidence. This crude unsuccessful, that a proved to conclude way no reflects the numerous occasions on particular act or omission of counsel was which voir Sawhill examined witnesses on Id.5 attempt dire in an to find some weakness unreasonable.” legal imperfection just
or
on which to base
none,
objection. Finding
such an
Phase
(3)
Innocence/Guilt
thereafter allowed the evidence to come in
support
for his
As
Com
challenge.
before the
without
throughout
ineffective
the tri-
counsel was
pare
Kemp,
Solomon v.
al, Messer sets forth a
of statisti-
number
(11th Cir.1984) (failure
object
to
to evidence
First,
cal
he notes that
observations.
already ruled admissible does not render
witnesses,
twenty-three
the state’s
ineffective).
find,
counsel
We do not
nine
cross-examined. Messer further
were
to,
petitioner
has not directed us
object
complains that Sawhill failed to
to
single specific instance where Sawhill’s
fifty-three
state’s
items of
even one of the
object
physical
failure to
to
evidence
implies
physical evidence. Petitioner
way significantly prejudiced
some
defend
themselves,
statistics,
in and of
are
these
general
A
ant’s case.
observation that tri
prove
sufficient
to
ineffective assistance
object
physical
al counsel failed to
to
evi
addition,
prove
counsel.
Messer asserts Saw-
not in
dence does
itself
that counsel
opening argu-
prong
not to make an
ineffective. The second
hill’s decision
closing argument
guilt phase,
you
every
you
you go
5. Sawhill’s
at the
each and
one of
when
entirety,
you
you
in its
is as follows:
into that
room
take with
evidence that’s been received and render a
BY—MR. SAWHILL:
Honor,
gentlemen
speaks
Your
ladies and
verdict. A verdict that
the truth.
I
jury,
ya’ll
questions
begin
any-
I asked
a lot of
to
don’t think in a situation like this there’s
you
bringing
with about what
were
thing
say except
say
that I can
thank God
way
knowledge,
court room in the
whether
ya’ll
going
is over. I don’t know what
are
you
coming
that would affect
in and each
brought
happen.
to believe
this situation to
I
every
you
one of
said it wouldn’t and to
have been with this matter nine months and I
recognized
respectfully
that and I
each and
certainly
suggest
get
you why
can’t
or I’d
your
every
responses.
one of
you,
on the stand and tell
I can’t do that. At
As to what the evidence has been I don’t
suggest
every
to each and
one
the moment
is,
contend what the evidence
I haven't said
do,
you
your
you
what
should
this is
com-
anything about it. I would be no less honest
laying
every-
munity
your
court and
aside
every
you
with each and
one of
if I tried to
thing except your
experi-
common sense and
you
something
tell
the evidence said
other
ence,
say
probably
which I dare
there’s
five
than what Mr. Sammons indicates occurred
years
hundred
worth of it in this
box
day
going
I’m
Each and
on that
so
to.
now,
right
say you’ve got
I dare
five hundred
every
you persons
one of
indicated to me that
years
experience
sense and
of common
you’d
coming
be honest with me in
into this
one bit
not one bit that’s seen
there is not
...
casting
anything
court room and
aside
anything
pray
like this before and I
to God
here,
you
coming
previous
had heard
you myself,
peo-
that none of
or
or the other
verdict,
your
have no
no
effect on
room,
ple
anything
in this court
will ever see
defendant,
you
effect on how
looked at the
no
again.
going
like this
I’m not
to be dishonest
you looked at the evidence.
effect on how
is,
ya’ll
say something
change
what
parent
give
explain
I’m a
you
too and I can’t
is,
is,
what
evidence
the law
evidence
easy explanation
why
I won’t
some
so
judge gives you as to how to consider this
try.
you.
evidence. That’s all
have. Thank
charge you
judge
will
the law in this
482-484).
(T. at
judge charges
with that
case and
law that the
*10
Washington
requires
showing
test
some
of
object
Sawhill’s failure to
prejudice
cross-examine,
as a result of counsel’s omission.
the results of the trial
—
at-,
Washington,
U.S.
Consequently,
104 S.Ct. at would have been different.
2064,
petitioner’s
regard
arguments
ington test remains unsatisfied.
ser’s contention that he
was abandoned
In regards to these statistical observa-
guilt
his counsel.6 If
degree
were to some
tions,
question
we
whether
implied
are
said,
even
in what Sawhill
it wаs a weak
specific enough
satisfy
prong
implication
best,
first
and arguably unavoid
the Washington
Assuming
test.
for the
light
able in
of the overwhelming evidence
allegations
moment that the
do raise some
strategy.
stated trial
This situation
question as to
performance,
counsel’s
differs markedly from the cases cited in
nonetheless is clear
petitioner
appellant’s
brief where defense attorneys
failed to direct
any segment
us to
expressly
implied
conceded or strongly
trial where a
probability
reasonable
exists
of their clients. See Francis v.
1194-95,
Spraggins,
720 F.2d at
we cited
Spraggins,
Id. at 649. As we noted in
approval
Wiley
added),
the Sixth Circuit
(emphasis
case of
v.
“complete
at 1194
it is a
con-
Sowders,
(6th Cir.),
denied,
(4) Sentencing Phase
1463; Solomon,
We further
find no merit to the
the record is
more
allegation
prepare
that Sawhill failed to
have been affected
errors than a case of
testify.
guilt supported
mother to
To the con
clear
confessions and
at-,
trary,
stated that he discussed her
direct evidence.
Id.
104 S.Ct.
occasions, 2069,
699;
testimony with her on several
King,
L.Ed.2d at
see also
approach
clearly
he decided that the best
F.2d
at 1464. The instant case is
testify
category,
to allow her to
in a narra within the latter
consequent-
be
ly
recognize
petitioner
carry
tive fashion. Sawhill further stated that
we
must
*12
specifically
trying
satisfy
instructed her not to men
substantial burden in
the
anticipating
component
tion
her son was
the
second
Washington
death
of the
test.
attorney
1539,
sentence.
refuse
Boykins Wainwright,
We
to fault an
See
v.
737 F.2d
spontaneous
(11th Cir.1984).
for the
accept
exclamation of an emo 1543
if
Even we
attorney
tional
spe
specific
witness where the
has
that some of Sawhill’s
actions fell
cifically instructed the
range
pro-
witness to avoid outside the wide
of reasonable
topic.
assistance,
fessional
we nonetheless are
totality
convinced
under the
of the
applying
In
the Washington standard to
circumstances, they
way
in no
affected the
sеntencing phase,
we find that Messer
ultimate outcome of the
specific
has asserted two
acts or omissions
phase of this trial. See United States v.
proving
aimed at
Sawhill ineffective. As
Gibbs,
728,
(11th Cir.1981).
662 F.2d
730
argument
for the
that there was additional
Accordingly,
petitioner
we hold that
has
evidence,
mitigating
we believe that Saw-
failed to meet
showing
his “burden of
justified
hill
presenting ques-
was
in not
reasonably
the decision reached would
like-
character
tionable
witnesses. The evidence
ly have
[alleged]
been different absent the
indicates that these witnesses were some-
—
-,
Washington,
errors.”
U.S. at
testify
what reluctant
on Messer’s be-
104
S.Ct.
Cir.1984), support petitioner’s posi would (5) Conclusion tion. We have reviewed the instructions given, however, and conclude that the trial In prevail order to on an ineffec sufficiently charge court did claim, tive assistance prong the second bodily injury. the issue of Washington requires showing test that counsel’s errors were argument apparently so serious that Petitioner’s is the defendant deprived premised portion jury charge fair trial. on that at-, Id. judge S.Ct. at 80 L.Ed.2d at where the trial read verbatim the Court, 693. As Supreme noted Georgia simple how- section which defines Code ever, Granted, a verdict or only weakly conclusion kidnapping.8 if this was all that agreed 8. Had we with the that Messer sel would next have us consider whether simple kidnapping, finding any statutory convicted of coun- rendered invalid INJURY” in- “KIDNAPPING WITH BODILY arguably the given, then allegations At the the said ac- insufficient. and includes “that be structions how- charge jury, inflict serious and cused did then and there beginning of in- discussing ever, judge, upon the said grievous bodily injuries dictment, jury as follows: Tanner, resulting instructed injuries Rhonda said (R. 3-4). two with the her death.” Index at charged in count is also
He
bodily injury.
finding
guilty of
kidnapping with
returned a verdict
offense
that the
alleges
respect,
in substance
the instant case
count
count two.
That
Potts,
February
markedly
did on
different from
where
accused
forcibly maliciously
unlawfully
county
kidnapping
was indicted for
defendant
take,
lead,
carry away,
fraudulently
bodily injury,
jury’s
but the
verdict
child
away Rhonda Tanner a
entice
“We,
jury,
find the defendant
stated:
age
years,
of sixteen
the said
under
Three,
guilty
kidnapping.”
as to Count
being
age
of seventeen
over
accused
added).
Potts,
(emphasis
stances
guilt,
overwhelming evidence of
Sawhill’s
say you’ve got
years
dare
five hundred
strategy cannot be faulted. See
choice of
experience
of common sense and
Ford, (11th
v.
Warner
there is
one
bit ... not one bit that’s
Cir.1985).
strategy,
His execution of that
anything
pray
seen
like this
and I
before
however,
certainly
most
can.
you myself,
that none of
or
or the
God
courtroom,
people
other
will ever
III. THE EXECUTION
anything
again.
see
like this
guilt-
closing
at the
Sawhill’s
comments,
pur-
These
under the asserted
comprised
phase
itself
innocence
—which
trust,
pose
establishing
jury’s
could
proc
complete breakdown of the adversarial
only have increased Messer’s burden of
ess,1 though
degree
one without
proving
subsequent phase
in the
v.
Strickland
required under
prejudice
mitigating
circumstances out-
unquestionable
ef
Washington —had
weighed aggravating circumstances. The
consolidating all of Messer’s defen
fect of
unreasonableness
of these statements
single
win-or-lose at
efforts
into
sive
immediately evident
considered in
when
sentencing phase to avoid the
tempt at the
conjunction with the fact that one of the
penalty.
significant
It is most
death
foreseeable
issues
closing argument
made to the
“outrageously
the offense was
whether
jurors
shortly
who
thereafter would
same
vile, horrible,
wantonly
or inhuman
light
fate.
of this
determinе
torture,
mind,
depravity of the
it involved
fact,
incomprehensible
I find it
and certain
aggravated battery
the victim.”
or an
purported
trial strate
ly detrimental
§ 17-10-30(b)(7). Therefore, al-
O.C.G.A.
gy
emphasize
the horror
that Sawhill
though
closing argument at the
by making
following
state
Sawhill’s
of the crime
phase
justify
guilt-innocence
does not alone
jury:
ments to the
reasonably
distinguishes
majority
Sawhill could
between a "tactical
80 L.Ed.2d
verdict,
all,
*15
guilty
only
"complete
agreed
if at
the de-
have
with the
retreat” and a
concession” of
Furthermore,
guilt, placing
closing argu-
under
Sawhill’s
it had been returned.
fendant’s
after
the facts of this
strategy
Similarly,
category.
a trial
that man-
in the tactical retreat
ment
guilt
jury
closing argu-
even
majority
dates a concession of
before the
concludes that
jurors
"express”
guilt
question
considers the
assumes that
ment contained no
concession
“arguably
perform
separate
any implied
impartially
and
concession was
un-
will not
and
assigned
responsibilities
to them at the
avoidable."
distinct
sentencing
guilt-innocence
phases
Fairly speaking, these conclusions are incredi
words,
strategy assumes
trial.
In other
such a
attorney,
Only
after the State’s
ble.
moments
jury
only
will
find dеfense counsel
Sammons,
argued that
the evidence
Mr.
had
previously
phase
he
credible at the
if
jurors’ minds that
could leave no doubt in the
guilty.
proper
conceded that his client was
niece,
flatly stat
Messer had killed his
Sawhill
claims of ineffective
assessment of
assistance
be no less honest with each and
ed: "I would
assumption. We must
cannot tolerate such an
you
you
every
to tell
the evi
one of
if
tried
"reasonably,
presume that the
consci-
something other than what Mr. Sam
dence said
entiously,
impartially applying the stan-
day
occurred on that
so I’m not
mons indicates
at-,
govern the decision.” Id.
That,
dards that
quite simply,
express
going
was an
to.”
S.Ct. at
The effect of this opinion both her and his that the balance of completely undermined when the mother aggravating mitigating question answered Sawhill’s final circumstances with the yield statement that she and a sentence of expected death. To have penalty. testimony and were reconciled to the death elicited such manifestly un- The statement “spontaneous” was not reasonable. uncertainty
2. The record effectively reflects some as propor- increases in direct every potential whether witness who vоl- tion. Id. appear testify unteered to in Messer’s behalf prior Messer had no arrest record and had mag- was interviewed defense counsel. The satisfactorily employed. been These facts were everyone istrate found that Sawhill contacted presented argued they neither nor whose name had been furnished to the defense. should have been. Id. Messer’s honorable ser- Yet the record contains affidavits from friends military vice in the was not mentioned. His employers and former who state that noti- religious church attendance and other activities willingness help fied counsel of their could have been described in detail but were magistrate’s opinion were never contacted. The opinion not. I offer no as to whether Sawhill’s majority does not mention these affiants. The presentation mitigating failure to ensure the opinion concludes without elaboration that itself, comprises, evidence such as this inef- *16 spoke Sawhill to "most" of the character wit- fective assistance of counsel. The absence of nesses who were available. evidence, however, certainly such most contri- Mitigating especially important evidеnce was buted to the total breakdown of the adversarial simply because of the over- process sentencing phase at the of the trial. whelming evidence of but because of "the After Messer’s mother stated that she and her county attitude in the small rural where the son were reconciled to the death sentence and Tyler Kemp, murder occurred." v. view, personal Sawhill intimated a similar all (11th Cir.1985). community was out- mitigation had left for was the testimo- raged, widespread and Sawhill encountered re- ny concerning past, from Messer’s mother his among family help luctance even members to in vastly incomplete. King which was Strickland, See v. Community pressures against Messer’s defense. assisting (“attor- supra, F.2d at 1463-64 pervasive the defense were so that the ney’s failure to available character wit- attorneys appointed represent two first to Mes- mitigation closing argu- nesses in and his weak they ser asked the trial court if could be re- profes- ment constituted both an unreasonable circumstances, placed. In these the need for performance by attorney imper- sional mitigating particularly great, evidence is and the prejudice”). missible attorney’s duty to find such evidence and degree closing argument ing” at the sen- his client faltered to such a SawhilFs complete reconcilia- in the adver- phase reflected a similar that a breakdown tencing De- penalty part. process resulted. No one addressed to the death on sarial tion magis- “nonargument” by the a and said that Messer did not de- scribed as majori- trate, Incredibly, testimony discussed and not even to die. serve argument contained not ty, brief in im- closing Sawhill’s Messer’s behalf testimony mitigating plied opposite. reference in its en- just one Viewed In- given by mother. previously then, Sawhill’s at the sen- tirety, conduct stead, burden it focused on the awesome tencing phase clearly unreasonable. determining Messer’s placed jury in on the testing total lack of under- adversarial re- the fortitude that would be fate and in A my confidence the outcome. mines live, him quired juror a to decide to let probability given exists a reasonable verdict if the easiest and most obvious as proper proceeding, adversarial at least one By death sentence. all reason- were the juror weigh aggravating would and miti- standards, to ad- simply failed able gating differently. circumstаnces There- his client: vocate for fore, I reverse would the decision say, suggested and it I dare has been court and a new sen- district remand for ..., ought argue me to to hearing. tencing him cruel to leave alive is a more got live with punishment because he’s
it, you. I say I don’t know what to so
really don’t. in importantly,
More Sawhill intimated aggravat- as well the balance of opinion ing mitigating yielded circumstances YOUNG, Jr., Charlie penalty: death Petitioner-Appellant, responsi- an decision awesome is] [Your v. say I dare rather be
bility and KEMP, Warden, Georgia Diagnos- Ralph seats, y’all’s here than in as over because Center, Joseph tic & Classification H. these parent under circumstances ... Briley, Attorney Ocmulgee District decide, y’all [ellipsis that’s for in Circuit, Respondents-Appellees. original] No. 84-8408. Surely explained this conduct cannot be establishing jury’s means of trust. Appeals, United States Court of purport Nor did these statements to hu- Eleventh Circuit. any way Messer in I can un- manize 3,May Moreover, the derstand. statements do not “nonargument,” were comprise Rehearing and Rehearing En Banc damaging repre- than no more 7, 1985. Denied June As previously sentation at all. held Strickland, F.2d at
King supra, v. emphasis closing argument at the na-
sentencing phase reprehensible
ture of the defendant’s crime militates finding
favor of a of ineffective assistance. view, the harm my caused Sawhill’s *17 great in this case at least as
statements King.
as that caused sum, despite acceptable choice of strategies in this con- Sawhill’s sentencing phase in “humaniz-
duct at the