Lead Opinion
Robert Dale Conklin, an indigent defendant, appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus in his capital case. After review of the record and oral argument, we affirm.
BACKGROUND
Conklin, a twenty-three year old Mc-Donalds manager, first met George Crooks, a twenty-eight year old lawyer, at an interstate rest stop. Over a period of time, the two established an intimate sexual relationship. On the night of Monday, March 26, 1984, Crooks went to Conklin’s apartment. According to Conklin, he told Crooks that evening that he wished to end their relationship, at which point Crooks became “moody” and “upset.” Later in the evening, the two men smoked marijuana, and Crooks, who had recently had his wisdom teeth removed, also took several codeine pills.
Conklin claims that when he attempted to go to bed that evening, Crooks would not allow him to sleep. In Conklin’s statement given to law enforcement officers after his arrest (“post-arrest statement”),
Although not mentioned in his post-arrest statement, Conklin testified at trial that the events escalated when Crooks told Conklin that he wanted to have anal intercourse with him against Conklin’s wishes. At this point, Conklin allegedly attempted to force Crooks to leave. His post-arrest statement continues, “[e]ventually I ... hit him and he hit me back. He was still sitting on me. We were there struggling and I reached over and grabbed a screwdriver. I swung the screwdriver and it stuck into him. He rolled off the bed and I followed him screwdriver in hand.” At trial, Conklin altered this previous statement, testifying, “[Crooks] rolled off the bed and I followed him and stopped at the edge of the bed and I had the screwdriver in my hand.” He then testified, “he saw that I had the screwdriver, he told me to give it to him. He ... got hold of me around the waist, or legs. He pulled me off the bed and we started to struggle for the screwdriver ... and he was going to take it away from me.” Conklin testified that he became afraid for his own life at this point. He admitted at trial, however, that he initially did not think Crooks was trying to hurt him.
Conklin’s post-arrest statement continues, “I held him down and I stuck the screwdriver in his ear, I wiggled it around.... I tried to stop him from bleeding but I think he was already dead.” At trial, Conklin added testimony of a greater struggle occurring immediately after this second stabbing. He testified, “[Crooks] squirmed away. He got away, and he grabbed me, he was saying ‘give me the screwdriver.’ We were struggling and I stabbed him other times during the struggle. I don’t know how many times or where.... I was just fighting the best I could.” On cross-examination, Conklin stated that he may have stabbed Crooks up to seventeen times with the screwdriver, and that some of these stabbings may have been inflicted in the neck and shoulder area.
Conklin, who had been released on parole after serving a period of incarceration in Illinois, decided not to call the police. According to Conklin, rather than calling the police, he “panicked” and decided to dispose of the body. Because the body was too heavy for Conklin to transport by himself, Conklin dragged Crooks’s body to the bathtub and attempted to lighten it by draining it of blood.
Leaving Crooks’s body in the bathtub, Conklin went to Crooks’s apartment to destroy any evidence connecting the two men. He replaced the cassette tape in Crooks’s answering machine, and took a card containing Conklin’s name and telephone number. Conklin then took Crooks’s checkbook and drove Crooks’s car to a grocery store, where he purchased cleaning supplies and knives. Conklin abandoned Crooks’s car in a parking lot and returned to his apartment.
Conklin’s post-arrest statement describes his attempt to dispose of Crooks’s body, stating, “[w]hen I got [to the apartment] I went ahead and went to work to cut him in half so I could get him out of there.... I decided there would be less of him to move if I could put some of him down the garbage disposal.... I then cut the rest of him up in small enough pieces to put in the bags.”
The police recovered a great deal of evidence from the trash dumpster where Crooks’s body was found, including several knives, five screwdrivers, a length of rope, bloody bed clothes, and credit cards belonging to Crooks. Crooks’s body itself was dispersed in nine separate garbage bags.
In addition to the items found in the dumpster, the police recovered substantial evidence linking Conklin to the murder. Upon searching Conklin’s apartment, the police recovered carpet fibers that matched fibers from bed clothing that had been found in the dumpster. The police also found blood spots on Conklin’s bed, observed blood on the carpet beside the bed, recovered body parts from the garbage disposal, and found a forged birth certificate in the name of “Robert Allan King.” Conklin later admitted that, before he was caught by the police, he planned to obtain a social security card and a driver’s license in that name.
In Conklin’s post-arrest statement, he states that only two screwdriver wounds were inflicted prior to death. This statement was contradicted at trial by several pieces of evidence. For instance, Conklin altered his own post-arrest statement by testifying at trial that he stabbed Crooks several additional times with the screwdriver while they struggled for its possession. In response, the state presented evidence that these additional wounds were inflicted before death by a knife rather than a screwdriver, thereby further undermining Conklin’s story.
In addition, several witnesses testified that Conklin was not visibly bruised or injured on the day following Crooks’s death, tending to undermine Conklin’s self-defense claims.
Finally, the autopsy report prepared by the state’s medical examiner, Dr. Saleh Zaki, and his subsequent trial testimony supported the prosecution’s version of events. On direct examination, Dr. Zaki testified that eight stab wounds on the right side of the victim’s neck were “ante-mortem,” meaning that, in his opinion, these wounds were inflicted prior to death.
Notably, however, in voir dire of Dr. Zaki outside the presence of the jury but within the presence of the trial judge, Dr. Zaki admitted that, while it was his opinion that the eight knife wounds to the neck were inflicted prior to death (which conflicted with Conklin’s defense and testimony), it was also possible that these wounds were inflicted shortly after death (which did not conflict with Conklin’s defense and testimony). Conklin’s attorney, Tommy Chason, subsequently obtained Dr. Zaki’s admission on cross-examination that ante-mortem wounds could occur “a very short period of time after death,” thereby undermining Dr. Zaki’s statement on direct examination that the eight knife wounds to the neck occurred before death.
In an effort to further rebut the testimony of Dr. Zaki and to prove that he did not intentionally kill George Crooks, Conklin filed two pre-trial motions requesting funds to hire an independent medical expert. Conklin’s counsel explained to the court that he needed a medical examiner not only to assist in presenting Conklin’s defense but also to facilitate his eross-examination of Dr. Zaki. At this time, the court was aware that Conklin’s sole defense of disproving intent depended on his ability to pinpoint the exact cause of death. The more specific of Conklin’s two pretrial motions requested funds not to exceed $2,500, and sought “expert assistance of psychiatric, medical and other forensic aids.... ” In addition to these two motions, Conklin made several oral requests for funds to hire independent medical experts. However, the court denied each of Conklin’s requests. Prior to sentencing, Conklin renewed his motion seeking expert assistance, but the court again denied this request.
Conklin was convicted for the murder
Conklin appealed his conviction and death sentence to the Supreme Court of Georgia, which upheld the sentence. See Conklin v. State,
Conklin sought federal habeas corpus relief on June 22, 1995. On October 14, 1999, the district court denied federal ha-beas relief on most of Conklin’s claims. On August 28, 2001, the district court denied relief on his remaining claims. After denying Conklin’s motion for a new trial, the district court granted a certificate of appealability (“COA”) as to “all issues” in its second order denying habeas relief. We granted an expansion of the COA on February 19, 2003.
ISSUES ON APPEAL
Conklin asserts the following grounds for habeas relief:
(1) The evidence was insufficient to support the jury’s verdict because no rational factfinder could have found beyond a reasonable doubt that the killing was not in self-defense;
(2) The trial court conducted Conklin’s trial in such a manner that no competent counsel could have rendered effective assistance, and therefore prejudice should be presumed pursuant to United States v. Cronic,466 U.S. 648 ,104 S.Ct. 2039 ,80 L.Ed.2d 657 (1984);
(3) Because of defense counsel’s inability to ask appropriate questions regarding the victim’s reputation, Conklin was denied effective assistance of counsel which rendered the result of the proceedings unreliable. See Strickland v. Washington,466 U.S. 668 , 687,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984).
(4) The trial court’s refusal to appoint a defense pathologist violated petitioner’s right to due process of law pursuant to Ake v. Oklahoma,470 U.S. 68 ,105 S.Ct. 1087 ,84 L.Ed.2d 53 (1985);
(5) All of the above errors taken together robbed petitioner of a fair and reliable trial and sentencing proceedings in violation of United States v. Blasco,702 F.2d 1315 (11th Cir.1983).6
STANDARD OF REVIEW
We review de novo a district court’s denial of a habeas corpus petition under 28 U.S.C. § 2254. See Sims v. Singletary,
I. INSUFFICIENT EVIDENCE TO SUPPORT VERDICT
Conklin first argues that the evidence was insufficient to find him guilty of capital murder because no rational factfinder could have found beyond a reasonable doubt that he acted with malice.
In reviewing allegations of sufficiency of the evidence, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
Under Georgia law, “[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” O.C.G.A. § 16-5-1(a) (1981). Express malice is defined as the “deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof.” Id. at § 16—5—1(b). Implied malice exists “where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Id.
Conklin argues that the evidence is insufficient to support a finding of malice aforethought because the evidence only shows that he killed Crooks in self-defense. However, viewing the evidence in the light most favorable to the prosecution, we find that the jury could have found the presence of malice beyond a reasonable doubt.
Substantial evidence points to the presence of malice. First, Dr. Zaki’s testimony that the multiple knife wounds to the victim’s neck were, in his opinion, inflicted prior to death, implies a premeditated and brutal killing. Dr. Zaki’s opinion was bolstered by the fact that he had been a medical examiner for eleven years and had performed over 3,500 autopsies.
Second, Conklin’s treatment of Crooks’s body after his death supports the finding of an “abandoned and malignant heart” necessary to find implied malice. See O.C.G.A. § 16-5-1 (b) (1981).
Third, by convicting Conklin of murder and recommending a sentence of death, the jury necessarily discredited Conklin’s testimony that he killed Crooks in self-defense. The jury was entitled to discredit Conklin’s testimony. See United States v. Chastain,
The jury’s decision not to believe Conklin’s version of the events is supported by several facts. First, Conklin’s post-arrest statement and trial testimony were inconsistent as to critical details just prior to Crooks’s death. Second, Conklin was not visibly bruised or injured on the day following Crooks’s killing, tending to undermine Conklin’s self-defense claims. Finally, rather than calling the police immediately, Conklin dismembered Crooks’s body, attempted to cover up his crime in various ways, and fled to Florida. This is evidence that a reasonable jury could have relied upon to find Conklin guilty of malice murder.
II. PER SE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Conklin argues that his trial was conducted in such a manner that no competent counsel could have rendered effective assistance, thereby creating a valid claim for per se ineffectiveness. To support this claim, Conklin relies on two grounds — the court’s denial of funds for an independent pathologist and the court’s alleged rush, to trial. We find this claim to be without merit.
Whether a criminal defendant has received effective assistance of counsel is a mixed question of fact and law. See Mincey,
The United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. “[T]he right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington,
Generally, to establish ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, and counsel’s performance prejudiced the defense. See Mincey,
We consider Conklin’s two grounds for per se ineffectiveness separately. First, Conklin claims that by rushing his trial, the court denied him the effective assistance of counsel. This claim is without merit.
Conklin’s second ground for per se ineffectiveness rests on the trial court’s denial of funds to hire an independent pathologist. Conklin argues that, as a result of the denial of funds, his “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” at the sentencing phase. See Cronic,
To support his claim, Conklin points to Chason’s admission at the state habeas proceedings that although he could have called the defendant’s girlfriend and father as mitigating witnesses, he simply “gave up” after the court denied his requests for an independent medical expert. Chason testified, “if I could not present my entire mitigation and all the evidence I wanted to present, there wasn’t any use of me presenting any of it.”
While Chason’s decision not to present potential mitigating evidence at sentencing is questionable, the Supreme Court has ruled that an attorney’s failure to combat the prosecution must be “complete” in order to avoid the prejudice requirement; if the attorney presents any mitigating evidence, then actual prejudice must be shown. See Bell v. Cone,
Further, the state habeas court discredited Chason’s testimony implying that he did not adequately prepare for the sentencing phase. The state court found that
III. INEFFECTIVE ASSISTANCE CLAIMS UNDER STRICKLAND
Conklin presents two grounds for ineffective assistance of counsel: (1) ineffectiveness at trial for the failure to elicit negative character evidence concerning the deceased; (2) ineffectiveness at sentencing for failing to put on any mitigating evidence at sentencing.
Under Strickland, to establish ineffective assistance of counsel, a defendant must show that (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. See Strickland,
A. INEFFECTIVE ASSISTANCE AT GUILT STAGE
Conklin argues that Chason was ineffective for failing to elicit certain mitigating testimony at trial. After the state questioned the victim’s father — who portrayed the victim as a hard-working, successful, and intelligent man — the defense called Chuck Desederio in an attempt to rebut this evidence and show that Crooks had provoked his killing. Desederio, who had shared an office with Crooks, would have testified that Crooks had “a personality disorder,” would often get hostile and lose his temper, “was easily triggered,” and had a tendency for violence. The judge did not allow some of Desederio’s statements because under Georgia law, general reputation evidence is admissible but evidence of specific acts of violence is not. See Henderson v. State,
We find that Chason’s failure to elicit reputation evidence from Desederio was not prejudicial. Through cross-examination of the state’s witnesses, Chason demonstrated that Crooks had been reprimanded for raising his voice at a secretary; that he had fantasized about Conklin; that he liked young, blond-haired males; that a police officer stated that “this looked like a jealousy situation;” and that Crooks was “a
B. INEFFECTIVE ASSISTANCE AT SENTENCING
Conklin also argues that his attorney was constitutionally ineffective because he did not present any mitigating evidence at sentencing. We find that Chason’s conduct at sentencing does not rise to the level of ineffectiveness.
Under Strickland, we first consider whether counsel’s performance was constitutionally deficient, which “depends upon the totality of the circumstances [and is] shaped by the rules and presumptions set down in Strickland ... and its progeny.” Waters v. Thomas,
A sentencing jury should not be precluded from considering any aspect of a defendant’s character or record as a basis for a sentence less than death. See Grayson v. Thompson,
Conklin argues that Chason’s failure to provide any mitigating evidence at sentencing was constitutionally ineffective in light of the fact that Chason’s sole strategy was to “humanize” Conklin in order to avoid a sentence of death.
Conklin also argues that Chason could have elicited more evidence about his troubled childhood, his history of mental problems, and his lack of violent behavior. In Waters, we rejected a similar claim because Waters’s attorney called eight witnesses who testified favorably as to defendant’s character and presented evidence that defendant was taking anti-psychotic medications. . See Waters,
Even assuming, arguendo, that Conklin could satisfy the first Strickland requirement, we find that the balance of aggravating and mitigating circumstances that led to the imposition of the death penalty in this case would not have been different had counsel introduced the mitigating testimony of Conklin’s girlfriend and father. See Strickland,
In an attempt to show prejudice, Conk-lin relies on Williams v. Taylor,
Such potentially prejudicial omissions are not present in this case. Here, Cha-son simply chose not to present the testimony of Conklin’s girlfriend and father, who might have been able to further humanize Conklin. This decision was not prejudicial because both had previously testified during the guilt phase. Thus, their testimony at sentencing would have
IV. AKE CLAIM
Relying on Ake v. Oklahoma,
In Ake, the Supreme Court held that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” Ake,
Conklin now attempts to expand Ake to cover requests for non-psychiatric experts. He bases his argument on the Court’s statement in Ake that “when the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the ... defense.” Id. at 80,
Assuming, arguendo, that Ake extends to non-psychiatric experts, then we must determine (1) whether Conklin made a timely request to the trial court for the provision of expert assistance; (2) whether it was “reasonable” for the trial court to deny Conklin’s request; and (3) whether the denial rendered Conklin’s trial fundamentally unfair. See Moore,
Conklin satisfies the first Moore requirement because he made a timely request to the trial court for the provision of expert assistance. Conklin filed two written pretrial motions requesting funds for expert assistance, both on May 11, 1984. The first motion, entitled “Motion for Funds to Hire Experts to Aid in the Preparation of the Defense” reads, in pertinent part:
Now comes the accused, Robert Dale Conklin and moves this Court to order funds be provided to counsel for Robert with adequate funds with which to hire experts as indicated in the preparation of his defense.
We show the Court the following, in support, thereof.
1.Robert is an indigent, without resources to hire an attorney or other expenses incidental to the defense of a criminal case.
3. Physical evidence has been gathered by the Fulton County Medical Examiner [Dr. Zaki], and State Crime Lab.
4. This evidence may have a bearing on the guilt or innocence of the accused.
5. The accused must be prepared to defend himself at a bifurcated trial procedure and may require other experts to present in his defense.
7. An accused has a constitutional right to be free from financial circumstances which could hinder his defense. Griffin v. Illinois,351 U.S. 12 ,76 S.Ct. 585 ,100 L.Ed. 891 .
8. An accused has a right to have an expert of his own selection examine the physical evidence. Patterson v. State,238 Ga. 204 ,232 S.E.2d 233 (1977); Barnard v. Henderson,514 F.2d 744 (5th Cir.1975).
9. Fulton County has funds available.
10. The amount of funds needed are not expected to exceed $2,500.00.
Conklin’s second motion, entitled “Motion for Funds for Expert Witnesses,” states in its entirety:
1. The Accused is incarcerated in Fulton County Jail.
2. He is indigent and has Court appointed attorneys, and without funds to provide financial assistance.
3. Some experts are needed to assist defense counsel and involves the attorney-client privilege.
4. Because the state is seeking the death penalty, expert assistance of psychiatric, medical and other forensic aids are necessary.
5. Interviews by expert witnesses of the Accused may be a critical stage of these proceedings.
Wherefore, the Accused moves this Court to grant sufficient funds to aid in the preparation of his defense.
Conklin thereafter filed a renewed motion for funds for expert assistance on May 30, 1984, seeking funds for “psychiatric, medical, and other investigative assistance.” At an oral hearing held that same day, defense counsel stated, “... we will need some [] psychiatric assistance and perhaps a medical person to assist us in preparing the defense, because these could be critical issues not only in the ... first phase of trial but in the bifurcated procedure.” Counsel’s requests for expert assistance were made before trial began. As such, they are enough to satisfy the first Moore requirement of a timely request.
We now turn to the second Moore factor — whether the trial court acted reasonably in denying the defendant’s requests for expert assistance. Relying on Ste
In determining the reasonableness of the trial court’s refusal to provide independent expert assistance, we consider only the facts available to the trial judge when he made a ruling on the particular motion. Moore,
Conklin argues that the trial court acted unreasonably in failing to grant his requests because the court was well aware that his sole defense was lack of intent and that the state’s medical expert would seriously undermine that defense. Thus, he argues, the court should have given him the funds necessary to combat the testimony of Dr. Zaki. We agree.
Because Conklin’s trial occurred before Ake, Stephens, or Moore were decided, in his first motion of May 11, 1984, Conklin properly requested “an expert of his own selection” pursuant to Patterson v. State,
The question is not one of discovery but rather the defendant’s right to the means necessary to conduct his defense. [We believe that] ... “the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own.”... Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.
Id. at 746 (emphasis added).
In the other case cited in Conklin’s motion, Patterson v. State,
Although Conklin can satisfy the first two Moore requirements, he cannot satisfy the third requirement because he cannot show that the alleged Ake error had “substantial and injurious effect or influence in determining the jury’s verdict.” Hicks,
Second, it is unlikely that the additional testimony would have altered the jury’s adverse credibility determinations. Conk-lin took the stand and recounted his version of the events, which pointed to a killing in self-defense. However, the jury chose not to believe him. We are unable to revisit the jury’s determination. See Chastain,
Finally, in addition to Dr. Zaki’s opinion, the jury also had before it substantial evidence supporting a finding of implied malice. First, Detective Cook of the Fulton County Police Department testified that he found “several knives, five screwdrivers, and a length of rope” in the dumpster where Crooks’s body was discovered. Second, Conklin’s statements implying an accidental killing can be viewed as inconsistent with the events occurring after Crooks’s death. Rather than calling the police to report the alleged accident, Conk-lin dismembered Crooks’s body, methodically destroyed evidence connecting him to the crime, showed no immediate remorse for his actions as evidenced by having friends over to his apartment for drinks, attempted to alter his identity, and then fled the state. In addition, the police recovered an instruction manual from Conk-lin’s apartment describing how to slaughter animals in the same manner that Conklin admitted to having treated Crooks’s body, implying that Conklin planned his crime in advance.
Because Conklin has failed to show that an independent expert would have testified that a knife was in fact used only to inflict postmortem injuries, and in light of the substantial evidence in support of a finding of implied malice, we find no prejudice in the trial court’s refusal to appoint an independent pathologist.
V. CUMULATIVE EFFECTS CLAIM
In United States v. Blasco,
We are unable to understand why a trial judge would refuse to grant a short continuance and afford a first-degree murder defendant $2,500 of available state funds to hire an expert crucial to his defense. Yet, we cannot say that Conklin’s trial, as a whole, was fundamentally unfair and outside of the bounds of the Constitution.
We affirm the district court’s denial of Conklin’s federal habeas corpus petition.
AFFIRMED.
Notes
. For a complete recitation of Conklin’s post-arrest statement, see Conklin v. State, 254 Ga.
. A McDonalds co-worker, who stopped by Conklin's apartment on the night after the murder, testified that he saw no bruises on Conklin’s face, head, or chest, and that Conk-lin was his "normal self” that evening.
. In the state's direct examination of Dr. Zaki, the state asked, "were you able to determine whether those [eight] stab wounds [to the neck] were made before or after death?” Dr. Zaki responded, "[t]hese are antemortem stab wounds.” The state then sought further clarification, asking, "[i]n your opinion, were those marks or those stab wounds made before death or after death?” Dr. Zaki responded, "Before death, antemortem.”
. Under Georgia law, "[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." O.C.G.A. § 16-5-1(a) (1981). In order to satisfy the intent element of O.C.G.A. § 16-5-1 (a), malice need only exist for a very short period of time prior to a killing. See Brown v. State,
. In Georgia, the death penalty can be imposed only if the jury finds the existence of at least one of ten statutorily enumerated aggravating circumstances. See O.C.G.A. § 17-10-30(b)(1-10). The section 17-10-30(b)(7) circumstance found here "consists of two major components, the second of which has three sub-parts, as follows: (I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant.... [Tjhe evidence must be sufficient to satisfy the first major component of the statutory aggravating circumstance and at least one sub-part of the second component.” See Conklin v. State,
. The district court granted a COA on two additional issues: (1) whether the trial court's failure to provide Conklin with an independent psychiatrist or psychologist violated Ake v. Oklahoma; and (2) whether defense counsel was ineffective for failing to obtain the appointment of an independent psychiatrist or psychologist. We will not consider these issues because Conklin has not argued the merits of these claims on appeal. See Farrow v. West,
. The district court adopted the state habeas court's findings of fact with respect to the issues herein.
. See, e.g., Powell v. Alabama,
. On May 30, 1984, Chason requested additional time to prepare at a pretrial hearing, but the court denied his request. On the Friday before trial, Chason informed the court that he was unprepared for trial. The court again denied Chason's request for a continuance, and proceeded to trial the following Monday.
. For the same reasons, we reject Conklin's argument, based on Ouber v. Guarino,
. In the state habeas proceedings, Chason stated that "humanizing” Conklin was his sole sentencing strategy. This point was also emphasized at oral arguments.
. Dr. Zaki testified that a knife was used to inflict multiple wounds that were, in his opinion, inflicted before death, while Conklin's testimony indicated that all knife wounds occurred after death. Conklin contends that an independent medical examiner could have helped him cast doubt on Dr. Zaki's testimony. According to Conklin, without an additional expert to counter-balance the testimony of Dr. Zaki, the jury had no realistic choice but to discredit Conklin's testimony. This inference is supported by the fact that Dr. Zaki had been a medical examiner for eleven years and had performed 3,500 autopsies, lending him a credibility that Conklin, an admitted killer, could not match without the testimony of an independent medical expert in support his version of the facts.
. The district court relied heavily on the requirements adopted by this Court in Stephens. In Stephens, we ruled that the reasonableness of a denial for expert assistance turns on:
[First] (1) whether the trial judge was informed of the specific evidence which incriminates the defendant, and (2) whether the information which would assist the defendant could be obtained through the state's experts. Secondly, counsel must provide a reasonably specific description of the expert services sought. A reviewing court must therefore examine: (1) whether counsel delineated the specific type of expert sought; (2) whether the trial court was informed as to the availability and costs of the expert who would perform the requested services and, if known, the name of the expert sought, and (3) whether counsel has shown how the expert would contribute to the defense.
Stephens,
. In Bonner v. City of Prichard,
.Even if we were to follow the district court and apply the requirements of Stephens, we would reach the same result. At the time of Conklin’s trial, without the assurance of mandatory ex parte proceedings as provided by Ake, Chason was justified in omitting from his motions detailed and precise information as to how the requested assistance would be used in presenting Conklin's defense. See Stephens,
. Dr. Spitz is the editor and co-author of the authoritative text entitled Medico-legal Investigation of Death (Werner U. Spitz ed., 3d ed. 1993). Before issuing his affidavit, Dr. Spitz reviewed trial testimony and various materials obtained from state authorities regarding the autopsy of the deceased in this case.
. Letter from Dr. Spitz dated Aug. 31, 1995.
Concurrence Opinion
concurring in the result.
I also would affirm the district court’s judgment. I believe the A/ce-based claim has weaknesses beyond the one pointed to by Judge Wilson.
Dissenting Opinion
dissenting:
I will confess that the grisly facts of this case easily tempt one to merge Conklin’s killing of the victim with his acts upon the body after death. However, notwithstanding the atrocious desecration of the body,
Conklin’s lawyer, assistant public defender Tommy Chason, was assigned Conklin’s case on May 4, 1984, the same day Georgia gave notice of its intention to seek the death penalty. The trial was scheduled to commence thirty-seven days later on June 11, 1984. The state did not provide defense counsel with a copy of the indictment or the required exculpatory and mitigating evidence until May 24, less than three weeks before trial. The court denied repeated requests to delay the trial despite counsel’s statements that he was unprepared. The court also denied repeated requests for a small amount of money to hire expert medical assistance, which Conklin could not otherwise afford. After the jury returned its verdict, Conk-lin’s attorney again asked for additional time to prepare for sentencing. The trial judge refused this request, and Conklin was sentenced to death the following day. His lawyer presented no mitigating evidence whatsoever during the sentencing phase.
The primary evidence of what happened on the night Robert Crooks died came from the statements made by Conklin and forensic evidence based on the condition of the body. The majority briefly mentions Conklin’s testimony that Crooks was killed in a struggle attempting to force Conklin to have anal sex.
The nature of Conklin’s case made thirty-seven days woefully inadequate to the simultaneous tasks of preparing for trial, crafting effective pretrial motions and presentations, and laying the groundwork for an alternative strategy at sentencing. Conklin’s attorney actually accomplished a fair amount in that time, but the severe time constraints simply precluded effective representation. As the majority notes, he investigated possible defenses, submitted and defended pretrial motions, interviewed witnesses, hired an investigator to find additional witnesses, and consulted outside experts. However, compressing such an overloaded agenda into such a short time period made it virtually impossible to accomplish those tasks effectively.
Despite these obstacles, Chason found an expert witness who would unequivocally testify that no medical examiner could state with certainty that the wounds were caused before death. The trial court denied the necessary funding. The majority discounts the inability to present this expert testimony because Dr. Zaki did admit on cross-examination that the antemortem wounds might have been inflicted shortly after death, possibly up to an hour later (though he suggested that fifteen minutes would be more realistic). However, Dr. Zaki had already stated on direct examination that the same wounds had occurred before death. A concession in cross-examination that the wounds he affirmatively said were inflicted before death could equally have occurred after death cannot substitute for the presence of another, equally qualified expert who would have
The majority also downplays the significance of Chason’s failure to present any mitigating evidence at the sentencing phase of Conklin’s trial. In effect, the majority accepts the state court’s finding that Chason made a “tactical decision” not to present additional mitigating evidence. However, “tactical” implies a choice made in order to achieve another purpose. In this case, neither the state habeas court nor the majority cites any plausible advantage Chason obtained by deciding to forgo any and all mitigating evidence at the sentencing phase. Rather, the majority merely notes that Chason presented testimony from Conklin’s father and girlfriend at the guilt phase and then referred to this testimony in his closing argument. Op. at 1204-1205. Nothing explains the failure to present additional evidence about Conk-lin’s history of mental problems or his violent childhood apart from Chason’s lack of time and resources.
The majority’s treatment of Chason’s mitigation “strategy” underscores why I believe Conklin’s case rises to the level of per se ineffective assistance of counsel. Following the analysis outlined in Strickland v. Washington,
Finally, the majority feels “compelled” to reject Conklin’s Cronic claim because the attorney in Cronic itself had only twenty-five days to prepare without any prior experience with the type of case before him, while Chason had thirty-seven days to prepare and had already handled a few death penalty cases. However, Cronic does not stand for the proposition that twenty-five days or more of preparation may never trigger a presumption of ineffective assistance. Rather, the Court held that the “surrounding circumstances” did not justify the presumption in that case. The defense attorney in Cronic had only requested thirty days to prepare for trial, and the trial court actually granted twenty-five days.
Similarly, although the Avery Court rejected a claim of per se ineffective assistance despite only three days of preparation, that holding, too, turned upon “the particular circumstances appearing in this record.” Avery v. Alabama,
Conklin’s case differs significantly. Unlike the situation in Cronic, the “underlying historical facts” were very much in dispute, requiring forensic evidence and expert testimony to resolve. Defense counsel requested continuances and expert witness funding in order to develop his challenge to those facts, and the trial court denied each of these motions. Unlike the situation in Avery, Conklin has suggested specific ways in which his defense would have differed had he been given the time and resources necessary for constitutionally adequate assistance.
Given the complexity of the evidence, the failure of the trial court to provide the time and resources necessary to present a reasonable defense, and the special context of a capital case,
. Conklin was charged only with murder, not with any separate crime connected to the desecration of the body. The state argued that the desecration of the body was relevant to both the defendant’s state of mind and the question of whether the murder was "outrageously or wantonly vile, horrible, or inhuman,” an aggravating circumstance under Georgia law. See Ga.Code Ann. § 17-10-30(b)(7).
. Conklin claimed that Crooks, who was 6' 2" tall and weighed about 200 pounds, while Conklin was 5' 7" tall and weighed about 150 pounds, tried to force him to have anal sex, something he had never consented to do.
.The government argued that Conklin had killed Crooks during a lover's quarrel and relied heavily upon the large number of stab wounds. The government claimed that 34 stab wounds could not possibly have been inflicted in self-defense. Conklin claims that most of these wounds were inflicted after death as part of his attempt to drain the blood and dispose of the body. Whether the wounds occurred before or after death was therefore critical to the case.
. For example, Chason failed to ask Chuck Desederio questions about Crooks’ general reputation for violence after the judge disallowed several specific statements. See Majority Op. at 1203. Chason also failed to develop sufficiently detailed background materials to supplement his requests for psychiatric evidence. See District Ct. Order at 69-72, 143-45. The trial court also admonished Chason for his inability to present evidence in support of pretrial motions in a timely manner. See Tr. of May 11, 1984, Hr'g at 48-49.
. Of course, the choice not to present any case in mitigation seems particularly unreasonable, given that Chason had nothing to lose.
. Similarly, although we rejected a Cronic claim despite a very short time to prepare in Chadwick v. Green,
. See, e.g., Gardner v. Florida,