*1 226 drawn being the blood witnessed the officer who
mony lab ana- the state crime and from crime lab the state it to delivered find it testimony, we this reviewing After sample. tested the lyst sample. Price’s results to test the blood to connect sufficient results, showed evidence test to the blood In addition 6. driving Price speeding officer observed police a DeKalb after license, Price her asked for the officer her. When unsafely, stopped it. As she to retrieve the car trunk, and out of got it said was and had to lean unsteadily car, Price walked the rear of walked alcohol also smelled The officer her maintain balance. the car to most favorable light the evidence reviewing After on her. sobriety the field considering without guilt, determination jury’s have found trier of fact could rational that a tests,16 conclude we doubt.17 a reasonable charged beyond of the crimes guilty Price Justices concur. All the reversed. Judgment 19, 1998 March Decided April 1,1998. denied Reconsiderations Chestney, appellant. Robert W. Jones, Howard, A. Solicitor, Lisa Bowden, Jr., W. T. Ralph Cliff Solicitors, for appellee.
Assistant
CHRISTENSON; and
versa.
vice
TURPIN v.
S97A1435, S97X1438.
216)
(497 SE2d
Thompson,
Justice.
and armed rob
of murder
was convicted
Christenson
Lynn
Scott
affirmed Christen-
death. This Court
1990, and sentenced to
bery in
(402 SE2d
State,
In 1995 Christenson filed this action, habeas raising numerous claims, including ineffective assistance of counsel. The habeas court ruled many of Christenson’s claims were not subject habeas *2 review because they had been addressed on direct and that appeal, many other claims had been procedurally defaulted. The habeas court, however, vacated Christenson’s death sentence because his trial counsel had been ineffective the preparation for and the con- duct of the sentencing phase. The State appeals habeas court’s vacation of sentence, S97A1435, Case No. and Christenson cross- appeals habeas court’s conviction, affirmance of his Case No. S97X1438. We affirm.
The factual background for Christenson’s conviction and sen- (1). tence is set out in I, Christenson supra at Briefly summarized, the evidence adduced at trial victim, showed that the Albert L. Oliver III, was last seen driving Toyota sports vehicle, utility with Chris- tenson in seat, the passenger’s on July 1989. Christenson was arrested for stealing gas Lonoke, Arkansas, on July 1989. He was alone and driving Oliver’s vehicle. There were bloodstains in the vehicle and on some of Christenson’s clothes. After body Oliver’s was discovered near Columbus, Georgia, Christenson admitted to killing Oliver in four separate statements: statement, written two audio- statements, taped and a statement videotaped which included Chris- tenson’s reenactment of the crime. According statements, to his (with Christenson hitched a ride with Oliver whom he was acquainted), tried to take his vehicle at gunpoint, struggled with Oli- ver for the weapon, and shot Oliver and dumped his in a rural body area.
Claims That Are Barred 1. Christenson raised numerous claims of alleged prosecutorial misconduct in his habeas petition regarding both the guilt/innocence and sentencing phases of his trial. He claimed the prosecutor made improper closing arguments, including comments regarding Chris- remorse, tenson’s lack of failure to testify, prejudicial record, matters outside the the prosecutor’s personal religious beliefs, and the impact crime on the In family. victim’s addi- tion, Christenson claimed prosecutorial misconduct because the State questioned mitigation witnesses about Christenson’s prior offenses without providing pretrial Christenson with notice of the intent to raise these offenses in the penalty phase.
The habeas
correctly
court
ruled that
these claims are barred. It
“[ajfter
is well settled that
review the
appellate
issue[ ]
same
will
228
(204
corpus.”
Ault,
on
Elrod v.
not habeas be reviewed (1974). 176) and decided on Issues which were raised direct SE2d appeal corpus proceedings. in habeas Gunter v. cannot be reasserted (348 (1) (1986); Gibby, Hickman, Gaither Ga. (2) already This Court has consid- Ga. closing arguments in the State’s on direct ered the existence appeal (7). error adversely supra I, at and ruled to Christenson. Christenson questions penalty phase regarding addition, the State’s by previously prior offenses were addressed this Court Christenson’s and (2). supra proper. II, find at We no error. found to be Christenson by refusing alleges that the trial court erred 2. Christenson voluntary manslaughter. charge This claim on appeal direct and this Court held that the evidence did addressed on charge voluntary manslaughter. support I, Christenson (6). supra; Gunter, Therefore, habeas claim is barred. supra. Elrod, by failing the trial court erred
3. Christenson claims prior questions prevent and to exclude about Christenson’s offenses by argument. closing improper comments the State These prosecu- as habeas claims were also characterized *3 1 and are for the same torial misconduct Division they barred reason: litigated appeal. on direct Id. were alleges by denying the trial court him 4. Christenson erred funds psychiatrist. appeal This claim was on direct retain considered adversely supra ruled I, and this to Christenson. Christenson Court (c). (1) supra; Therefore, Gunter, at claim this habeas is barred. supra. Elrod, previously This Court held that Christenson’s custodial state- 5. (3). voluntary supra I,
ments and admissible. Christenson at were The State also introduced a custodial statement made Christen- prior aggravation. son, theft, arrest car as after a evidence This admissibility hearing for a Court remanded Jackson-Denno on the of (9), supra statement, I, at and later held that the Christenson (2). supra II, at statement was admissible. Christenson Since the admissibility already of these statements was addressed on direct appeal, grounds supra; Gunter, claim these a habeas on is barred. supra. Elrod, complaints regarding qualification
6. Christenson’s habeas of jurors accordingly, prospective appeal and, on were addressed direct (4); supra I, are at id. barred. Christenson inquiry The failure of the trial court to conduct a Batson was 7. (5). appeal. supra Therefore, I, addressed on direct Christenson at supra; supra. Gunter, Elrod, this claim is barred. previously This Court determined that Christenson’s
8. has disproportionate death sentence to other death sentences. (3). II, Procedurally Claims That Are Defaulted complains corpus petition 9. Christenson in his habeas about alleged prosecutorial several instances of misconduct which were not appeal. Specifically, addressed on direct Christenson claims that the prosecutor prior dealings should have recused himself due to improperly Christenson, that he commented on several matters evidence, outside the and that he mischaracterized the evidence dur- ing cross-examination. Christenson could have raised these issues on appeal Georgia, direct error but he failed to do so. the failure to raise an timely generally petitioner waives a habeas claim unless the prejudice can meet the cause and test:
[A] timely objection any alleged failure to make error or deficiency pursue by appeal ordinarily or to the same on will preclude corpus. review writ of However, habeas an oth- procedural preclude erwise valid bar will not a habeas corpus considering alleged court from constitutional errors showing adequate or if deficiencies there shall abe of cause object pursue appeal showing for failure to or to and a prejudice actual to the accused. (4) (336 754) (1985); Hardin,
Black v.
“worked 828; Id. at of dimensions.” trial with error constitutional entire (102 Frady, 1584, 71 U. 170 SC LE2d 456 S. States v. United 816) (1982). procedu- cause to his show sufficient excuse Christenson cannot any presents that external factors no He evidence ral default. any ability impeded claims, these and the fac- to of his counsel’s raise legal him on these claims was available to direct basis of tual only alleged appeal. of counsel trial counsel resorts to ineffectiveness Although showing support of cause. Christenson’s to was tenson preparation trial,1 and conduct of his Chris- deficient in the appeal2 appellate counsel for his direct received additional any by appellate point counsel not to errors or omissions and he does might Strickland v. ineffective assistance under constitute which merely Washington. if Instead, that Court asserts concludes on direct prosecutorial not misconduct claims were raised that pro- appellate appeal, then we must hold that Christenson’s is to cause. This ineffective assistance sufficient constitute vided incorrect statement recognize “[T]he fact failed of the law. mere that counsel to legal claim, raise the factual or basis for a or failed to recognizing procedu- despite it, constitute for a does not cause claim Murray Carrier, All U. S. SC 91 ral default.” showing there no Christenson’s LE2d Since appellate prosecutorial ineffective, counsel was mis- appeal procedur- claims not on direct are conduct which were raised ally defaulted. alleges trial
10. Christenson also numerous errors court failing grant that include: to continuance the start refusing grant investigator, improperly hire to funds to a defense restricting failing Brady require comply dire, voir the State charge, failing Maryland, giving an erroneous to exclude photos videotape prejudicial evidence, such as the reenactment body. appeal of direct of the victim’s None these claims were raised on opinion, and, for the same reasons enumerated in Division 9 of this procedu- Christenson does not show sufficient cause overcome ral default.3 appeal Georgia
11. Christenson asserts his habeas penalty seq., § statutes, OCGA 17-10-30 et and the Unified death ineffective counsel is assistance of Christenson’s trial addressed Division 12. supplemented appeal by attorneys direct Christenson’s trial counsel was James A. McNabb, McGovern, Messner, Robinson, Stephen Stephen Michael Frederick M. G. B. Fulbright Bright, Norby Charlotta and the law firm & Jaworski. object alleged prosecutorial to the The failure counsel to miscon may separate support duct or trial court errors constitute for his claim of ineffective assis counsel, procedurally 12. which and is in Division tance is defaulted addressed *5 Appeal are These could been unconstitutional. claims have raised in appeal showing Christenson’s direct were not. There no of is procedurally Turpin, supra so cause 825; Black, these claims are defaulted. at supra. Assistance Counsel
Ineffective
of
alleges
provided
12. Christenson
that his trial counsel
him with
preparation
ineffective assistance of counsel
for and con-
Georgia
of his
This
duct
trial.
claim is neither
nor
barred
defaulted.
provides
law
that
ineffective assistance of counsel claim need not
longer represents
be raised until
time
trial
such
as
counsel no
(401
733) (1991).
Kelso,
defendant. White v.
appeals. supra II, See 639; I, Christenson Christenson representation, When Bunn 93. Mr. ceased his habeas counsel raised the of counsel, claim ineffective assistance satisfying possible the rule this claim must raised be at the first post-conviction opportunity. supra. White, Ineffective assistance counsel is claim. therefore barred or and remains a defaulted viable grounded
claimA of ineffective assistance of counsel is in the general right guaranteed by to criminal defendants Sixth to the I, Amendment United States Constitution Article Georgia apply Appellate Section I of Constitution. courts a two- pronged performance test to determine if counsel’s was ineffective as require of a reversal conviction or a death sentence: performance
First, the defendant must show that counsel’s requires showing was deficient. This that counsel made functioning errors so serious that counsel was not as the guaranteed “counsel” ment. defendant Sixth Amend- Second, the defendant must show the deficient prejudiced performance requires This the defense. show- ing deprive that counsel’s errors were so serious as to defendant a fair trial result whose is reliable. showings, Unless cannot a defendant makes both it be said that the conviction or death sentence resulted a break- attorney Kirby II, apparently trial was Mr. L. Christenson’s other William ceased representing counsel,” after the trial. to “trial “Christenson’s coun References sel,” Kirby. or “defense counsel” include both Mr. Bunn and Mr. that renders the result unre- adversary process
down liable. Court at 687. of Geor- Washington, supra Supreme
Strickland
Francis,
test in
In Christenson’s II Kirby repre- Mr. A. Bunn and Mr. William L. to appointed Richard that, Trial counsel made a determination based sent the defendant. evidence, there would be a conviction and the cru- likely the Mr. Although cial the penalty phase. trial would be phase case, a alone a death experience trying pen- Bunn had no murder let responsible Mr. be alty case, they Kirby decided that would primarily Mr. primarily for the and Bunn would be guilt/innocence phase the trial took in March 1990. responsible phase. for penalty place eight appointment Trial counsel had months from approximately trial, investigation conducted and they preparation until little case the eve of trial. trial coun- until October issues, guilt/innocence sel filed a number of motions to such relating a the investigator suppress as motion to hire an and motion to motion defendant’s statements. trial court denied Christenson’s February and it after this denial investigator only to law that Christenson’s traveled Arkansas to interview initial enforcement witnesses to Christenson’s arrest state- less trip This took than two weeks before investigatory place ments. hearing admissibility trial and the Jackson-Denno on the after filed Christenson’s Although statements. trial counsel they did suppress motion to defendant’s statements October 1990. At that hearing February to on this issue until nothing obtain hearing motion Christenson’s counsel filed a to continue hearing, “had an to to Arkansas” and opportunity get because unimpressed court, interview witnesses in that state. The trial reason, this hearing. denied motion for a continuance and conducted the request, delayed Then, at counsel’s the trial court defense ruling admissibility day on the statements’ until the business before begin. pretrial trial was to At that conference, final the trial court ruled that the statements were admissible. Christenson’s counsel prepared proceed then informed the trial court that were not trial court took to be another motion for continu- ance, which it denied. Kirby guilt/innocence portion
Mr. tried the trial. In his opening Kirby statement, Mr. told that the defense would drug-dealing Oliver, victim, show that Mr. had been a homosex- by attempt- ual who had initiated the events which led to his death ing drugs. progressed, apparent to trade sex for As the it became virtually support that trial counsel had ization of the victim. The no evidence to this character-
only support “evidence” the defense the- ory that Oliver was a homosexual was some condoms found in his sports utility teenage vehicle, males, some friends were and the unmarried, fact that he was old lived alone.5 There was absolutely support theory drug no evidence to the defense of a deal gone drugs drug bad because no or residue were found in Oliver’s Kirby apartment. persisted truck or Mr. nonetheless with this theme *7 argument closing by laying telling on these out tenuous “facts” and jury you may.” jury the “come to to what conclusions The convicted robbery. Christenson malice murder and armed Pretermitting question representation the of defective in the guilt/innocence phase, by ruling find we the habeas did court not err prejudice prong that Christenson cannot meet the of Strickland. Although preparation Christenson’s counsel’s for and conduct of the guilt/innocence phase omissions, included errors and the evidence of guilt overwhelming. jury heard, Christenson’s was The read and saw killing separate admit statements, Christenson to Oliver several later to I, all (3). held be admissible this Court. Christenson at person Christenson last Oliver, was the seen with Christen- and following day driving son was arrested the Oliver’s truck in another state. was There blood the truck and on Christenson’s clothes. probability Christenson cannot that show there was a reasonable that, but trial errors, for counsel’s he would not have been convicted. supra; supra. Strickland, Smith, See We therefore affirm the habeas fact, theory people the heard evidence to contradict this one of the because who body girl Also, found was Oliver’s described as Oliver’s friend. state former — drugs consistently ments at introduced trial did not mention or sex Christenson had that he a stated hitched ride with Oliver so could take he his vehicle. ruling the evidence on Christenson’s convictions.6 Because
court’s penalty phase guilt/innocence carries over into the introduced phase, guilt/innocence in the some of trial counsel’s deficiencies they penalty phase phase to the extent also addressed will be prejudiced and his sentence unreliable. rendered
(B) Penalty Phase recognized previously mentioned, that the the counsel, Defense as considering phase phase penalty would be the crucial pointing guilt. Bunn, Mr. amount of evidence although to any experience trying penalty case, a death was he lacked assembling presenting mitigating responsible primarily for and appointment, that trial counsel noticed Chris- Soon after evidence. tenson seemed aloof rely his fam- detached; often get ily, especially father, to him to communicate with them. Trial psychiatric filed a motion for evaluation because counsel “expert help” some and because Christenson needed believed they might that mental health issues be relevant trial. believed recognized might Although trial counsel that mental health be mit- sentencing phase, Kirby primarily igating factor in the Mr. was investigating developing health mental evi- involved dence. Trial more counsel believed that this evidence would be rele- guilt/innocence competency issues, such as to stand trial or a vant to verdict guilty mentally ill. hearing psychiatric evaluation, At the on the for motion presented patient of Christenson’s from when he some files Bradley placed private psychiatric hospital, Center, had been (three years in-patient treatment when he fifteen old murder).7 undergo psy- Christenson had been ordered to before property crimes chiatric treatment due to several as a he had committed juvenile. presented testimony also of Christen- Trial counsel drug problem father, that his had a son’s suffered stated son granted changes.” The trial court the motion in “mood ability appreciate the nature of order determine Christenson’s charges against him and to in his assist defense. history psychiatric problems Christenson has extensive diagnosis Bradley Center files contained a and substance abuse. *8 6 failing develop Christenson also claims that counsel was ineffective in evi voluntary support manslaughter. merit. a This is without dence to claim of contention and that initiated an armed trial evidence the available information showed victim, robbery by pointing gun provocation, killed the victim at the without and then manslaughter voluntary charge A circum he resisted. is not warranted under these when (1) (295 State, I, (6); 249 See Christenson Horton v. Ga. 871 stances. (1982); (5) (85 State, 335 Fields hearing they they where Trial counsel testified at the habeas were unsure gave these files or them the files. obtained dysthymic disorder, abuse, of socialized, alcohol disorder, conduct personality and under-
non-aggressive, narcissistic disorder with fea- sociopathy. genetic tures of The files also contained information on a disposition family toward alcohol abuse in the Christenson and depression, anger, abuse, Christenson’s own extensive alcohol frus- impulse “poor reality testing.” tration, lack of control and The Brad- ley Psychological Report Center noted that Christenson’s alcohol abuse sometimes led to blackouts, that Christenson had an underde- “ability veloped cognitive integrating to utilize his abstractive and very “perceptual organizational skills,” and that he had weak and processes adequately discriminating delineating ... in terms of reality.” Bradley gave poor the external prognosis Center Christenson a recovery lengthy treatment, recommended parents coverage Christenson’s reached the limits of their insurance after six weeks and removed Christenson from the Center. by order,
Pursuant to the trial court’s Christenson was evaluated psychologist, Bailey-Smith, a state Christenson was Dr. Karen who determined that
competent legally to stand trial and had been sane competency when committed the crimes. In addition to her deter- Bailey-Smith diagnosed mination, Dr. Christenson with a Personal- ity Specified Psychoactive Disorder Not Otherwise Substance Specified. Abuse Not Otherwise She further noted a dramatic twenty-point IQ decline the three since his stay Bradley bright-normal low-average Center, at the intel- ligence, drug usage. which she attributed to
Despite impaired the indications of Christenson’s mental condi- investigation tion, trial counsel did no further of his mental health. complete Bradley Trial counsel never obtained the Center files nor they entirety portions they did one contacted the read the of the file did have. No
Bradley They Center clinical staff. also did not con- Bailey-Smith opinion mitigation Dr. tact about her issues or con- using report.8 sider her Trial counsel did file a motion for funds to private psychiatrist psychiatric hire a and a second motion for evalu- they argue specific findings by Bradley ation but or Dr. did Center Bailey-Smith, other than IQ. the decline in The trial court any denied the motions.9 denial, After this trial counsel did not seek obtaining expert They sought other means of advice or resources of assistance. never
any capital organi- criminal defense or defense Trial up Bailey-Smith’s diagnosis counsel admitted that did not even look Dr. the DSM-III. Kirby primary purpose requesting Mr. testified psychiatric that his evaluation health, was not to “ploy” determine mental but as a to “confuse the issues” and psychiatrist to ensure that Milledgeville facility. Christenson was examined a state Kirby psychiatrists Mr. poor stated that these made witnesses for the State because foreign patients very tended to have accents and did not treat their well. *9 they hearing Georgia, although at the admitted habeas zations They organizations. of these did not contact were aware pro support, any professionals reduced fee or bono mental health They completely abandoned the mental health issue or for referrals. it at and did not use trial. hearing, presented corpus the testi-
At the habeas mony experts. psychiatrist health A testified that of two mental anxiety by “pervasive a had an disorder characterized Christenson sense of nervousness or environment.” compulsive
anxiety non-threatening [even] normal, in a He stated that Christenson had an obsessive- also impulse-control According disorder. disorder and an essentially psychiatrist, the Christenson was non-confrontational violence) (none prior and, due to his mental of his offenses involved disorders, he would have been unable to make rational decisions dur- ing struggle shooting. and the
A licensed clinical social worker testified that Christenson’s fam- ily history of alcoholism and mental illness. All four of Chris- has grandparents paternal and and tenson’s were alcoholics his mother grandmother, himself, like Christenson had been institutionalized in hospitals. depression; mother suffered from mental when Christenson was nine old she had locked herself in a car addition, and threatened to shoot herself.10 Christenson was largely estranged parents and from uncommunicative with his and relationship years. Although their strained for the social been family members, worker interviewed Christenson and some of his regarding much of her information Christenson’s childhood family history Bradley portions troubled came Center files apparently that trial counsel had chose to not reviewed. Trial counsel instead
rely largely father, on Christenson’s identified the Brad- ley estranged son, Center files as from his for information on Chris- family history tenson’s childhood and ing and for assistance communicat- surprisingly, with their client. Not trial counsel testified at the hearing habeas were unaware of extent of Christen- psychological problems completely preva- son’s unaware of the family. lence of mental illness and in Christenson’s substance abuse penalty phase In the the State introduced one wit- aggravation. ness in Police The witness was Detective Cox of the Columbus
Department. transporting He testified that while he was Tennessee, Jackson, Christenson back to Columbus from Christenson had been arrested after where stealing Georgia, a truck 10According psychiatrist’s testimony, to affidavits and the Christenson’s mother was extremely overbearing telling response and critical her her children. Most is her son’s arrest for the murder. She admitted that she “wanted Scott to be executed as soon as possible.” going Christenson had told him that “he was rob individual get keys [to truck] [the owner] and that he would kill if get keys.” appear report he didn’t This statement did not completed Georgia that Detective Cox after he returned to year day later, Christenson. One arrested for and one after Christenson was murder, Oliver’s Detective Cox remembered that Chris- prepared supple- tenson had made this statement. Cox Detective report supplemental report mental and it was from this that he testi- though fied about Christenson’s counsel, statement. Trial aware of discrepancy reports, impeach between the two failed to Detective *10 report by Cox with the first that lacked a statement Christensoii. The previously statement that Christenson had kill intended to a truck challenge. owner a vehicle theft was allowed without presented mitiga- Trial counsel 19 witnesses and 27 exhibits as penalty phase. tion evidence in the The witnesses included Christen- parents, grandfather, League son’s aunts, uncles, cousins and Little strategy baseball coaches. Trial counsel testified that their was to prepared by asking “humanize” their client and these witnesses them happy to relate stories about “how Scott’s childhood was and nor- very briefly, mal testified, childhood.”The witnesses most that Chris- good grandmother had tenson when been a child until his beloved died years Then, Christenson was old. Christenson became with- grades dropped began get drawn, his and he to into trouble due to drugs. mitigation mainly trophies exhibits were baseball and family photographs. key directly A defense exhibit contradicted the family clearly witnesses: Christenson’s school records showed that grades began plunge years two before the death of grandmother. mitigation poorly prepared witnesses were for their testi- mony. Billing testimony records and trial counsel’s habeas indicate begin contacting mitigation that trial counsel did not until the week before trial. Some most witnesses
mitigation witnesses were con- expected testimony they telephoned tacted about their until were night they testify. result, trial counsel the mitigation before were to As a adequately prepared witnesses were not for the DA’s questions testing DA, cross-examination. The in a series of the wit- knowledge reputation character, ness’ of the defendant’s asked repeatedly specific property the witnesses about almost dozen two offenses that committed, Christenson had most from when was juvenile. they The witnesses forced admit were had heard that they Christenson had been some trouble but did not know about juvenile League his extensive and criminal record.11The Little base- result, Christenson was 18 old when he was arrested Oliver’s murder. As a coaches, fact, admitted had had almost no contact with ball hearing, an adolescent. At the Christenson since he was habeas also admitted were not aware of extent Christen- though they juvenile Christenson had been son’s record. Even knew juvenile, they as a did not seek to obtain a trouble with law juvenile specific copy of his record under the mistaken belief (trial juvenile offenses could not be referred to cross-examination point). State, counsel did no research on this See Burrell v. (7) (376 mitigation 841, 844 Some witnesses were testimony that, also forced to admit based on their direct of Christen- supportive family, happy had son’s childhood and been many given opportunities squander in life but had decided to them. closing repeatedly The DA hammered home this theme in his argument: despite being caring parents Christenson, blessed with every advantage, opportunities wasted his become a drug prosecutor argued career criminal and a addict. The also the last of Christenson’s five shots into Oliver had the fatal been giving ability killing stop shot,12 Christenson the short of the vic- object although argument plainly tim. Trial counsel did not unsupported by autopsy report examiner, and the medical way there testified was no accurate to determine the order of the argued remorse, The DA shots. also the defendant’s lack of that he “fish-eyed” during Bradley had sat there the trial. The Center files explanation unresponsive contained an (due for Christenson’s demeanor *11 simply to mental his disorders would withdraw stressful situations) jury nothing but the of course heard Christenson’s about psychological background. Lastly, jury DA reminded the wholly unsup- vicious, Christenson’s main trial defense had been ported attack on the dead victim’s character. argued by telling jury
Mr. Bunn for the defense. He started renege promise jury during that he had to on a made Mr. Kirby’s opening explain statement, that the defense would be able why aggrieved brought sad and “two families” been into the proceeded jury, courtroom for this trial. He then to tell the on three separate explanation occasions, that he had no for actions: wrong
We don’t know Scott. what went We don’t know happened along way. what to Scott . . . prior juvenile prior mostly burglaries
most of his offenses were offenses. offenses were theft). (including and thefts auto 12 — Oliver had been shot five times four wounds were minor to his extremities wounds fifth, and the fatal wound his back. was to
239 happened age don’t We When look at Scott know what to Scott after the of 14. just every- Christenson, I I wonder like happened. happened. one else what I don’t know . . . what you boy potential up I can’t tell courtroom convicted of murder and armed how a with his ended
robbery. When I explain life, look at I his can’t it.
Mr. Bunn stated that Christenson had “no excuses” for what he had jury you telling mercy” done. He told the “I’mnot that Scott deserves mercy only family. and asked for for Christenson’s returned a recommendation of death.
Although trial counsel is afforded tremendous deference over
strategy,
strategy
matters of trial
be
the decision to select a trial
must
reasonably supported
range
professionally
and within the wide
(11th
competent
Zant,
assistance. See
1445,
Devier v.
3 F3d
1453
Cir.
1993);
supra
Strickland,
at 690. Trial counsel testified that
drug usage
chose to “humanize” their client because Christenson’s
personality
go
and “narcissistic”
County.
would not
over well in Harris
selecting strategy,
However, before
counsel must conduct a
investigation
background mitiga-
reasonable
into the defendant’s
for
sentencing.
tion
Zant,
316,
evidence to use at
See
263 Ga.
Jefferson
(431
110) (1993);
319-320
(11th
Thomas,
1501,
Baxter v.
45 F3d
(11th
1995);
Singletary,
Cir.
Bush v.
988 F2d
Cir.
1993) (“After
adequate investigation,
may reasonably
present mitigating
sentencing”).
decide not to
character evidence at
attorney
every
An
is not ineffective because he fails to follow
eviden-
tiary
attorney’s strategic
lead, but an
decision is not reasonable
“
attorney
investigate
options
‘when the
has failed to
amake
”
supra, quoting
Baxter,
reasonable choice between them.’
Horton v.
(11th
1991).
Zant,
941 F2d
Cir.
The failure to conduct a
investigation may
reasonable
render counsel’s assistance ineffective.
Curry
Baxter,
1514;
Zant,
647) (1988) (counsel
failing
investigate
ineffective
further
cli-
ill).
despite
mentally
ent’s mental health
indications that client was
possessed
regard-
Christenson’s counsel
a wealth of information
ing
psychiatric problems
drug abuse,
which
essentially ignored. This is not a situation where trial counsel was
*12
psychiatric problems
unaware of their client’s
before trial. See Wil-
(7) (368
State,
liams v.
their together did not contact at the last minute. Trial counsel cobbled
241 mitigation already begun. some witnesses until the trial had Wit- put only nesses were on the stand who had limited contact with Christenson in the several before the crime. Witnesses were unprepared for the State’s cross-examination about Christenson’s prior offenses and had to admit that did not know the extent of (at having his criminal Witnesses, record. after testified trial coun- urging) good sel’s about how Christenson was a but troubled kid with supportive family, were forced on cross-examination to validate the deliberately squandered State’s theme that Christenson had his opportunities key in order to become a addition, criminal. In testimony family defense exhibit contradicted the of the witnesses why began about when and to have trouble as an adoles- support closing argument cent. Mr. Bunn could draw no in his mitigation presented; the evidence that trial counsel had he admitted explanation why that the defense had no mitted the crimes or for Christenson had com- why spared, he should be other than to show his family mercy.
Trial counsel committed a number of serious errors that hurt argu- their case for a ment First, sentence less than death. trial counsel’s guilt/innocence phase drug-dealing the that the victim was a any support homosexual, without evidence to assertion, could only prejudiced jury against Young have their client. Zant, See (11th 1982) (competent 677 F2d 798 Cir. counsel would not have gone insanity any support to trial on an defense without evidence to it). attempt impeach Second, Christenson’s counsel did not Detec- aggravation, Cox, tive the sole witness in about his sudden remem- year passed, brance, after a had of Christenson’s comment to him though original report arrest, after an even trial counsel had Cox’s report any and the did not indicate remarks Christenson. Chris- alleged planned tenson’s comment that he had to kill a truck owner during unchallenged. a theft came in Third, defense counsel failed to object to the State’s characterization of the order of the shots that though unsupported by victim, killed the even these comments were permitted argue, the trial evidence. The State was thus without objection, that Christenson had inflicted four non-lethal wounds deciding Lastly, closing argument, before to fire the fatal shot. specifically mercy trial counsel declined to ask for for their client and implied mercy. that their client did not deserve The habeas court determined that trial counsel was deficient preparation sentencing phase for and conduct of the due to inade- quate investigation possible mitigation inadequate evidence and presentation mitigation supra; Curry, supra. Baxter, case. It actually prejudiced by further determined that Christenson was psychiatric properly trial counsel’s errors. Id. The evidence, if investi- gated presented, totally changed evidentiary pic- could have Kemp, Stephens F2d 1515; Baxter,
ture. See
attorney
(11th
(“prejudice
to investi-
failed
where
is clear”
Cir.
present
cli-
adequately
gate
evidence
mental health
client’s
sentencing phase);
Pitts,
problems
Zant v.
mental
ent’s
4) (1993) (trial
failing
pre-
for
ineffective
examinations
mental
retardation where
of mental
sent a defense
retarded). Psychiatric
mentally
mildly
was
provided
that defendant
showed
explanation
jury
may
for Chris-
have
evidence
mitiga-
jury
admitted to
actions; trial counsel
tenson’s
explanation
provided
presented
no
which
tion evidence
statutory aggravating
only
addition,
found
one
the crime.
factor,
robbery.
of an armed
the course
the murder was committed
*14
shooting
not execution-
was
no torture and the
There was
style.
that Christenson
fact,
at trial showed
the evidence
robbery
during
planned
had shot the victim
but
kill
the
the victim
struggle
gun.
the
a
over
supports
that,
court’s conclusion
the habeas
The evidence
representation,
a reasonable
there exists
deficient
trial counsel’s
imprison-
jury
probability
life
have recommended
that
the
would
supra.
That conclusion
Smith,
Strickland,
695;
at
ment. See
(1)
appeal.
Caldwell,
I
submit
both
proposition
majority’s
only
hypothetical
opinion support
presented
effective
a more
trial counsel could have
Christenson’s
imposition
penalty. However, the issue to
of the death
defense to the
presented
actually was
defense which
determined is whether the
be
trial
assistance of
on ineffective
ineffective. In the seminal case
Supreme
“it is
States cautioned
counsel, the
Court of the United
examining
easy
has
after it
court,
counsel’s defense
for a
all too
particular
proved
act or omission
unsuccessful,
that a
to conclude
Washington,
466 U. S.
v.
Strickland
counsel was unreasonable.”
689
674) (1984).
(III) (A)
2052, 80 LE2d
SC
simply
constitutionally
because
ineffective
defense is not rendered
possibility
might
there is
that it
have been more effective than it
actually proved
“[T]he proper
attorney perfor-
to be.
standard for
reasonably
[Cit.]”
mance is that of
effective assistance.
Strickland v.
(III) (A).
Washington, supra at 687
presumption
No
of ineffectiveness attaches because the
imposed the death sentence for the murder which Christenson com-
strong presumption
Indeed,
mitted.
there is
that Christenson
representation.
Washington, supra
received effective
Strickland v.
at
(III)
(5) (d) (478
(A);
State,
689
(1996).
Lowe v.
267 Ga.
SE2d
presumption
counsel is entitled to a
given
effectiveness, and deference must be
to the tactics he deter-
(III)
employ.
Washington, supra
(A);
mined to
Strickland v.
at 689
(2) (467
566) (1996).
State,
Lakes
by making judgments as to what additionally differently. However, should have been done sight wholly or hind- judging is irrelevant in the effectiveness of trial counsel. (III) (A); Washington, supra Francis, Strickland v. at 689 Smith v. (1) (325 362) (1985). Employment hindsight 253 Ga. usually proves wholly at most the fact that unremarkable luxury opportunity with the of time to focus specific parts post-conviction record, resources on of a made inevitably identify shortcomings perfor- counsel will prior may “[I]n retrospect, mance of counsel. . . . one perfection [cit.] always identify shortcomings,” is not the assistance. standard of effective (3) (11th 1995). (II) (A) Cir. “The 1506, 1514 Thomas, v. 46 F3d
Waters the time of trial and under conduct is viewed at reasonableness of the the circumstances Berry [Cits.]” State, 476, 479 of the case. (4) (480 primary trial counsel was conclusion is that Christenson’s failing pursue constitutionally health the mental ineffective for mitigating possible However, it is clear additional factor. issue as a strategic pursuing the made the decision that mental health issue would be less trial counsel jurors than
effective with the local duty “[C]ounsel “humanizing” attempt has a Christenson. an investigations make a reasonable decision make that makes or to reasonable unnecessary.” investigations particular Strickland v. (III) (A). constitutionally Washington, supra It is not ineffec- at 691 pursue which, of otherwise an issue in the estimation tive to fail to reasonable trial strategy.
counsel, an effective trial would be lawyer that no Sometimes, a can make a reasonable decision investigation might produce, he matter wants what case, a certain course. In this counsel were steer clear of community. longtime lawyers local who knew their 1994). (11th Certainly, Rogers Zant, 13 F3d Cir. attorneys position in a than either the Christenson’s trial were better jurors the local court or this Court to determine whether habeas would be more “humanizing” mitigation accept strictly inclined to upon expert testimony strategy as to than one which was also based personality. voluntary drug use and his “narcissistic” voluntary drug psychological communities, use and In some problems mitigation might as circumstances in of a not be considered body times, shot five was con- murder wherein the victim was perpetrator then fled the state in the victim’s stolen cealed and the jury believed that the local would not read- truck. Since trial counsel upon ily accept part a defense based whole or Christenson’s volun- tary psychological problems, argued drug it could use and his be legal representation had it have an act of ineffective would been counsel nevertheless asserted that defense.
[Slacking defenses can undercut with the different credibility, likelihood team’s which is essential to a defense advocacy requires [Cits.] [G]ood . the win- of success. nowing multiplicity . . *16 stressing arguments in others: out of some favor of arguments defenses hints at the lack of or [Cit.] any in one. confidence Zant,
Rogers supra at 388. Accordingly, Christenson’s death sen- tence is being reversed for the anomalous reason that his trial coun- sel failed to pursue which, tactic it, elected to follow could be in urged post-conviction proceedings as of their example ineffectiveness.
The habeas court and majority purport to find other instances of ineffectiveness on part of Christenson’s trial counsel. I submit that all of these instances evidence the unauthorized sec- ond-guessing of trial counsel’s tactical decisions and the application of an erroneous presumption those tactical decisions were inef- fective merely because were unsuccessful. The fundamental error the habeas court’s order which the majority perpetuates is this failure “to eliminate the distorting effects of . . .” hindsight. (III) (A). Strickland v. Washington, at 689 supra law of this state authorizes imposition the death penalty the crime of mur- der and there are some murder cases which that penalty is autho- rized “[e]ven if many reasonable lawyers would not have done as defense counsel did at trial. Zant, . . .”Rogers v. at 386. In my opinion, this is one of those Therefore, cases. I respectfully dissent.
I am authorized to state that Justice joins Hunstein in this opinion. 16, 1998 Decided March April 1,1998.
Reconsideration denied Gray J. Conger, District Attorney, Circuit, Chattahoochee Baker, General, Thurhert E. Attorney Boleyn, Susan V. Senior Assis- General, tant Attorney Whitaker, Paige General, R. Assistant Attorney for appellant.
Jimmy D. Berry, for appellee.
S97A1659. FLEMING v. THE STATE.
Hunstein, Justice. Maurice Fleming was sentenced to life imprisonment for the fel- ony murder of Robert Franklin Hodges.1 Finding error, no reversible Fleming The homicide occurred on October 1993. was indicted on December Liberty County charges robbery. pre of murder and armed The State filed a penalty Fleming indictment notice of intent to seek the death December 1993. was tried County jury guilty felony before a robbery Screven and found murder and armed on June 21,1996. imprisonment 22,1996. returned a sentence of life on June The trial court