*1 57 2. in Notwithstanding ruling our Division we reverse grant extraordinary weap- of the State’s motion for new trial on the ons in a charge. right challenge offense The State’s to a judgment State, criminal case is limited OCGA 604 by 5-7-1. Glenn 271 Ga. § (523 13) 891) (463 (1999); Berky State, SE2d Ga. 28 SE2d 266 (1996). An motion extraordinary for new trial is not those among statutorily enumerated chal- may circumstances which State lenge Accordingly, in a criminal case. judgment trial court jurisdiction without to entertain the State’s motion or to grant relief. requested and Judgment part part. reversed All the Justices affirmed
concur. January Decided 200 February Reconsideration denied 2000. Martin, T.
John for appellant. Skandalakis, J. Rudjard Peter District M. Assis- Attorney, Hayes, Baker, General, tant E. Attorney, Attorney Mary District Thurhert Westmoreland, General, Beth for Deputy Attorney appellee.
S99A1703, BENNETT; S99X1747. TURPIN v. and vice versa. (525 354) SE2d Justice.
Thompson, Jack A. Bennett was convicted of malice murder and sentenced sentence, to This Court his death. affirmed conviction and death the Supreme Court of the United States denied his a writ petition for petition certiorari.2 Bennett filed a for a writ of with habeas corpus County, Court of Butts and that court Superior granted peti tion August 1998. The habeas court its on the based decision witness, by assistance rendered Bennett expert psychiatrist, suffering who was from AIDS-related at the dementia time of his testimony. decision, holding
This
reversed the habeas
(1) (113
Wilson,
statutory right
legislature
215 Ga.
Since
created a
acquittal
during trial,
to seek a
verdict of
in a
17-
§
directed
criminal case
codified as OCGÁ
9-1; however,
apply
entry
Although
that statute does not
after the
of a
issue is
verdict.
Court,
presently
any
judgment
not
before the
observe
we
that a
which is “void for
cause,
nullity
may
any
is a mere
held so in
to the
be
court where
becomes material
parties
interest of the
OCGA §
consider it.”
17-9-4.
State,
262 Ga.
Bennett
Georgia,
416, 121
(1992),
denied,
rehearing
506 U.
SC
S. 957
there remanding the habeas court consideration the case to witness remaining claims.3 had found that Bennett’s counsel the habeas court seek a continuance ineffective assistance rendered response impaired court further witness’s conduct. The habeas to the *2 deprived of a fair ineffectiveness that counsel’s concluded completely insanity undermined.4 The defense was trial because appealed has S99A1703. Bennett cross- has in Case No. State appealed arguing court S99X1747, that habeas in Case No. grounds. improperly to relief on other denied his claims description previously has forth a full This Court set during During expert mony, his testi- Bennett’s trial.5 witness’s conduct explana- diagnosis without the witness abandoned his former expressions, appeared “deathly made vol- tion, unteered ill,” “cartoonish” facial testimony the murder was that whoever committed appropriate psychiatric maniac,” and that treatment “vicious stated Tylenol nothing more than for his head- for Bennett would have been follow-up The ache, ailment, for his care. Zantac stomach testimony. laughed expert’s at The conduct and the radi- out loud solely expert’s impaired change testimony in his were to the cal due pivotal face mental condition. In the impairment, of this witness’s manifest a continuance defense counsel failed move for expert remedial order to locate another witness take some other measure. requires accept
“The that we standard review and findings credibility habeas court’s factual determinations unless legal clearly independently apply principles erroneous, but we supports [Cit.]”6 the facts. evidence adduced below7 habeas (1) findings to seek a continuance Bennett’s (2) counsel rendered assistance at his trial and counsel’s effectively Bennett’s so case ineffectiveness right guaranteed by denied his to fair trial as the Sixth and Four- Accordingly, teenth Amendments to the United States Constitution.8 granting petition we affirm the habeas court’s order corpus. writ of habeas
Having order, affirmed the habeas court’s we need not address seeking cross-appeal the claims raised Bennett’s the same relief on 3 (513 478) (1999). Bennett, Turpin 270 v. Ga. 584 SE2d 4 U. See Strickland v. S. 668 80 Bennett, Turpin supra. See Lipham, 270 Bennett, 584-587, summary presented See for a of the evidence at hearing. corpus the habeas Washington, supra. See grounds. Accordingly, we dismiss the for moot- cross-appeal ness. S99A1703; Judgment appeal in Case No. dismissed in affirmed concur, No. except
Case S99X1747. All the Justices Hunstein and Car- JJ., ley, who dissent.
CARLEY, Justice, dissenting.
Originally,
habeas court set aside Jack Bennett’s conviction
and death
the ground
sentence on
the trial
testimony of his
witness,
Harris,
Dr. Boaz
ineffective and deprived
him of
process.
due
In so
court
doing,
upon
relied
an erroneous
legal
and we reversed
theory,
and remanded the case
order for the
habeas court
to make a proper determination
as to whether
response
defense counsel
to the
of Dr. Harris
incompetency
vio-
lated Bennett’s constitutional
assistance. Tur-
right
legal
effective
pin
habeas court set the conviction and a of this now affirms that my opinion, order. how- ever, the and, habeas court our previous misconstrued decision con- sequently, yet again erred its resolution of the constitutional issue. Therefore, I dissent to the of a majority’s affirmance result- *3 judgment from the habeas ing court’s failure to apply continued appropri- ate in resolving standards authorities this case.
If he is to prevail, Bennett has the burden of proving performance of his trial counsel was deficient the deficient performance defense. “Unless a defendant makes both showings, it cannot be said that the conviction or sentence death a resulted from breakdown the adversary process that renders the (III) Washington, unreliable.” Strickland v. 668, result 466 U. S. SC With to the first regard prong, the habeas court must give effect to strong presumption within the wide performance attorney range of rea- conduct, sonable cannot professional it find otherwise unless and until Bennett rebuts that and con- successfully presumption by clear (2) (496 State, Flanigan vincing evidence. 162-163 Ineffective-assistance-of-counsel claims will raised be only those cases where a been guilty defendant has found of the offense and from the charged, perspective hindsight there is a natural a tendency to as whether dif- speculate might ferent been strategy have more successful. Fretwell,
Lockhart v. U. S. 122 LE2d second-guess tempting coun- It too for a defendant is all sentence, or and it is after conviction adverse sel’s assistance easy examining court, counsel’s defense after all a too particular proved unsuccessful, to conclude that act has [Cit.] unreasonable. omission counsel was (A). (III) at 689 both the Strickland v. habeas court peti reviewing court must not conclude that a and a simply unsuc was ineffective because tioner’s trial counsel petitioner’s attorney must was ineffective be cessful. A claim that a scrutiny applicable appraised of coun standard. “Judicial under the Washing highly performance must be deferential.” Strickland v. sel’s (III) (A). appropriate test ton, at 689 nothing lawyers do with the best would have “has what good lawyers test what most would done. Nor only lawyer at have done. We ask whether some reasonable acted, circumstances, in the as defense the trial could have grading lawyers’ we counsel acted . . . are not interested performances; process in whether adversarial we are interested adequately. [Cit.]” trial, fact, worked (3) (a) Zant, 263 Ga. “The Jefferson proper attorney simply performance reasonable- measure of remains prevailing professional ness norms.” Strickland under (III) (A). supra cursory review the order on remand Even a habeas court’s apply shows a failure to this standard. Rather than convincing addressing producing clear and evi- Bennett’s burden ineffectiveness, the habeas court con- dence of his defense counsel’s cluded that supra, “strongly [this Court] indicated holding incompetency attor- would affirm neys” Defendant’s trial upon and, conclusion, then based indicated “with interpreta- reluctance,” some it would “so hold.” The authorizing, effect, tion a direction of ver- *4 clearly erroneous, dict for Bennett his constitutional claim as on nothing opinion intimating in our should our could or be construed opinion lawyer’s performance. ultimate To the on the reasonableness of contrary, necessary the remand was the habeas because regard- all court’s initial failure to consider of Bennett’s contentions ing precluded the of this Court from ineffectiveness counsel any undeveloped reaching the conclusion as to issue. Since particular permit record matter would not us to hold that on effective, trial counsel was or was not we remanded the to case for the habeas court determine whether defense counsel was presenting testimony ineffective in Dr. Harris’ once be- apparent incompetent, came that he was to seek a procure continuance to the assistance another guilt/innocence penalty phases the remainder of the the any trial, of the claims asserted but not consid- ered. supra appears Bennett, at 590 It habeas court remand was
incorrectly assumed that on issue whether the trial court itself was aware the witness’s manifest incapacity. knowledge applicable inquiry However, the is not the trial court’s condition,
of Dr. Harris’s but whether the failure Ben- ruling nett’s trial to counsel invoke a from the trial court form legal of a motion for continuance or was otherwise such ineffective representation process. as to constitute a constitutional denial of due (11th 1992) (cited Clisby Jones, See 960 F2d fn. Cir. (2)). approval supra with at 590 The habeas light whether, “court must. the identified fessionally competent . . circumstances, determine all the range pro- acts omissions were outside the wide (Emphasis supplied.) assistance.” (III) (A). Washington, supra yet per- at 690 The habeas court has to mandatory obligation form its address the issue the reasonable- ness trial counsel’s failure to seek continuance or otherwise react testimony. my opinion, opinion to Dr. Harris’s recognize In fails to palpable deficiency this clear and erroneous in the remand order. assuming
Moreover, the habeas court had made counsel, determination as to the of trial ineffectiveness Ben still nett would not be entitled to relief unless he also made suffi “ showing prejudice prong. by counsel, cient as to the An error even if professionally setting judg judg unreasonable, does not warrant proceeding ment of a criminal if the error had no effect [Cit.]” ment.’ Cruz-Padillo, Goodwin v. analysis solely “[A]n focusing on mere outcome determi proceeding nation, without attention to whether result of the fundamentally unreliable, unfair or is defective.” Lockhart v. Fret well, at 369. is not entitled habeas relief proves lawyer unless until he that his trial was ineffective and probability unpro that there is a “reasonable but for counsel’s proceeding errors, fessional the result of the have differ would been probability probability Aent. reasonable is a sufficient to undermine confidence the outcome.” Strickland v. (III) (B). Turpin Bennett, court concluded that Dr. Har- performance prejudicial However,
ris’s defense. that deter- *5 perfor- prejudicial and immaterial, since the deficient mination attorney basis of a trial constitutes the sole mance of a defendant’s A of assistance of counsel. review constitutional claim of ineffective simply that the habeas court the order entered on remand discloses response inquiry whether the of not address the relevant did professionally performance, if unreason- Dr. Harris’s counsel to able, setting Ben- as to authorize the outcome so making preju- this and death sentence. In nett’s murder conviction totality “must the determination, the habeas court consider dice judge jury.” before the or Strickland the evidence (III) (B). impera- supra I it is connection, this believe that In only Bennett’s the fact that Dr. Harris was not tive that we consider insanity that, law, a matter of it was as to the defense as witness not ineffective testify. Turpin Dr. for trial counsel to call Harris therefore, the habeas court at required there was a reasonable to determine whether was probability insanity jury accepted Bennett’s the would have imposed a life but for the failure of trial counsel defense or sentence some of relief after Dr. to move for continuance seek other form considering began testifying, did addi- that the hear from Harris testimony, lay Harris’s witnesses and that Dr. tional although damaging, was admissible. enough the
It is not for the defendant show that errors proceed- effect on the outcome had some conceivable ing. Virtually every act would meet or omission of counsel every conceivably test, [cit.], and not error that could reliability have influenced the outcome undermines the result of the proceeding. (III) (B). dispositive prejudice, to address issue appears impression having
habeas court to have been under the previously the trial reached the conclusion that result of unjust, it was authorized to set aside conviction and sen- Bennett’s determining responsible tence on remand without who was for that clearly erroneous, result. This is since habeas relief was authorized only if from the the conviction sentence resulted no of Bennett’s trial counsel and one else. Because the assistance prejudice not habeas court did prong make determination of cognizable coun- claim ineffective assistance of incorrectly majority sel, I that the affirms the order entered submit by after the habeas court remand. grant petitioner
A court must relief if a demonstrates his petitioner, However, warden, well entitlement thereto. as hearing is entitled to a at which the constitutional claims are applicable resolved accordance with standards and yet authorities. habeas court has not considered claim of ineffective assistance trial counsel accordance with those By affirming standards and authorities. the deficient order entered give case, on date of remand fails to effect to the man- *6 v. Bennett that the habeas court resolve the Sixth appropriate Amendment claim in an I manner. dissent Case No. S99A1703. Because claim of ineffective assistance of clearly proper independent counsel affirming does not form a basis for order, habeas court’s mischaracterizes cross-appeal. Case No. S99X1747 as a moot defensive dissent to the dismissal of that case. I Thus, also joins I am authorized state that Justice Hunstein in this dis- sent. 18, January 200 Decided 11, February 2000.
Reconsideration denied Attorney Boleyn, Baker, General, E. Thurbert Susan V. Senior Attorney appellant. General, Assistant for King Spalding, Douglas Stephen & Cowen, W. Gilfillan, S. for appellee.
S99A1758. ABRAMSv. THE STATE. Justice. Sears, Appellant Roosevelt Abrams was convicted of malice murder stabbing the life in death of sister, Johnson, Rosie and was sentenced to
prison.1 appeal, things, among contends, that the permitting Douglas testify trial court erred in Katrina about state- ments that conclude, Abrams made to her at the crime scene. We permitting Douglas however, that the trial court not err in did to tes- tify. Finding no contentions, merit Abrams’s other we affirm. February 18, 2, 1998, The crime occurred on Abrams on 1998. was indicted June jury 17-18, was tried guilty before on November 1998. The returned verdict of on 18, November prison and the trial court sentenced Abrams to life in November on 1998. reporter Abrams filed a motion new trial on December The 1998. court certified the transcript July 7,1999. on August The trial court denied Abrams’s motion for new trial on appeal August and Abrams filed a appeal notice of on 1999. was docketed in August 25,1999, 18,1999. and was submitted for decision on briefs on October