When Doug disappeared on Friday night, Feb. 8, Gissendaner professed to be at a "total loss" and said she was racking her brain to figure out what happened. She wondered aloud if he had stopped to help a motorist and then was robbed or hurt.

All along, authorities say, Gissendaner knew her husband was dead. Her statement, does not specify when she learned the truth.

Doug Gissendaner's torched car was found Feb. 9 in Dacula, and state game wardens looking for poachers found his body 11 days later.

Lawyers on both sides refused to discuss the case, citing a pending motion by the defense to move the trial because of heavy pre-trial publicity.

District Attorney Danny Porter said gender bias isn't the reason his office rarely seeks the death penalty against women; they simply commit fewer murders than men. Porter said he cannot think of a case in which a woman committed a murder that qualified for the death penalty where his office didn't seek it.

But Stephen Bright, director of the Southern Center for Human Rights, said Porter overreached in seeking the death penalty against Gissendaner, probably in an effort to get her to plead guilty or to obtain a sentence of life without parole. That sentence can be considered only if prosecutors ask for execution.

"This kind of case is not one of those truly extraordinary cases for which the death penalty is reserved," he said. "Usually the women they go for it against are serial killers, people who are a danger to the society at large.

"Tragically, there's a lot of domestic violence in this country," he continued. "But usually those people are a danger to the person they're involved with, not society generally."

Supreme Court of Georgia

GISSENDANER v. THE STATE.

S00P0289.

(272 Ga. 704)
(532 SE2d 677)

(2000)

THOMPSON, Justice.

Murder. Gwinnett Superior Court. Before Judge Stark, Senior Judge.

Kelly Renee Gissendaner was convicted of the malice murder of her husband, Douglas Morgan Gissendaner. 1 The jury fixed Gissendaner's sentence at death, finding as statutory aggravating circumstances that the murder was committed during the commission of kidnapping with bodily injury, a capital felony, and that Gissendaner caused or directed another to commit the murder. OCGA 17-10-30 (b) (2) and (6). For the reasons set forth below, we affirm both the conviction and the death sentence.

1. Gissendaner and the victim had been married, divorced, remarried, separated, and reunited between 1989 and 1997. Ms. Gissendaner was in a relationship with Gregory Bruce Owen and at one point stated to a co-worker that she was unhappy with her husband and in love with Owen.

Prior to Gissendaner's trial, Owen entered an agreement not to seek parole within 25 years, pled guilty, and received a sentence of life in prison. Owen testified at Gissendaner's trial that it was she who first raised the idea of murder and that she later raised the idea again several other times. Owen suggested divorce as an alternative, but Gissendaner insisted upon murder because she believed she would receive insurance money from her husband's death and because she believed he "wouldn't leave [her] alone by just divorcing him." Gissendaner had previously stated to Owen's sister that she intended to use the victim's credit to get a house and then "get rid of him."

During the days leading up to the murder, Gissendaner made 47 telephone calls to Owens and paged him 18 times. Telephone records also showed that the pair were together at a bank of payphones several hours before the murder.

On the evening of February 7, 1997, Gissendaner drove Owen to her family's home, gave him a nightstick and a large knife, and left him inside the home to wait for the victim. Gissendaner then drove to a friend's house, and, upon Gissendaner's insistence that the group keep their plans for the evening, she and her friends went out to a nightclub.

The victim arrived home shortly after 10:00 p.m. Owen confronted the victim from behind, held a knife to his throat, forced him to drive to a remote location, forced him to walk into the woods and kneel, and then killed him by striking him with the nightstick and then stabbing him repeatedly in the back and neck with the knife. As instructed by Gissendaner, Owen took the victim's watch and wedding ring before killing him to make the murder appear like a robbery.

Gissendaner returned home from the nightclub at about the time the murder was being carried out, paged Owen with a numeric signal, and then drove to the crime scene. After inquiring if her husband was dead, she took a flashlight and went toward the body to inspect it. Owen burned the victim's automobile with kerosene provided by Gissendaner, and the pair returned to their respective homes in Gissendaner's automobile. Owen disposed of the nightstick, the knife, a pair of his own jeans, and the victim's stolen jewelry by placing them in the garbage. A pair of Owen's sweat pants also worn on the night of the murder was recovered, however, and DNA analysis of blood found on them showed a likely match with the victim's and Owen's blood.

After the murder, Gissendaner concealed her relationship with Owen from police and claimed not to have initiated contact with him for some time. Telephone records, Owen's testimony, and other witness testimony proved otherwise. After her arrest, Gissendaner called her best friend and confessed to her active and willing role in the murder, although she then called a second time and claimed that she was coerced into participating. Gissendaner wrote a letter while in jail in an effort to hire someone to give perjured testimony and to rob and beat witnesses.

Pretrial Proceedings

2. Gissendaner contends that the trial court erred in denying her motion for a change of venue. The trial court reserved its ruling until after voir dire had been completed and then denied the motion. We find that the trial court acted properly within its discretion in denying the motion. Tolver v. State, 269 Ga. 530, 532-533 (4) (500 SE2d 563) (1998) (recognizing trial court's discretion in considering a motion for a change of venue).

A capital defendant seeking a change of venue must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors. Jenkins v. State, 269 Ga. 282, 286 (3) (498 SE2d 502) (1998); Jones v. State, 267 Ga. 592, 594 (1) (a) (481 SE2d 821) (1997); Jones v. State, 261 Ga. 665, 666 (2) (409 SE2d 642) (1991) (holding a change of venue is required when a "defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity").

The trial court excused the following 13 jurors upon Gissendaner's motion based primarily upon their exposure to pretrial publicity: Waldrip; Myers; Krug; Jones; Chapman; Chappell; Henderson; Bullock; Teehan; Moreno; Hill; Hoffman; and Jackson. The trial court excused juror Foster based upon two defense arguments, one being the juror's exposure to pretrial publicity. Gissendaner argues that her challenges for cause concerning jurors Johnston and Mason were improperly denied, but we find that the trial court did not err in qualifying these jurors because their exposure to pretrial publicity was limited and their memories of what they had been exposed to were vague. Thus, 14 jurors of the 111 jurors questioned during voir dire were excused for cause based upon their exposure to pretrial publicity. We conclude that the number of excusals, particularly in light of the exacting standard applied by the trial court in reaching its decision to excuse certain jurors, is not indicative of the kind of inherently prejudicial environment requiring a change of venue. See Tharpe v. State, 262 Ga. 110, 111 (5) (416 SE2d 78) (1992); compare Jones v. State, 261 Ga. at 665-666 (1).

3. We find that the trial court did not err in refusing to strike for cause the jurors discussed in Gissendaner's appeal.

(a) Shortly before voir dire began, juror Mason had seen a newspaper article reporting on Gissendaner's upcoming trial, including the fact that a statement made by Gissendaner had been suppressed. However, Ms. Mason stated that she had "just skipped through" the article and could not remember details from it. She did vaguely recall something about "whether rights were read," but she had no recollection of the substance of Gissendaner's suppressed statement or anything else prejudicial to Gissendaner. Furthermore, she stated clearly that she would set aside any prior knowledge of the case and consider only the evidence presented at trial.

A prospective juror need not be "totally ignorant of the facts and issues involved" in a criminal proceeding in order to be qualified to serve. Irvin v. Dowd, 366 U. S. 717, 722 (81 SC 1639, 6 LE2d 751) (1961). Because Ms. Mason had very limited knowledge about Gissendaner's case, because it appears she was not prejudiced against Gissendaner, and particularly because she could not specifically recall any information that was to be excluded from evidence at trial, we conclude that the trial court properly qualified her to serve. See DeYoung v. State, 268 Ga. 780, 784 (4) (b) (493 SE2d 157) (1997).

(b) Gissendaner contends that the trial court erred in denying her motion to excuse juror Vandenakker for cause based upon his views on the death penalty. Mr. Vandenakker's responses initially evinced a preference for the death penalty in cases of "premeditated murder." However, his responses seeming to favor the death penalty were elicited by defense counsel's attempt to direct the juror's attention to a particular species of malice murder, namely malice murder where significant premeditation has occurred. In fact, defense counsel was properly admonished for doing so. See Carr v. State, 267 Ga. 547, 554 (6) (a) (480 SE2d 583) (1997) ("[I]t is improper to require the juror to enumerate hypothetical circumstances in which she might or might not vote to impose the death penalty"). Furthermore, Mr. Vandenakker indicated a willingness to consider all three sentencing options in light of mitigation evidence: "I would have to wait to hear [evidence in the sentencing phase] before I determined if it was a death penalty or life in prison or life in prison without parole." Because the juror was willing to consider any mitigating evidence and to consider all authorized sentencing options, we find that the trial court did not abuse its discretion in determining that his views on capital punishment would not " 'prevent or substantially impair . . . his duties as a juror in accordance with his instructions and his oath.' " Greene v. State, 268 Ga. 47, 48-50 (485 SE2d 741) (1997) (quoting Wainwright v. Witt, 469 U. S. 412, 424 (II) (105 SC 844, 83 LE2d 841) (1985)).

(c) Gissendaner contends that the trial court improperly denied her motion to disqualify juror Schie. Contrary to Gissendaner's argument on appeal, a juror who expresses a leaning toward the death penalty is not necessarily unsuited for service. Mize v. State, 269 Ga. 646, 652 (6) (d) (501 SE2d 219) (1998). Although juror Schie expressed an inclination toward the death penalty in murder cases, she qualified her expressed inclination by stating, "But I know there's different cases." She also stated repeatedly that she would consider all three sentencing options and that she was capable of voting in favor of a sentence less than death. The trial court did not abuse its discretion in qualifying this juror. Greene v. State, 268 Ga. at 48-50.

Likewise, our review of the record indicates that neither juror Still's nor juror Love's views on capital punishment disqualified them for service. Although they both admitted some leaning toward the death penalty, they both also stated clearly and repeatedly that they would consider all three sentencing options and that they were capable of voting in favor of a sentence less than death.

(d) Juror Winn acknowledged that he might, as surely all jurors might, be led to lean toward a determination of guilt or innocence based upon some of the evidence presented at trial but before all of the evidence had been presented. He stated: "I might come to some initial thought. I could see that happening, something might be said that would trigger a strong feeling one way or the other before the whole thing is over. That's entirely possible." Not only do we not find this acknowledgment troubling standing alone, we further note that the juror specifically stated that he would reserve final judgment until called upon for his verdict, although, in an admirable display of forthrightness, still acknowledging that "it could coincidentally be the same decision I thought of earlier." The trial court did not abuse its discretion in denying Gissendaner's motion to excuse this juror for cause.

(e) The record does not support Gissendaner's assertion that juror Beavers was predisposed toward the death penalty. Furthermore, Ms. Beavers stated clearly that she would consider all evidence and all three sentencing options and that she was capable of imposing a sentence less than death. We also find that Ms. Beavers's limited knowledge of the case drawn from her vague recollection of news reports did not require her disqualification. Irvin v. Dowd, 366 U. S. at 722.

(f) The trial court did not err in disqualifying juror Strong based upon her statement to the trial court, after some equivocation under questioning by counsel, that she did not know if she could impose the death penalty and based upon her becoming emotionally distraught during questioning on the topic. The trial court did not abuse its discretion in excusing this juror. Greene v. State, 268 Ga. at 48-50; Wainwright v. Witt, 469 U. S. at 424.

4. Upon reviewing the record, we conclude that the trial court did not improperly restrict Gissendaner's questioning on voir dire in general or with regard to the following jurors specifically discussed on appeal: Still; Beavers; Hampton; Strong; Mathis; Chappell; Smith; Derda; and Rumble. The trial court permitted a thorough examination of each of the jurors and properly sustained meritorious objections. "The scope of voir dire is largely left to the trial court's discretion, and the voir dire in this case was broad enough to ascertain the fairness and impartiality of the prospective jurors." Barnes v. State, 269 Ga. at 351-352 (10). The trial court was correct in preventing defense counsel from questioning jurors as to their willingness to impose the death penalty under specified hypothetical circumstances. Carr v. State, 267 Ga. at 554 (6) (a). The trial court did not err in restricting counsel's questions concerning the perceived credibility of law enforcement officers as compared with ordinary citizens. Henderson v. State, 251 Ga. 398, 400 (1) (306 SE2d 645) (1983). Nor did the trial court err in limiting repetitive, misleading, and irrelevant questions. Id. at 401.

5. Gissendaner contends that the jury pools from which her grand jury and traverse jury were selected were created in a racially-discriminatory manner. We disagree.

Gissendaner's expert witness testified before the trial court that African-Americans comprised 5.1 percent of the population of the county according to the 1990 census but only 3.8 percent of registered voters. The expert concluded that Caucasians were selected from the voter registration list for inclusion in the jury pool in less than proportional numbers by the process of forced balancing. The expert witness attempted to bolster her argument that Caucasians were excluded in selecting the jury pools by suggesting that the percentage of African-Americans in the population of the county had even decreased to 4.6 percent since the 1990 census.

Members of the county's jury commission testified that the percentage of African-Americans in the jury pool was precisely the same as the percentage of African-Americans in the population in the county as determined by the 1990 census, and Gissendaner's expert testimony seemed to confirm their testimony. The method of forced balancing employed by the county in ensuring this proportionality was not unlawful. Sears v. State, 262 Ga. 805, 806 (2) (426 SE2d 553) (1993). Gissendaner also failed to demonstrate the exclusion of any arguably-cognizable group subsumed under the category of "other" in the county's voter registration records, the source from which the jury pools were drawn. We find that the trial court did not err in concluding that Gissendaner had failed to make a prima facie case of discrimination in the selection of the jury pools from which her grand and traverse juries were drawn. See Bowen v. State, 244 Ga. 495, 500 (I) (4) (260 SE2d 855) (1979).

Gissendaner, by recalculating figures appearing in an exhibit provided by her expert witness, now asserts on appeal that African-Americans actually comprised 7.4 percent of the registered voters in the county and, therefore, that it was African-Americans rather than Caucasian persons who were selected in less than proportional numbers. Without addressing the waiver issue involved in Gissendaner's reversal of argument, we conclude that, even assuming the validity of the figures set forth on appeal, the jury pools did not unlawfully exclude African-Americans. See Unified Appeal Procedure, Rule II (A) (6). 2

Trial Proceedings

6. The trial court did not err in excluding testimony by one of the victim's co-workers about a statement made by the victim.

Hearsay must be necessary and must be accompanied by particular guarantees of trustworthiness in order to be admissible under the necessity exception. OCGA 24-3-1 (b); Chapel v. State, 270 Ga. 151, 154-156 (4) (510 SE2d 802) (1998). A trial court should view the proffered hearsay within the totality of the circumstances of its origin, and, because the "[f]actors that speak to the reliability of [hearsay] statements will vary depending on the nature of the statements," the determination of trustworthiness is inescapably subjective. Id. at 155. Accordingly, that determination is evaluated on appeal under an abuse of discretion standard. White v. White, 262 Ga. 168, 169 (415 SE2d 467) (1992).

The trial court admitted one hearsay statement by the deceased victim where the statement had been made immediately after concluding a telephone call and where the victim appeared "really scared and jolted." In contrast, the excluded hearsay statement was made after the victim, returning from his lunch break, "just nonchalantly walked in and was talking to [the witness]." The witness further stated during the defense's proffer that the declarant "didn't look afraid or nothing." Application of the necessity exception requires

"a circumstantial guaranty of the trustworthiness of the offered evidence -- that is, there must be something present [in the making of the statement] which the law considers a substitute for the oath of the declarant and his [or her] cross examination by the party against whom the hearsay is offered."

(Citations and emphasis omitted.) Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (1) (173 SE2d 691) (1970); see also Abraha v. State, 271 Ga. 309, 313 (2) (518 SE2d 894) (1999). The trial court did not abuse its discretion in excluding this casually-rendered statement concerning matters over which cross-examination would be potentially important while admitting another similar statement made under circumstances more suggestive of trustworthiness.

7. The trial court did not err, as Gissendaner contends, in admitting photographs and a videotape depicting the victim's body as it was found at the crime scene and prior to autopsy. Jackson v. State, 270 Ga. 494, 498 (8) (512 SE2d 241) (1999); Jenkins v. State, 269 Ga. at 293 (20). "Photographs showing the condition and location of the victim's body are admissible where alterations to the body are due to the combined forces of the murderer and the elements." Klinect v. State, 269 Ga. 570, 574 (4) (501 SE2d 810) (1998).

The photograph of the victim in life was also properly admitted. Ledford v. State, 264 Ga. 60, 66 (14) (439 SE2d 917) (1994).

8. The trial court, after hearing testimony from law enforcement officers that road conditions leading to the scene were unsafe, did not abuse its discretion in denying Gissendaner's motion to have the jury view the crime scene. Sutton v. State, 237 Ga. 418, 419 (3) (228 SE2d 815) (1976). Gissendaner was allowed to introduce numerous photographs of the crime scene that she was able to use in support of her theory of defense. See Williams v. State, 202 Ga. App. 728, 729 (3) (415 SE2d 327) (1992).

9. Gissendaner argues that the trial court improperly limited her closing argument. Prior to an objection by the State, Gissendaner's counsel argued the following:

[T]hrough the evidence, we have learned a lot about Doug Gissendaner. We know he was a healthy, strong individual. We know he outweighed Mr. Owen. We know he was tall. We know he worked as a mechanic, and we know that Doug Gissendaner had recently served in the United States Army. We know that in the United States Army he went through basic combat training. We know that he trained in combat arms. He was combat arms qualified. We know he was a tanker in the Army corps. We know he served in a combat theater in Desert Storm. And, therefore, we know that he had escape and evasion training.

The State then raised an objection, which the trial court sustained stating, "Counsel can only comment on what's in evidence." Defense counsel's argument was again interrupted by an objection after counsel stated the following: "I would suggest to you as a reasonable inference from his service in the army and from his having served in a combat theater he was trained in how to defend himself in the woods." The trial court sustained the objection and stated, as part of an instruction that is difficult to interpret definitively in print: "That's testimony. It's not permissible."

Counsel certainly are permitted to argue reasonable inferences from the evidence presented at trial. Simmons v. State, 266 Ga. 223, 228 (6) (b) (466 SE2d 205) (1996). We need not address whether the specific inferences objected to in this case were reasonable, however, because we conclude that, regardless of whether the trial court's rulings were correct, Gissendaner was not harmed by them. Johnson v. State, 238 Ga. 59, 60-61 (230 SE2d 869) (1976); Dill v. State, 222 Ga. 793, 794 (1) (152 SE2d 741) (1966). Defense counsel had already set out the pertinent aspects of the evidence, the jury was not instructed to disregard anything counsel had said, the trial court clearly stated that "[t]he jury may draw reasonable inference[s]," and defense counsel was later allowed to argue vigorously the theory that the victim could not have been murdered by Owen alone. Under these circumstances, we conclude that Gissendaner has not suffered any harm, even assuming any error by the trial court.

(a) Early in his argument, the Senior Assistant District Attorney stated, "[W]hat you just heard from [defense counsel] has done a tremendous violence to the truth in this case." The prosecutor continued by further suggesting defense counsel's argument had failed to comport with the evidence and by referring to counsel's argument as "an insult to the truth." Defense counsel objected to the argument on the sole basis that it was a "personal attack."

We are concerned that counsel should adhere to the highest standards of professionalism and proper courtroom decorum, see Davis v. State, 255 Ga. 598, 610 (16) (340 SE2d 869) (1986); see also Miller v. State, 228 Ga. App. 754, 757 (6) (492 SE2d 734) (1997), and, accordingly, we find distasteful any argument that unnecessarily impugns the integrity of opposing counsel, even if obliquely. However, in this case, we do not conclude that the trial court erred in failing to make a clear ruling in Gissendaner's favor upon her one objection. Simmons v. State, 266 Ga. at 228-229 (6) (b) ("[T]his Court has long held that the permissible range of argument during final summation is 'very wide.' [Cits.]").

(b) Gissendaner contends that other statements by the prosecutor constituted improper personal attacks upon defense counsel, but because no objections were raised to these allegedly-improper statements, Gissendaner's contention is waived insofar as it concerns the jury's determination of her guilt. Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996); see Whatley v. State, 270 Ga. 296, 304-305 (509 SE2d 45) (1998) (Thompson, J., concurring specially). However, when the death penalty has been imposed, we must also consider whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA 17-10-35 (c) (1). In doing so, we consider whether any allegedly-improper arguments that were not objected to at trial in reasonable probability " 'changed the jury's exercise of discretion in choosing between life imprisonment or death.'" Hicks v. State, 256 Ga. 715, 730 (23) (352 SE2d 762) (1987) (quoting Ford v. State, 255 Ga. 81, 94 (8) (I) (2) (335 SE2d 567) (1985); compare Mullins v. State, 270 Ga. 450, 450-451 (2) (511 SE2d 165) (1999) ("This 'reasonable probability' test applies only in the context of appellate review of a criminal case in which the death penalty was imposed."). We conclude, even assuming the arguments contested by Gissendaner were improper, that the jury's exercise of discretion would not have been affected by them and, therefore, than her sentence should not be disturbed.

(c) Gissendaner contends that her conviction should be reversed because the Senior Assistant District Attorney referred to her as "evil" in his closing argument. Because Gissendaner made no objection at trial, this issue is waived insofar as it concerns the jury's determination of her guilt. Miller v. State, 267 Ga. at 92 (2); see Whatley v. State, 270 Ga. at 304-305 (Thompson, J., concurring specially). Even assuming the comment was improper, we conclude that there is no reasonable probability that the comment changed the jury's exercise of discretion in fixing her sentence at death, and, accordingly, we conclude that her sentence should not be disturbed. See Whatley v. State, 270 Ga. at 304-305 (Thompson, J., concurring specially); see also Simmons v. State, 266 Ga. at 228 (6) (b) (characterizing defendant as "mean" and a "wife-beater" not improper when supported by the evidence).

(d) There is no merit to Gissendaner's argument that the State improperly sought to bolster the credibility of its witnesses by commenting that the defendant's presentation of witnesses resembled "somebody drowning, grasping at straws."

11. OCGA 17-10-1.2 is not unconstitutional as written, and the trial court properly reviewed the State's victim impact testimony prior to trial and did not admit unduly inflammatory or prejudicial evidence. Livingston v. State, 264 Ga. 402, 402-405 (1) (444 SE2d 748) (1994); Jones v. State, 267 Ga. at 595-596 (2).

Sentencing Phase

12. During the sentencing phase of her trial, Gissendaner sought to admit into evidence several letters from her children in order to show the children's love for her. The trial court excluded the letters as hearsay but allowed the children's grandmother to testify that the children had written letters to their mother in jail.

We have held that trial courts should exercise broad discretion in admitting any mitigating evidence during the sentencing phases of death penalty trials. Barnes v. State, 269 Ga. at 357-361 (27). But Barnes does not require the wholesale admission of all evidence contended to be mitigating without respect to its reliability and the rules of evidence. See Smith v. State, 270 Ga. 240, 249 (12) (510 SE2d 1) (1998) ("[T]he hearsay rule is not suspended in the sentencing phase."). Evidence that is inadmissible under this State's rules of evidence need only be admitted when the potentially-mitigating influence of the evidence outweighs the harm resulting from the violation of the evidence rule. Collier v. State, 244 Ga. 553, 566-568 (11) (261 SE2d 364) (1979) (applying Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979)). Because the evidence rules exist for the purpose of winnowing out unreliable evidence, a trial court, in determining the admissibility of proffered evidence, must consider whether "substantial reasons exist[] to assume its reliability." Collier v. State, 244 Ga. at 567.

The trial court in Gissendaner's case expressed a reasonable concern about the reliability of hearsay statements written by young children under unknown circumstances and influences. Additionally, the availability of the hearsay declarants to serve as witnesses at trial and the availability of their grandmother to testify that they had written to their mother both undermined Gissendaner's assertion that admission of the hearsay statements was critical to her defense. OCGA 24-3-16, which governs the admissibility of the hearsay statements of children subjected to abuse, was not controlling in this murder case, and, furthermore, we find that the concerns to be addressed in assessing the reliability of children's hearsay testimony under that statute and its related case law were largely the same as those addressed by the trial court. Pretermitting the questions of whether the children's drawings contained in the letters were admissible or whether Gissendaner ever attempted to admit the drawings by themselves, we conclude that the drawings by themselves would have had no effect on the jury's deliberations. See Todd v. State, 261 Ga. 766, 767-768 (2) (a) (410 SE2d 725) (1991).

In light of all of the foregoing, we conclude that the trial court did not err in excluding the disputed letters. Davis v. State, 263 Ga. 5, 9 (14) (426 SE2d 844) (1993); Isaacs v. State, 259 Ga. 717, 736-737 (37) (386 SE2d 316) (1989).

13. We find no merit in Gissendaner's contention that certain statements made by the Chief Assistant District Attorney in his closing argument during the sentencing phase were improper. The prosecutor did not improperly emphasize the worth of the victim. See Ward v. State, 262 Ga. 293, 297 (6) (g) (417 SE2d 130) (1992); Moon v. State, 258 Ga. 748, 760 (35) (375 SE2d 442) (1988); Davis v. State, 255 Ga. at 606-607, n. 5. Our review of the record also indicates that the prosecutor did not argue things not supported by the evidence, denigrate the place of mercy in the jury's deliberations, or improperly appeal to the passions and prejudices of the jury. Finally, it was not improper for the prosecutor to argue in the manner complained of that ultimate responsibility for any sentence Gissendaner might receive rested on her. Hance v. State, 254 Ga. 575, 578 (5) (332 SE2d 287) (1985). Because the arguments complained of were not improper, we conclude that no harm was suffered by Gissendaner, who did not object at trial. See Todd v. State, 261 Ga. at 767-768 (2) (a).

14. The trial court's charge on the definition of mitigating circumstances was correct and would not have misled the jury. Fugate v. State, 263 Ga. 260, 262-264 (5) (431 SE2d 104) (1993).

The trial court properly charged the jury by stating, "You shall also consider the facts and circumstances, if any, in extenuation and mitigation." See Romine v. State, 251 Ga. 208, 214-215 (10) (a) (305 SE2d 93) (1983). The word "may" used later in the trial court's charge referred to whether the jury might consider particular facts and circumstances to be mitigating and not whether, if the jury did consider them mitigating, they should be considered.

It was not necessary for the trial court to charge the jury that findings regarding mitigating circumstances need not be unanimous or on how mitigating circumstances should be weighed, because the trial court properly charged the jury that it was not necessary to find any mitigating circumstances in order to return a sentence less than death. Palmer v. State, 271 Ga. 234, 238 (6) (517 SE2d 502) (1999); McClain v. State, 267 Ga. 378, 386 (6) (477 SE2d 814) (1996).

The trial court did not err in failing to charge the jury on the consequences of a deadlock. Jenkins v. State, 269 Ga. at 296 (26); Burgess v. State, 264 Ga. 777, 789 (35) (450 SE2d 680) (1994).

Constitutional Questions

15. Execution by electrocution is not cruel and unusual punishment. DeYoung v. State, 268 Ga. at 786 (6); Wellons v. State, 266 Ga. 77, 91 (32) (463 SE2d 868) (1995).

16. Georgia's death penalty statute is not unconstitutional, and Gissendaner has failed to show that application of the statute in her case is unconstitutional. McCleskey v. Kemp, 481 U. S. 279 (107 SC 1756, 95 LE2d 262) (1987); Zant v. Stephens, 462 U. S. 862, 873-880 (I) (103 SC 2733, 77 LE2d 235) (1983); Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976); Crowe v. State, 265 Ga. 582, 595 (24) (458 SE2d 799) (1995). This Court's review of death sentences is neither unconstitutional nor inadequate under Georgia statutory law. McMichen v. State, 265 Ga. 598, 611 (25) (458 SE2d 833) (1995); Felker v. State, 252 Ga. 351, 381 (14) (314 SE2d 621) (1984).

17. Qualification of jurors based upon their willingness to consider the death penalty as a sentencing option does not deny capital defendants their right to an impartial jury drawn from a representative cross-section of the community and is not otherwise unconstitutional. DeYoung v. State, 268 Ga. at 790 (11); Wainwright v. Witt, 469 U. S. at 418-426 (II).

18. The Unified Appeal Procedure exists to protect the rights of capital defendants and is not unconstitutional. Jackson v. State, 270 Ga. at 498-499 (10).

Sentence Review

19. Gissendaner contends that the death sentence she received is "disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." OCGA 17-10-35 (c) (3). Upon a review of the record and of similar cases in Georgia, we conclude that it is not.

(a) Our review of all death sentences includes a special vigilance for categories of cases that have so consistently ended with sentences less than death that the death penalty in any one case would be clearly disproportionate. Gregg v. State, 233 Ga. 117, 126-128 (6) (210 SE2d 659) (1974) (finding the death penalty for armed robbery disproportionate because "rarely imposed" for that crime); Floyd v. State, 233 Ga. 280, 285 (V) (210 SE2d 810) (1974) (same); Jarrell v. State, 234 Ga. 410, 424-425 (3) (c) (216 SE2d 258) (1975) (same); Corn v. State, 240 Ga. 130, 141 (III) (2) (c) (240 SE2d 694) (1977) (same); Coley v. State, 231 Ga. 829, 834-836 (I), (II) (204 SE2d 612) (1974) (finding the death penalty for rape of an adult not resulting in death disproportionate to "the past practice among juries" and holding that "if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive"); see also Coker v. Georgia, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977) (concerning proportionality review of a death sentence under the United States Constitution). However, our review concerns whether the death penalty "is excessive per se" or if the death penalty is "only rarely imposed . . . or substantially out of line" for the type of crime involved and not whether there ever have been sentences less than death imposed for similar crimes. Horton v. State, 249 Ga. 871, 879 (12) (295 SE2d 281) (1982); Coley v. State, 231 Ga. at 834 (I); Moore v. State, 233 Ga. 861, 866 (213 SE2d 829) (1975). Consequently, an argument, like one raised by Gissendaner, that a specific defendant in an unrelated murder case received a sentence less than death, while not irrelevant, cannot alone compel a finding of unlawful disproportionality. This Court views a particular crime against the backdrop of all similar cases in Georgia in determining if a given sentence is excessive per se or substantially out of line. When applicable, our "proportionality review of death sentences includes special consideration of the sentences received by co-defendants in the same crime." Allen v. State, 253 Ga. 390, 395 (8) (321 SE2d 710) (1984) (citing Hall v. State, 241 Ga. 252, 258-260 (8) (244 SE2d 833) (1978)).

We are also directed by OCGA 17-10-35 (c) (3) to consider "the defendant" in weighing the proportionality of a death sentence, and, therefore, the special individual characteristics of an appellant are appropriate for consideration. See Corn v. State, 240 Ga. at 141 (III) (2) (c) (discussing "low mental level and social maladjustment"). Our consideration of "the defendant" also requires a review of the aggravating factors presented at trial, including both past conduct and conduct after the crime.

(b) In considering Gissendaner's role in the murder, we note several aggravating factors from the record. First, the record indicates that she was the moving force in the crime. Owen, her co-conspirator, testified that Gissendaner insisted her husband be murdered rather than divorced so that she would receive insurance money to pay off the mortgage on her home, although she learned after the murder that no such insurance policy was yet in force. Telephone records indicated that Gissendaner was with Owen when the two made plans for the murder from a bank of payphones and that Gissendaner called or paged Owen 65 times in the days leading up to the murder. On the night of the murder, Gissendaner drove Owen to her family's home, provided him with the murder weapons, and then left him inside the home to lie in wait for her husband while she left to establish an alibi. While out with her friends during the actual murder, Gissendaner resisted suggestions that the group reschedule their outing. When she returned, she immediately sent a numeric signal to Owen on his pager and then drove to the murder scene. Owen testified that she took a flashlight to inspect her husband's body to see that he was dead and assisted in burning her husband's automobile.

Gissendaner's conduct after the night of the murder is also an appropriate concern for our sentence review, as it was an appropriate concern for the jury who sentenced her. Evidence at trial showed that Gissendaner, prior to her arrest, drove angrily toward a witness while declaring, "I ought to run the bitch over." While in jail, she wrote a letter and drew a map of her house in an effort to locate a person willing to accept money to commit perjury and to rob and beat witnesses.

(c) We conclude that the deliberate, even insistent, manner in which Gissendaner pursued her husband's death, the fact that the murder was the unprovoked and calculated killing of a close family member, the fact that she arranged the murder to obtain money, and the fact that she attempted to avoid responsibility for her conduct by suborning perjury and orchestrating violence against witnesses all weigh heavily against her claim that the death penalty in her case is disproportionate. Our review of the sentences imposed in similar cases in Georgia reveals that the death sentence imposed in Gissendaner's case, considering both the gravity of her crime and the apparent depravity of her character, is not disproportionate. OCGA 17-10-35 (c) (3). The cases appearing in the Appendix support this conclusion in that each involved the careful devising of a plan to kill, killing for the purpose of receiving something of monetary value, kidnapping with bodily injury, or causing or directing another to kill.

at 260 (8). The evidence showed that she repeatedly raised the option of murder in conversations with her co-conspirator and that she planned the murder. She and not her co-conspirator stood primarily to gain financially from the murder. The murder was planned against her close family member. See DeYoung v. State, 268 Ga. 780. Unlike her co-conspirator, who cooperated with authorities and confessed his guilt, Gissendaner devised a plan to suborn perjury and to do violence against witnesses. Id.; compare Moore v. State, 233 Ga. at 865. We also note that Gissendaner appealed to the jury's sense of justice by making the same argument of proportionality she makes to this Court and that the jury rejected the argument by its verdict. In light of all these circumstances, we conclude that Gissendaner's sentence was not impermissibly disproportionate to Owen's. See Carr v. State, 267 Ga. at 559 (11); see also Crowe v. State, 265 Ga. at 595 (24); compare Hall v. State, 241 Ga. at 259-260 (8).

20. We find that the sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA 17-10-35 (c) (1).

APPENDIX.

Wilson v. State, 271 Ga. 811 (525 SE2d 339) (1999); Mize v. State, 269 Ga. 646 (501 SE2d 219) (1998); DeYoung v. State, 268 Ga. 786 (493 SE2d 157) (1997); Waldrip v. State, 267 Ga. 739 (482 SE2d 299) (1997); Carr v. State, 267 Ga. 547 (480 SE2d 583) (1997); Crowe v. State, 265 Ga. 582 (458 SE2d 799) (1995); Tharpe v. State, 262 Ga. 110 (416 SE2d 78) (1992); Ferrell v. State, 261 Ga. 115 (401 SE2d 741) (1991); Ford v. State, 257 Ga. 461 (360 SE2d 258) (1987); Romine v. State, 256 Ga. 521 (350 SE2d 446) (1986); Alderman v. State, 254 Ga. 206 (327 SE2d 168) (1985); Tyler v. State, 247 Ga. 119 (274 SE2d 549) (1981); Alderman v. State, 241 Ga. 496 (246 SE2d 642) (1978); Smith v. State, 236 Ga. 12 (222 SE2d 308) (1976).

BENHAM, Chief Justice, dissenting.

While I concur with the majority's affirmance of appellant's adjudication of guilt, I respectfully dissent to Division 15 of the majority opinion and the sentence for the same reasons as stated by Justice Sears in her dissent in Wilson v. State, 271 Ga. 811 (523 SE2d 339) (1999).

Daniel J. Porter, District Attorney, Nancy J. Dupree, Phil Wiley, George F. Hutchinson III, Thurbert E. Baker, Attorney General, Susan v. Boleyn, Senior Assistant Attorney General, Frank A. Ilardi, Allison B. Vrolijk, Assistant Attorneys General, for appellee.

Notes

1 The murder occurred on February 7, 1997. Gissendaner was indicted on April 30, 1997, by the Gwinnett County Grand Jury for malice murder and felony murder. The State filed written notice of its intent to seek the death penalty on May 6, 1997. Gissendaner's trial began on November 2, 1998, and the jury found her guilty of malice murder and felony murder on November 18, 1998. The felony murder conviction was vacated by operation of law. Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993); OCGA 16-1-7. On November 19, 1998, the jury fixed Gissendaner's sentence at death. Gissendaner filed a motion for a new trial on December 16, 1998, which she amended on August 18, 1999, and which was denied on August 27, 1999. Gissendaner filed a notice of appeal on September 24, 1999. This appeal was docketed on November 9, 1999, and orally argued on February 29, 2000.
2 Cases where notice that the State intends to seek the death penalty is given after January 27, 2000, shall be governed by the revised version of the Unified Appeal Procedure. The corresponding rule in the revised outline is Rule II (C) (6).

Edwin J. Wilson, Steven M. Reilly, Charlotta Norby, Michael Mears, Kenneth D. Driggs, Thomas H. Dunn, for appellant.

DECIDED JULY 5, 2000 RECONSIDERATION DENIED JULY 28, 2000.

GISSENDANER v. SEABOLT

KELLY RENEE GISSENDANER, Petitioner,
v.
KATHY SEABOLT Warden, Metro State Prison, Respondent.

Civil Action File No. 1:09-CV-69-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

March 21, 2012.

Kelly Renee Gissendaner, Petitioner, represented by Lindsay Nicole Bennett, Federal Defender Program Inc.-Atl, Robert L. McGlasson, II, Law Office of Robert L. McGlasson, II & Susan Christen Casey, McIntyre & Associates — ATL.

Kathy Seaboldt, Warden, Metro State Prison, Respondent, represented by Sabrina G. Graham, Attorney General's Office-Atl & Beth Attaway Burton, Office of State Attorney General.

ORDER

THOMAS W. THRASH, Jr., District Judge.

This is a habeas corpus action in a state death penalty case. It is before the Court on the Amended Petition for Writ of Habeas Corpus [Doc. 16]. For the reasons set forth below, the Court DENIES the Amended Petition.

I. Background

Petitioner Kelly Gissendaner and her co-defendant Gregory Owen were indicted in the Superior Court of Gwinnett County on May 1, 1997, on one count of malice murder and one count of felony murder. The State filed its notice of intent to seek the death penalty against the Petitioner on May 6, 1997. Following a jury trial, the Petitioner was convicted of malice murder. The Georgia Supreme Court summarized the facts of her case as follows:

Gissendaner and the victim had been married, divorced, remarried, separated, and reunited between 1989 and 1997. Ms. Gissendaner was in a relationship with Gregory Bruce Owen and at one point stated to a coworker that she was unhappy with her husband and in love with Owen.

Prior to Gissendaner's trial, Owen entered an agreement not to seek parole within 25 years, pled guilty, and received a sentence of life in prison. Owen testified at Gissendaner's trial that it was she who first raised the idea of murder and that she later raised the idea again several other times. Owen suggested divorce as an alternative, but Gissendaner insisted upon murder because she believed she would receive insurance money from her husband's death and because she believed he "wouldn't leave [her] alone by just divorcing him." Gissendaner had previously stated to Owen's sister that she intended to use the victim's credit to get a house and then "get rid of him."

During the days leading up to the murder, Gissendaner made 47 telephone calls to Owen and paged him 18 times. Telephone records also showed that the pair were together at a bank of payphones several hours before the murder. On the evening of February 7, 1997, Gissendaner drove Owen to her family's home, gave him a nightstick and a large knife, and left him inside the home to wait for the victim. Gissendaner then drove to a friend's house, and, upon Gissendaner's insistence that the group keep their plans for the evening, she and her friends went out to a nightclub.

The victim arrived home shortly after 10:00 p.m. Owen confronted the victim from behind, held a knife to his throat, forced him to drive to a remote location, forced him to walk into the woods and kneel, and then killed him by striking him with the nightstick and then stabbing him repeatedly in the back and neck with the knife. As instructed by Gissendaner, Owen took the victim's watch and wedding ring before killing him to make the murder appear like a robbery.

Gissendaner returned home from the nightclub at about the time the murder was being carried out, paged Owen with a numeric signal, and then drove to the crime scene. After inquiring if her husband was dead, she took a flashlight and went toward the body to inspect it. Owen burned the victim's automobile with kerosene provided by Gissendaner, and the pair returned to their respective homes in Gissendaner's automobile. Owen disposed of the nightstick, the knife, a pair of his own jeans, and the victim's stolen jewelry by placing them in the garbage. A pair of Owen's sweat pants also worn on the night of the murder was recovered, however, and DNA analysis of blood found on them showed a likely match with the victim's and Owen's blood.

After the murder, Gissendaner concealed her relationship with Owen from police and claimed not to have initiated contact with him for some time. Telephone records, Owen's testimony, and other witness testimony proved otherwise. After her arrest, Gissendaner called her best friend and confessed to her active and willing role in the murder, although she then called a second time and claimed that she was coerced into participating. Gissendaner wrote a letter while in jail in an effort to hire someone to give perjured testimony and to rob and beat witnesses.

Gissendaner v. State, 272 Ga. 704, 705 (2000).

At the sentencing phase of the trial, the jury found two aggravating circumstances: (1) that the murder of Douglass Gissendaner was committed during the commission of a kidnaping with bodily injury, see O.C.G.A. § 17-10-30(b)(2); and (2) that the Petitioner caused or directed another to commit murder, see O.C.G.A. § 17-10-30(b)(6). She was sentenced to death. The Georgia Supreme Court affirmed the Petitioner's conviction and sentence on direct appeal and denied her motion for reconsideration. Gissendaner, 272 Ga. at 704. The United States Supreme Court denied her petition for a writ of certiorari and her motion for rehearing. Gissendaner v. Georgia, 531 U.S. 1196 (2001) (rehearing denied, 532 U.S. 1003 (2001)).

On December 18, 2001, the Petitioner filed a habeas corpus petition in the Superior Court of DeKalb County. (Res. Ex. 80.) The court held an evidentiary hearing on December 13 and 14, 2004. On February 16, 2007, the court denied the petition. (Res. Ex. 123.) On appeal, the Georgia Supreme Court affirmed the Superior Court's denial of relief and denied the Petitioner's motion for reconsideration. On January 9, 2009, Gissendaner petitioned this Court for a writ of habeas corpus [Doc. 1], and amended the Petition on May 28, 2009 [Doc. 16]. In a February 22, 2010 Order, the Court dismissed some of the Petitioner's claims as procedurally defaulted and dismissed some as unexhausted [Doc. 39]. The Court now addresses the merits of the remaining claims in the Amended Petition.

II. Standard for Habeas Corpus Relief

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas corpus relief for claims previously adjudicated on the merits by a state court unless the state court adjudication resulted in a decision that (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first step in resolving a federal habeas corpus claim is to determine the "clearly established law at the relevant time." Neelley v. Nagle, 138 F.3d 917, 922 (11th Cir. 1998), cert. denied, 525 U.S. 1075 (1999); see Williams v. Taylor, 529 U.S. 362, 379 (2000). To do so, a district court evaluating a habeas corpus petition under 28 U.S.C. § 2254(d)(1) "`should survey the legal landscape' at the time the state court adjudicated the petitioner's claim to determine the applicable Supreme Court authority; the law is `clearly established' if Supreme Court precedent would have compelled a particular result in the case." Neelley, 138 F.3d at 923. "Clearly established Federal law" does not refer to decisions of the lower federal courts but, rather, is limited to "the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." Putman v. Head, 268 F.3d 1223, 1241(11th Cir. 2001) (quoting Williams, 529 U.S. at 412). The second step of the analysis is to determine whether the state court adjudication was "contrary to" or an "unreasonable application of" the clearly established Supreme Court case law. Neelley, 138 F.3d at 923. A state court decision is contrary to clearly established federal law when it applies a rule that contradicts the governing law as set forth in cases before the Supreme Court of the United States. Williams, 529 U.S. at 405; Putman, 268 F.3d at 1241. Additionally, a "contrary to" finding will result if the state court confronts materially indistinguishable facts but arrives at a result different from that of the Supreme Court. Williams, 529 U.S. at 406; Putman, 268 F.3d at 1241. Finally, the Supreme Court has explained that the "unreasonable application" prong applies when the "`state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). In order to qualify as unreasonable, the state court decision must have been more than incorrect or erroneous. Id. Rather, the state court's application of clearly established federal law must have been "objectively unreasonable." Id. at 521 (citing Williams, 529 U.S. at 409).

III. Discussion

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees the right to counsel. Strickland v. Washington, 466 U.S. 668, 684-85 (1984); Powell v. Alabama, 287 U.S. 45 (1932). As noted in Strickland, "[t]he right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the `ample opportunity to meet the case of the prosecution' to which they are entitled." Strickland, 466 U.S. at 685 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76 (1942)). For that reason, the Supreme Court has long held that the right to counsel contemplates the right to the effective assistance of counsel. Id.; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).

In Strickland, the Supreme Court set out the two components of a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 687; see also Wiggins v. Smith, 539 U.S. 510, 521 (2003). A petitioner must first show that counsel's performance was deficient. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687. This requires a showing that counsel's representation "fell below an objective standard of reasonableness." Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 688. The Petitioner must then also show that counsel's deficient performance prejudiced the defense. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687. Unless the Petitioner makes both showings, it cannot be said that his capital sentence resulted from a breakdown in the adversarial process that denied him effective counsel.

The standard governing counsel's performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. "We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately." White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992). The Petitioner's burden to prove by a preponderance of the evidence that counsel's performance was unreasonable is a heavy one. See Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). The Petitioner must show that "no competent counsel would have taken the action that his counsel did take." Id. at 1315; Stewart v. Secretary, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007).

The Petitioner "must also establish prejudice—that but for counsel's unprofessional performance, there is a reasonable probability the result of the proceeding would have been different." Ferrell v. Hall, 640 F.3d 1199, 1234 (11th Cir. 2011) (citing Strickland, 466 U.S. at 694). "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding," because "[v]irtually every act or omission of counsel would meet that test." Strickland, 466 U.S. at 693. Nevertheless, a petitioner "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. Instead, the relevant inquiry when a petitioner challenges a death sentence "is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695.

1. Mitigating Evidence Investigation

The Petitioner argues that her trial counsel, Ed Wilson and Steve Reilly,1 were ineffective in their investigation of mitigating evidence for the sentencing phase, including the Petitioner's alleged history of sexual abuse and mental health problems. The Petitioner's trial counsel had an "obligation to conduct a thorough investigation of the defendant's background." Porter v. McCollum, 130 S.Ct. 447, 452-53 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)).2 "[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring)). A defense counsel's unreasonable failure to investigate mitigating evidence constitutes deficient performance. "As [the Supreme Court] established in Strickland, `strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.'" Wiggins, 539 U.S. at 528 (quoting Strickland, 466 U.S. at 690-691). "A decision not to investigate. . .`must be directly assessed for reasonableness in all the circumstances.'" Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at 691). In assessing the reasonableness of the investigation, this Court must consider "whether the known evidence would [have] lead a reasonable attorney to investigate further." Wiggins, 539 U.S. at 527. The Court must also consider counsel's perspective at the time investigative decisions were made and give a heavy measure of deference to counsel's judgments. Rompilla v. Beard, 545 U.S. 374, 381 (2005).

The state habeas court found that "trial counsel's investigation and presentation of the sentencing phase of Petitioner's case did not constitute deficient performance." (Res. Ex. 123, at 51.) This Court cannot find that in reaching this conclusion the state habeas court made an unreasonable determination of fact, or that its conclusion was contrary to, or an unreasonable application of, Supreme Court precedent. This Court finds that the Petitioner's trial counsel exercised "reasonable professional judgmen[t]" in its investigation of the Petitioner's history of alleged sexual abuse. Wiggins, 539 U.S. at 522-23 (quoting Strickland, 466 U.S. at 691). The state habeas court found that trial counsel's mitigation investigation included the following steps:

Both counsel had access to an extensive journal prepared by Petitioner chronicling her life. Mr. Reilly testified that he interviewed the following individuals in preparation for the mitigation portion of Petitioner's case: Delphia Kemp (grandmother); Larry Brookshire (father); Edna Brookshire (stepmother); Earl Brookshire (grandfather); Leon and Marion Brookshire (aunt and uncle); Xan and Tangee Brookshire (cousins); Bessie Smith (paternal grandmother); Debra West (cousin); Emmie Conaway (grandmother); Chastine Conaway (uncle); Darlene Bearden (aunt); Claudine Mullens (aunt); Tommy Conaway (uncle); Delane Conaway (uncle); Barry Conaway (uncle); Barbara Grimes (cousin); Shane Brookshire (brother); and Mabel Davenport (close, personal family friend.)

Mr. Reilly spoke with Petitioner's mother, Maxine Wade, on a regular basis and described her as being forthcoming with information. Trial counsel provided Ms. Wade with a questionnaire entitled "Suggested Areas to Explore in Defendant's History" and requested that she answer the questions. During the conversations with Ms. Wade, she provided information as to the family life during Petitioner's childhood.

(Res. Ex. 123, at 40-41) (internal citations omitted).

As detailed above, trial counsel undertook substantial efforts to uncover potential mitigating evidence for the penalty phase through interviews with those close to the Petitioner. As a result of these interviews, "[t]rial counsel was aware of some of the allegations of physical and sexual abuse as detailed in Petitioner's journal and reported by her mother." (Res. Ex. 123, at 49.) After the interviews, the only evidence of sexual abuse that counsel possessed was the Petitioner's claim that she had been sexually abused and the Petitioner's mother's claim that the Petitioner had been sexually abused. The evidence supporting the Petitioner's mother's claim was derived solely from the Petitioner telling her of the abuse. Trial counsel's investigation did not uncover any witnesses to the abuse (other than the Petitioner), police reports, medical records, social service reports or other evidence corroborating the alleged sexual abuse. Even after habeas counsel's independent investigation into the alleged abuse, the state habeas court was not presented with any independent evidence of sexual abuse.

The Petitioner claims that other sources of evidence corroborating sexual abuse were "readily available." (Petitioner's Br., at 50.) The Petitioner cites the affidavits of the Petitioner's mother, Darlene Bearden, the Petitioner's cousin, Sheila Muller, and the Petitioner's army friend, Jodi Stephens. Muller and Stephens were not interviewed by trial counsel. Nonetheless, this Court cannot find that the state habeas court's conclusion—that trial counsel's decision to stop its investigation into the Petitioner's life history where it did was reasonable—was contrary to, or an unreasonable application of, Supreme Court precedent. "Counsel is not required to investigate and present all available mitigating evidence in order for counsel's investigation to be reasonable." Ford v. Hall, 546 F.3d 1326, 1333 (11th Cir. 2008) (citing Burger v. Kemp, 483 U.S. 776, 794-95 (1987)). There must be some stopping point in the investigation. It was highly unlikely that further interviews would lead to persuasive evidence of sexual abuse when trial counsel made the decision to stop interviews, and quite frankly, as discussed in the evaluation of prejudice, infra, they did not.

The Petitioner highlights language in Steve Reilly's affidavit, which was produced several years after the sentencing phase of the Petitioner's trial. Reilly stated: "Having reviewed the detailed information provided by other family members in the affidavits referenced hereafter, I realize that I should have more thoroughly investigated this information and presented it during the sentencing phase." (Res. Ex. 83, at 313.) While laudable that Reilly is willing to testify to his own error for the benefit of his former client, this testimony does not persuade the Court that his decision to forego further interviews was unreasonable. The Supreme Court has explicitly stated that the state habeas court should consider what a reasonable attorney would have done at the time the decision was made, and not with the benefit of hindsight. See Rompilla, 545 U.S. at 381. Reilly's testimony does not support the claim that his decision was deficient at the time it was made.

The state habeas court concluded that "trial counsel made a reasonable strategic decision not to present [evidence of sexual abuse]." (Res. Ex. 123, at 49.) In light of the uncorroborated nature of the Petitioner's claims and her mother's claims, this was not an unreasonable determination. As Reilly testified at the habeas evidentiary hearing, "[A]nything we were going to put up in sentencing had to be substantiated to the point that it was credible in the eyes of the jury, that couldn't be tossed aside as some additional attempt as described that way by the State to defect blame." (Res. Ex. 83, at 140.) The state sought to portray the Petitioner as a liar, an unfaithful spouse, a schemer and a manipulator of others. Seasoned trial lawyers have a sense of when presenting flimsy evidence of doubtful relevance does more harm than good. The state habeas court determined that the Petitioner's trial counsel made a strategic decision to refrain from presenting weak evidence of sexual abuse at the sentencing hearing, which is a finding of fact that this Court deems reasonable. Having found that the investigation was sufficient, trial counsel's strategic decision to not present evidence of sexual abuse was reasonable. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.").

The Petitioner also claims that trial counsel were ineffective in investigating mental health issues. The state habeas court determined that trial counsel's investigation of the Petitioner's mental health issues was reasonable. That finding was not an unreasonable determination of the facts or contrary to, or an unreasonable application of, Supreme Court precedent. The Petitioner's habeas counsel procured three experts, Dr. Mindy Rosenberg, Dr. William Bernet, and Dr. Myla Young, who have stated that the Petitioner has serious mental health problems. Habeas counsel contends that the Petitioner's trial counsel "failed to conduct a constitutionally adequate investigation of potential avenues of mitigation, including mental health evidence." (Petitioner's Br., at 55.) This Court disagrees. The Court credits the state habeas court's factual determination that Dr. Jim Stark, a psychologist, investigated potential mitigating circumstances relating to mental health issues in addition to investigating possible insanity for the guilt phase. However, assuming, arguendo, that Dr. Stark only investigated "insanity" and "retardation," this Court would still not find that the state habeas court contravened or unreasonably applied Supreme Court precedent in finding counsel's investigation reasonable.

The Petitioner relies upon Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011) to argue that an attorney who conducts an insanity investigation alone, and does not delve into mental health issues for mitigation purposes, performs in a constitutionally deficient manner. See Ferrell, 640 F.3d at 1213 ("As for the first and most critical point, the mental health expert who examined [petitioner] before trial. . .averred that he had not been asked to look for brain damage, that he was provided with no material from counsel other than school records, and that he was not asked to perform any clinical interview, or do anything else for that matter, for use in mitigation.") (emphasis in original). This Court does not review the state habeas court's decision under Ferrell because it is not Supreme Court precedent and it was decided after the state habeas court issued its ruling. Nevertheless, this case is distinguishable from Ferrell, as well as any Supreme Court case that found that trial counsel did not satisfy its Sixth Amendment burden when it did not investigate mental health. Unlike Ferrell and Wiggins, the Petitioner's self-reported history did not exhibit "red flags" tending to show mental health problems. In Ferrell, the petitioner suffered a seizure during the charge conference; "[h]e fell to the floor, `flopping,' shaking and crying out unintelligibly." Ferrell, 640 F.3d at 1206. The Ferrell petitioner also had other conspicuous mental problems. Id. at 1215-20. In Wiggins, trial counsel uncovered evidence that the petitioner had a very difficult childhood, but did not investigate further and did not present any of this evidence at the sentencing hearing. Wiggins, 539 U.S. 510, 525 ("The scope of their investigation was also unreasonable in light of what counsel actually discovered in the DSS records.").

In the present case, unlike Wiggins, "the known evidence would [not have] lead a reasonable attorney to investigate further." Wiggins, 539 U.S. at 527. The state habeas court found that trial counsel took the following actions related to a mental health investigation: investigator Dennis Miller, who was hired by the Petitioner's trial counsel, obtained the Petitioner's mental health and medical records, (Res. Ex. 123, at 38-39), and trial counsel asked the Petitioner's mother, on the previously mentioned questionnaire entitled "Suggested Areas to Explore in Defendant's History," about the Petitioner's mental health. On the questionnaire, the Petitioner's mother stated that the Petitioner's family had no history of mental illness, that the Petitioner had no mental health history and that there was "no indication of sexual or physical abuse by parents, siblings, relatives or others." (Res. Ex. 106, at 7356-57.) The Petitioner was a high school graduate and served three years in the Army. In addition, trial counsel never testified that they personally perceived that the Petitioner had mental health problems. Compare Ferrell, 640 F.3d at 1216 (Petitioner's initial trial counsel had "serious questions about [petitioner's] mental health.").

After conducting this investigation, including the interview with Dr. Stark, discussed infra, the only evidence that trial counsel had that suggested potential mental health problems was the Petitioner's "Progress Notes" from her voluntary visit to Northeast Georgia Community Mental Health Center in 1995. (Res. Ex. 99, at 5080-5092.) The handwritten notes discuss the Petitioner's apparent trouble maintaining her temper with her children and her high level of stress. (Id. at 5085.) However, one line of the handwritten notes, not cited by either party, appears to say "3 months ago—had serious suicidal thoughts and plan." (Id. at 5088.) The Petitioner's history would not lead one to suspect that she had mental health problems, as she obtained her high school diploma, was never arrested prior to the murder, and no one in the Petitioner's immediate family had been arrested. "[C]ounsel is not required to seek an independent evaluation when the defendant does not display strong evidence of mental problems." Callahan v. Campbell, 427 F.3d 897, 934 (11th Cir. 2005). The Petitioner did not display strong evidence of mental problems of significant relevance on the issue of mitigation, excusing trial counsel from investigating further.

Furthermore, the state habeas court concluded that Dr. Stark did investigate the Petitioner's mental health for potential mitigating issues, and this Court cannot find that the state habeas court's factual conclusion was unreasonable. According to Steve Reilly, Dr. Stark's evaluation did not uncover anything "real helpful." (Res. Ex. 88, at 1684-85.) Trial counsel, interviewed several years after the investigation, was unsure whether Dr. Stark's investigation was limited to determining whether there was a "retardation" or "insanity" defense, or whether it also extended into determining if there were potential mitigating mental health problems. Ed Wilson testified at the state habeas evidentiary hearing, "I'm sure I wanted him to check particularly to see if there were a retardation defense involved or if there would have been any sort of insanity or any place to go in that. Beyond that I'm not sure if we went any further with that." (Res. Ex. 83, at 61.) Wilson also testified, "[W]e may not have specifically oriented him toward mitigation. I think I primarily had him searching for a defense of either retardation or insanity." (Id. at 90.) Yet, when asked whether he would have considered using a mental health expert in mitigation, he said "yes," and when asked whether he could have asked Dr. Stark to evaluate the Petitioner for mitigation purposes, he said "yes." (Id. at 90-91.) Reilly was also unsure whether Dr. Stark had evaluated the Petitioner for mitigation purposes, testifying, "I know I didn't work with him or supply any information to him in regard to mitigation. I, and again this is my own independent recollection, I think that Ed, during his conversations with Dr. Stark about his assessment of Kelly and his visits with her, I assume and I believe that that covered issues which potentially might have been utilized for mitigation purposes." (Id. at 144-45.) However, Reilly did remember that Dr. Stark concluded that the Petitioner was bi-sexual and that her rejection of this sexual orientation may have been at the root of her infidelity. (Id.); (Res. Ex. 88, at 1760-61.) Such a conclusion is clearly outside of the scope of "retardation" and "insanity." The record is unclear and the Court cannot say that the state habeas court's conclusion was unreasonable. Furthermore, if the state habeas court was unsure whether trial counsel asked Dr. Stark to investigate mitigating mental health issues, it correctly gave counsel "the benefit of the doubt" that counsel took such action. See Strickland, 466 U.S. at 689 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . ."); Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999) ("[W]here the record is incomplete or unclear about [counsel's] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment."). Even without Dr. Stark's investigation into mental health evidence, but especially with it (and Dr. Stark's failure to uncover anything "real helpful"), the Court cannot find that the state habeas court's determination—that counsel acted reasonably in its investigation of potentially mitigating mental heath evidence—was contrary to, or an unreasonable application of, Supreme Court precedent. "[T]he mere fact a defendant can fin years after the fact, a mental health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial." Reed v. Secretary, Fla. Dep't of Corr., 593 F.3d 1217, 1242 (11th Cir. 2010). The Court cannot find that the state habeas court unreasonably determined facts or acted contrary to, or unreasonably applied Supreme Court precedent, in concluding that "trial counsel's investigation and presentation of the sentencing phase of Petitioner's case did not constitute deficient performance." (Res. Ex. 123, at 51.)

Even if trial counsel's performance were constitutionally deficient, the state habeas court found that the absence of mitigating evidence of sexual abuse and mental health issues at the sentencing hearing was not prejudicial to the Petitioner. The state habeas court correctly weighed the importance of the new sexual abuse and mental health evidence together in determining that its absence was not prejudicial to the Petitioner, stating, "Even if the Court were to conclude that counsel's performance was deficient, there is not a reasonable probability, that but for this performance, the result of Petitioner's trial would have been different." (Res. Ex. 123, at 52.) Like the state habeas court, this Court will consider the weight of the mitigating evidence of sexual abuse and mental health issues together. The Supreme Court has instructed that "[i]n assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 539 U.S. at 534. "In that process, what matters is not merely the number of aggravating or mitigating factors, but their weight." Reed, 593 F.3d at 1240-41 (citing Bobby v. Van Hook, 130 S.Ct. 13, 20 (2009)).

The state habeas court found that there was no prejudice to the Petitioner from the sexual abuse evidence not being raised during the sentencing proceedings, as the evidence presented by habeas counsel was unconvincing. Regarding the sexual abuse evidence, the state habeas court stated that "the allegations of abuse in Petitioner's background contained in the affidavits presented by present counsel are largely uncorroborated. There is no independent documentary evidence such as mental health record, DFACS report, police report, or court record confirming these allegations. . .some of the evidence of abuse presented to this Court is at best in conflict. . .the prosecution surely could have challenged this evidence by presenting the testimony of Petitioner's family members." (Res. Ex. 123, at 49-50) (emphasis added). In finding that the Petitioner was not prejudiced by the absence of sexual abuse evidence, the state habeas court distinguished this case from Rompilla, where there was "a wealth of mitigating information" that Rompilla's trial counsel failed to uncover. (Id. at 50.) Here, there was no "smoking gun"; the Petitioner's new evidence was highly contested in the state habeas proceedings. (Id. at 50.) The additional evidence that habeas counsel was able to uncover was not the testimony of individuals who witnessed any of the alleged sexual abuse, but rather individuals testifying that the Petitioner had told them about the abuse. And these claims by the Petitioner tend to grow as her situation becomes more and more desperate. This Court cannot find that the state habeas court made an unreasonable factual determination in concluding that new sexual abuse evidence was unpersuasive.

Also, in concluding that the absence of the sexual abuse testimony and mental health testimony combined was not prejudicial, by inference the state habeas court could not have found that there was a reasonable probability that the result of the sentencing proceeding would have been different if the Petitioner's new mental health evidence had been presented.3 This Court agrees that the Petitioner was not prejudiced by the absence of the new mental health evidence. The new mental health evidence is unpersuasive.

Dr. Rosenberg bases her report on a social history evaluation that the Court finds to be biased towards uncritical acceptance of the Petitioner's self-reports of traumatic childhood experiences. The Court does not find this surprising as Dr. Rosenberg was hired by the Petitioner, and has testified for the defense in all of the approximately sixteen to twenty cases in which she has participated. (Res. Ex. 89, at 1995-97); see Suggs v. McNeill, 609 F.3d 1218, 1230 (11th Cir. 2010) ("[A] reasonable jury is likely to have been highly skeptical of a penalty-phase expert who. . .testifies in many habeas proceedings and usually. . .on behalf of the defense.") (internal quotations omitted). Despite Dr. Rosenberg's statement that she requires both positive and negative reports for her to test the veracity of an individual's statements, the Court strains to see any mention of the Petitioner's positive life events in Dr. Rosenberg's report. Dr. Rosenberg clearly focuses on the Petitioner's negative relationships and exaggerates their importance. For example, Dr. Rosenberg chronicles the negative aspects of the life of the Petitioner's uncle, Eskin Conaway over five pages; she then testified during her deposition that Eskin "was always in [Petitioner's] life until he died." (Res. Ex. 84, at 433-38; Res. Ex. 89, at 2073.) However, Eskin died when the Petitioner was approximately ten years old; furthermore, the Petitioner's mother said that she did not visit Eskin often and the Petitioner's brother recalls going to Eskin's house only once. (Res. Ex. 109, at 8403, 8404; Res. Ex. 106, at 7529.) When compared to Dr. Rosenberg's one paragraph account of the Petitioner's Uncle Barry Don, about whom Dr. Rosenberg was apparently unable to find negative information, Dr. Rosenberg's slant is evident. When faced with conflicting reports, Dr. Rosenberg credits those that portray family members in a negative light and credits those that state that incidents of abuse were more severe. The Court believes that Dr. Rosenberg's report would be unpersuasive to a jury, which would have heard testimony from several family members that would conflict with the report.

Dr. Young concluded that the Petitioner had been experiencing "overwhelming emotional stress and psychological distress" and had suffered from frontal lobe brain damage. (Res. Ex. 84, at 402.) There is no evidence to support the opinion of frontal lobe brain damage. Dr. Young's opinion about this would not be admissible in a federal trial court under Rule 702 of the Federal Rules of Evidence. The Court is not surprised that a prison inmate that had been sentenced to death would suffer from emotional stress and psychological distress, and this conclusion is not compelling mitigating evidence regarding the Petitioner's state of mind at the time the crime was committed or regarding mental health problems. Furthermore, Dr. Young reached these conclusions in a highly questionable way. Dr. Young used the Rorschach test, which she admitted is considered highly unreliable by the psychiatric community. (Res. Ex. 89, at 1930.) Dr. Young also conceded that she did not have a mechanism to determine that the Petitioner was not malingering during this test. Moreover, Dr. Young did not use an MRI or CAT scan to determine that the Petitioner suffers from frontal lobe damage, but used her subjective testing. Dr. Young also based her conclusions on Dr. Rosenberg's questionable social history evaluation without doing any independent interviews herself. The Court believes that Dr. Young's conclusions would be unpersuasive to a jury.

Dr. Bernet diagnosed the Petitioner with Posttraumatic Stress Disorder ("PTSD"), Cognitive Disorder, Dysthymic Disorder, and dependent, passive and submissive personality traits. (Res. Ex. 84, at 349.) Dr. Bernet concluded that these disorders "would have impaired Ms. Gissendaner's ability to premeditate, deliberate and carry out the plan that she is alleged to have masterminded" and "that the capacity of Ms. Gissendaner to appreciate the wrongfulness of her behavior or to conform her conduct to the requirements of the law was impaired by the cumulative affect of her mental disorders." (Res. Ex. 84, at 368-69.) Like Dr. Young, Dr. Bernet took Dr. Rosenberg's questionable report at "face value," applying its determinations to make his conclusions without personally verifying its contents. (Res. Ex. 88, at 1826.) Dr. Bernet admitted that if the social history reports that were provided to him were shown to be incorrect that this would "weaken" or "diminish the usefulness" of his evaluation. (Res. Ex. 88, at 1832, 1834.) Furthermore, his conclusion about the Petitioner's inability to "mastermind" the crime is dramatically undercut by his testimony that the only trial testimony he reviewed from the guilt phase was that of Gregory Owen and Laura McDuffie, because he was not "trying to figure out whether or not she actually committed the crime." (Res. Ex. 88, at 1841, 1847.) Furthermore, when confronted with facts tending to show that the Petitioner did have a plan to kill Mr. Gissendaner, Dr. Bernet retreated from his position that the Petitioner could not have planned the murder by saying that "having a bad plan is consistent with a person whose abilities are impaired to some extent." (Res. Ex. 88, at 1850-51.) Dr. Bernet's conclusion that the Petitioner had PTSD is strongly undermined by Dr. Garlick's 2001 conclusion that she did not have PTSD, especially considering that Dr. Bernet spent far less time with the Petitioner than Dr. Garlick did and Dr. Bernet did not review Dr. Garlick's notes. (Res. Ex. 88, at 1818-1820.) The Court believes that Dr. Bernet's conclusions would be unpersuasive to a jury. The Court finds that even if trial counsel had uncovered all of the new evidence of abuse and all of the new evidence of mental health problems that there is not a "reasonable probability" that the outcome of the sentencing proceeding would have been different. Strickland, 466 U.S. at 695.

2. Expert Testimony Challenging the State's Physical Evidence

The Petitioner argues that trial counsel was ineffective in its failure to adequately challenge the State's use of unreliable crime scene, pathology, and DNA evidence. (Petitioner's Br., at 91-92.) The state habeas court found that trial counsel's failure to hire experts to challenge the forensic evidence did not constitute deficient performance. (Res. Ex. 123, at 51-52.) This Court cannot find that the state habeas court's decision was based upon an unreasonable determination of the facts or was contrary to, or an unreasonable application of, Supreme Court precedent.

The Petitioner claims that trial counsel should have hired a crime scene expert, a pathologist, and a DNA expert. The state habeas court reached the factual conclusion that trial counsel did hire Dr. Jung Choi as a DNA expert, which is not an unreasonable determination of fact. (Res. Ex. 123, at 51.) Trial counsel's decision to not utilize Dr. Choi at trial was a strategic decision, which is entitled to great deference. See Strickland, 466 U.S. at 690. Mr. Wilson testified that he felt confident that he could cross-examine the State's pathologist on the pertinent issues, (Res. Ex. 83, at 98), and that he would have hired an independent pathologist if he thought that one was needed. (Res. Ex. 88, at 1694.) Again, trial counsel made a strategic decision not to retain a pathologist. Trial counsel hired an investigator, Dennis Miller, who visited the crime scene several times with trial counsel, and who reviewed the physical evidence. The Petitioner argues that a crime scene expert and pathologist would have determined that the murder of Mr. Gissendaner did not occur the way that the State portrayed it during trial, and necessarily involved the participation of a third party. Trial counsel's strategic decision to abstain from hiring a crime scene expert and pathologist was reasonable, as the State never contended that the Petitioner participated in the actual killing or was present when the kidnaping or murder took place. (Res. Ex. 123, at 51.) Furthermore, "[e]ven if such experts had been retained by trial counsel, the key fact of the State's case would remain unchallenged: that Greg Owen killed the Victim at the request of Petitioner." (Id.) Knowing this, it was reasonable to think that such an investigation would have been a waste of trial counsel's resources; furthermore, the Court's prejudice evaluation concludes that habeas counsel did not present any evidence in the habeas evidentiary hearing that demonstrated that such an investigation would have been worthwhile.
The new crime scene and DNA evidence presented by habeas counsel would not have changed the outcome of the Petitioner's trial, and thus its absence was not prejudicial. The state habeas court stated that "[t]he testimony of such experts would not have reduced or mitigated Petitioner's role in the crime even if such evidence had established the involvement of a third party." (Res. Ex. 123, at 51.) The claim that a third party assisted Owen in the murder is even more improbable than Owen's original story. The state habeas court's legal conclusion is not contrary to, or an unreasonable application of, Supreme Court precedent.

3. Trial Counsel's Challenge to Greg Owen's Testimony

The Petitioner argues in her Amended Petition, and implies in the prosecutorial misconduct section of her brief (but does not present an argument in the ineffectiveness of counsel portion of her brief), that trial counsel failed to adequately challenge Greg Owen's testimony. The state habeas court found that trial counsel was not deficient in challenging Owen's testimony, and this Court does not find that conclusion to be an unreasonable determination of the facts or contrary to, or an unreasonable application of, Supreme Court precedent.

Trial counsel's performance in this area was not deficient. As determined by the state habeas court, trial counsel was able to elicit the following inconsistent facts in Owen's testimony on cross-examination: "Owen originally lied to police regarding his whereabouts on the night of the murder"; "Owen admitted he did not implicate Petitioner in the murder until after the police had informed him that she was also seeing other men"; "Owen repeatedly told police that Petitioner had not come to the scene of her husband's murder and did not testify at his plea hearing that Petitioner was at the scene of the murder on the night of the crime"; "What Owen did with the murder weapon, his clothes and several personal items"; "That Owen lied to police when he had informed them that he drove around after killing the Victim waiting for Petitioner to page him." (Res. Ex. 123, at 47-48.) The state habeas court's factual determination that the above inconsistencies were brought out by trial counsel is reasonable. The legal conclusion that trial counsel was not ineffective because he failed to impeach Owen on other inconsistencies is not contrary to, or an unreasonable application of, Supreme Court precedent.

Even if trial counsel's performance were deficient, the Petitioner was not prejudiced. The state habeas court concluded: "Even if the Court found trial counsel's performance to be deficient in failing to elicit all inconsistencies in Owen's testimony, there is no evidence that the additional inconsistencies cited by Petitioner would have made a difference in the outcome of the case, particularly given the number and relevance of the inconsistencies trial counsel did elicit." (Res. Ex. 123, at 48.) This Court cannot find the state habeas court's conclusion to be unreasonable as to the facts or to be contrary to, or an unreasonable application of, Supreme Court precedent.

B. Prosecutorial Misconduct

The Petitioner alleges that the state prosecution team suppressed material exculpatory evidence, presented false evidence, and manufactured evidence for use against the Petitioner at trial, in violation of the United States Constitution, as enunciated specifically in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). The state habeas court denied the Petitioner relief on these claims, and this Court cannot find that the state habeas court unreasonably determined facts or reached conclusions that were contrary to, or an unreasonable application of, Supreme Court precedent.

1. Brady

Due process is violated when the prosecution suppresses evidence, irrespective of good or bad faith, that is favorable to the defense and material to the defendant's guilt or punishment. Brady, 373 U.S. at 87. The standard for analyzing whether the state violated Brady was correctly recited by the state habeas court as follows:

A Brady violation has four main parts: 1) the State possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it [herself] with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different.

(Res. Ex. 123, at 22.)

The Petitioner argues that the state prosecutors violated Brady by proposing to Owen that he testify that the Petitioner went with him to the crime scene. During the October 21, 1998 interview with the prosecution team, Owen stated for the first time that the Petitioner came to the crime scene on the night of the murder. Previously during the same interview, and on several prior occasions, Owen claimed that the Petitioner had not come to the crime scene. Assistant District Attorney George Hutchinson's notes from that interview contain the phrase "why not tell defendant there" (Res. Ex. 85, at 723), with a question mark indicating that one of the prosecutors asked the question, and marked with an arrow because it was "something that seemed of significance." (Res. Ex. 83, at 257-58.) On the next page of the notes, there is the first recorded mention of Owen stating that the Petitioner was indeed at the scene of the crime on the night of the murder. (Res. Ex. 83, at 256.)

The Petitioner argues that Hutchinson's notes provide proof that state prosecutors prompted Owen to testify that the Petitioner was at the crime scene. All three members of the state prosecution team, Assistant District Attorney Nancy Dupree (Res. Ex. 83, at 224), Chief Assistant District Attorney Phil Wiley (Res. Ex. 83, at 242), and Hutchinson (Res. Ex. 83, at 259), testified at the habeas evidentiary hearing that they never suggested to Owen that he should make the Petitioner appear to be more culpable in the crime. The state habeas court determined that Hutchinson's note "why not tell defendant there?" did not prove that prosecutors influenced Owen to change his testimony.4 The Court is unable to find the state habeas court's conclusion to be an unreasonable determination of fact.

The Petitioner also argues that state prosecutors violated Brady when they did not provide the Petitioner with their handwritten notes from an October 21, 1998 interview with Owen. Prosecutors did provide the Petitioner with a typed summary of the interview. The Petitioner contends that this summary was inadequate, as it lacked the following statements from Owen: The Petitioner provided the accelerant Owen used to burn the victim's car after Owen brought the accelerant from his house and put it in the Petitioner's car; the accelerant was kerosene, not gasoline; the Petitioner drove Owen to the crime scene prior to the murder; the Petitioner gave Owen the knife and night stick from the trunk of her car instead of from under her seat; the Petitioner handed Owen the kerosene rather than throwing it out of the window; and Owen put the murder weapons, victim's possessions, and his own clothes in a trash bag and discarded them a week after the crime. (Res. Ex. 85 at 712-24.)

In order to demonstrate a Brady violation, the Petitioner must show that the suppressed evidence was material, i.e., there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985). The state habeas court found that the handwritten notes were improperly withheld, but that the evidence would not have made a difference in the outcome of the case. (Res. Ex. 123, at 26.) As the state habeas court was aware, it should have ruled for the Petitioner if it had found that there was a reasonable likelihood that if the withheld information had been provided that the result of the guilt phase or the sentencing phase would have been different. (Res. Ex. 123, at 25); Kyles v. Whitley, 514 U.S. 419, 436 (1995). A reasonable likelihood "does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Id. (citing Bagley, 473 U.S. at 682). When considering the materiality of withheld evidence, all of the evidence should be considered collectively and not item by item. Kyles, 514 U.S. at 436. The state habeas court denied the Petitioner's Brady claim because it did not believe that the withheld evidence was collectively material. This Court does not find that the state habeas court's finding was contrary to, or an unreasonable application of, Supreme Court precedent.

Owen testified at trial and at the state habeas evidentiary hearing that the Petitioner had the kerosene with her in her car when she came to the crime scene. (Res. Ex. 35, at 2304-06; Res. Ex. 83, at 32.) The typed summary of the October 21, 1998 interview also includes Owen stating the same fact, but omits that Owen said that he brought the kerosene from his home and put it in the Petitioner's car beforehand. This statement can only be found in the prosecution team's handwritten notes. (Res. Ex. 85, at 727.) The state habeas court found this evidence to be immaterial because the accelerant "was not used in the actual killing or in furtherance of any aggravating factor." (Res. Ex. 123, at 23-24.)

However, the state habeas court did find that the notes regarding the accelerant could have been used to impeach Owen. The state habeas court also found that the notes stating that the accelerant was kerosene rather than gasoline, and that the Petitioner drove Owen to the crime scene prior to the murder,5 could have been used to impeach. (Res. Ex. 123, at 23-24.) Suppressed favorable evidence can be either impeaching or exculpatory; the state habeas court found the evidence regarding the Petitioner's presence at the crime scene and the origin of the accelerant to be impeaching only.6 (Res. Ex. 123, at 22); Brady, 373 U.S. at 88; Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Nonetheless, the state habeas court did not find that this impeaching evidence would have had a reasonable likelihood of changing the result. The state habeas court reasoned that defense counsel brought to the jury's attention many inconsistencies in Owen's trial testimony, making further impeachment less vital, and that the prosecution presented a myriad of evidence in addition to Owen's testimony that tended to show the Petitioner's guilt. (Res. Ex. 123, at 25-26.) This Court does not find the state habeas court's determination that the withheld evidence was immaterial to be unreasonable factually, or contrary to, or an unreasonable application of, Supreme Court precedent.

2. Giglio

The Petitioner also argues that the prosecution presented Owen's testimony knowing that parts of it were false, in violation of Giglio v. United States, 405 U.S. 150 (1972). The standard for establishing a Giglio claim was correctly laid out by the state habeas court as follows: "Petitioner must establish that Owen's testimony was false; that the prosecution knew or should have known that the testimony was false; and that the false testimony was material." (Res. Ex. 123, at 26) (citing Jacobs v. Singletary, 952 F.2d 1282, 1287 (11th Cir. 1992)). The state habeas court determined that the Petitioner did not prove a Giglio violation. The state habeas court's discussion of this claim was based on two grounds: 1) the Petitioner did not establish that Owen's trial testimony was false, and 2) there was no evidence that the prosecution knew Owen's testimony was false. The state habeas court did not address whether the testimony at issue was material.7

Owen's story of the events in question changed several times over the course of his many interviews with the prosecution, his testimony at trial, and his testimony at the state habeas court. The state habeas court, faced with fluctuating testimony, was charged with determining which version of Owen's testimony was the truth. The state habeas court appears to quickly dismiss Owen's versions of the story not told in a court under oath, but still confronts significant factual differences between the stories told by Owen at trial and those told at the habeas evidentiary hearing. The most significant differences are:

Owen now maintains that he testified falsely at trial. He now maintains that: 1) Ms. Gissendaner did not supply the knife; 2) she was not involved in the planning of the actual killing; 3) Owen had the help of a third person whom he recruited in the abduction and killing; 4) Ms. Gissendaner did not know the third person was involved; and 5) Ms. Gissendaner never went to the murder scene to ensure her husband was dead.

(Res. Ex. 123, at 27.)

The state habeas court held that Owen's potential recantation at the habeas evidentiary hearing did not prove his trial testimony was false, and thus that the Petitioner failed to establish prong 1 of the Giglio/Jacobs test. The state habeas court reasoned: "The Georgia Supreme Court gives more credit to trial testimony than to post trial recantations." (Res. Ex. 123, at 27.) The state habeas court quotes Norwood v. State, 273 Ga. 352 (2001):

That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant's guilt, has since the trial made statements even under oath that his former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial.. . . The only exception to the rule against setting aside a verdict without proof of a material witness' conviction for perjury, is where there can be no doubt of any kind that the State's witness' testimony in every material part is purest fabrication. Fugitt v. State, 251 Ga. 451(1), 307 S.E.2d 471 (1983). A recantation impeaches the witness' prior testimony. However, it is not the kind of evidence that proves the witness' previous testimony was the purest fabrication.
Norwood, 273 Ga. at 353.

The state habeas court applied the Norwood standard and found that the Petitioner did not prove that Owen's trial testimony "`was in every material part' `purest fabrication' or, in other words, prove[] that his testimony was impossible." (Res. Ex. 123, at 27.) Specifically, the state habeas court found that "[t]here is no evidence that it was impossible for Petitioner to give Owen the murder weapon, no evidence that it was impossible for Petitioner to have come to the scene of the crime, and no evidence that it was impossible for Owen to have committed this crime without the assistance of an alleged `third' person. . . .The Court finds [the testimony at the habeas evidentiary hearing] to be one more story told by a witness prone to telling multiple stories." (Res. Ex. 123, at 27-28.)

The Petitioner argues that the state habeas court misapplied United States Supreme Court law by looking to Georgia law for the standard for determining whether the trial version or habeas evidentiary hearing version was the truth, when "the proper standard for consideration of the federal false testimony claim is set forth in Giglio and Napue." (Petitioner's Br., at 222.) The Petitioner does not clarify what that standard is, however, and the Court is unable to determine how those cases provide guidance for a court attempting to decipher whether a recantation proves trial testimony to be false. In neither Giglio nor Napue v. People of State of Ill., 360 U.S. 264 (1959), does the Court struggle to determine the truth between conflicting testimony, and in neither case does the Court articulate a standard for determining the truth. In Giglio, after the government's principal witness testified that he was given no assurances that he would not be prosecuted in return for testifying, a government prosecutor admitted in an affidavit that he had made such a promise to the witness. The Court does not question the truth of the prosecutor's affidavit. In Napue, similarly, there is no real question about whether the witness testified falsely—the second sentence of the opinion already alludes to the "witness' false testimony." In both cases the State admitted that the trial testimony was false. The Court is not forced to resolve difficult factual questions in either case, and does not provide guidance for how to solve the type of problem presented here. Thus, the state habeas court did not act contrary to, or misapply, Supreme Court precedent by searching for guidance from the Georgia Supreme Court on how to resolve the factual conflict before it.

The state habeas court did not misapply Supreme Court precedent by applying Norwood to determine the factual conflict before it. In applying Norwood, the state habeas court was not unreasonable in concluding that the Petitioner had not proven the trial testimony to be false. Nothing that Owen said at the habeas evidentiary hearing made his testimony at the trial impossible. As the state habeas court wrote, the habeas testimony was simply "one more story told by a witness prone to telling multiple stories." (Res. Ex. 123, at 28.) The state habeas court also made the factual finding that "there is no evidence before this Court to support the allegations that the prosecutors knew the testimony was false." (Id.) This Court cannot find that factual finding to be unreasonable. In denying the Petitioner's Gigilio claim, the state habeas court did not unreasonably determine the facts, or act contrary to, or unreasonably apply, Supreme Court precedent. Indeed, this Court recognizes that the story told by Owen in the evidentiary hearing is even more improbable than the story he told at the trial.

C. Proportionality of the Death Sentence

Pursuant to O.C.G.A. § 17-10-35, the Supreme Court of Georgia reviews all death sentences to determine whether the sentence is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." O.C.G.A. § 17-10-35(c)(3). The Petitioner says that her sentence is disproportionate and that the Georgia Supreme Court conducted an inadequate and "perfunctory" proportionality review. (Petitioner's Br., at 229.) The Petitioner does not have a constitutional right to a proportionality review. See Pulley v. Harris, 465 U.S. 37, 46-51 (1984); Barbour v. Haley, 471 F.3d 1222, 1231 (11th Cir. 2006). Moreover, the Eleventh Circuit has explicitly stated that district courts should not review the state supreme court's proportionality review. Mills v. Singletary, 161 F.3d 1273, 1282 n.9 (11th Cir. 1998) (citing Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir. 1983) ("A federal habeas court should not undertake a review of the state supreme court's proportionality review. . .)). Thus, the Court will not do so here.

D. Actual Innocence

The Petitioner argues that she is not guilty of the crime of malice murder, and seeks this Court's review of the Georgia Supreme Court's ruling upholding her guilty verdict.8 The standard for demonstrating innocence before a habeas court is very high. Having been previously found guilty beyond a reasonable doubt, she "no longer has the benefit of the presumption of innocence." Schlup v. Delo, 513 U.S. 298, 326 (1995). She must establish:

that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.

Id. at 329. In addition, she must allege a cognizable constitutional error. Id. at 321; Murray v. Carrier, 477 U.S. 478, 496 (1986). As discussed in the other sections of this Order, the Petitioner has not presented a cognizable claim of a constitutional violation. Furthermore, the Petitioner has not demonstrated that she is innocent. Therefore, the Petitioner cannot make a successful claim for actual innocence before this Court and also cannot meet the extremely high standard of showing a miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 336 (1992); [Doc. 39, at 11-13].

E. Jury Selection

This Court found the Petitioner's clam that the grand jury was discriminatorily selected to be procedurally defaulted [Doc. 39, at 16]. This Court also found the Petitioner's claim that the grand jury foreman was selected discriminatorily to be procedurally defaulted [Doc. 39, at 16]. Moreover, the discriminatory selection of a grand jury foreman does not threaten a defendant's constitutional rights, as the position is "ministerial," and thus cannot provide a basis for habeas relief. Hobby v. United States, 468 U.S. 339, 344-45 (1984); Ingram v. State, 253 Ga. 622, 627 (1984). The Court also found that the Petitioner had procedurally defaulted her claim that the jury pools from which the grand and traverse juries were selected had violated her constitutional rights. [Doc. 39, at 16]. The Petitioner has not provided an argument showing cause and prejudice or a miscarriage of justice to overcome the default of any of these claims. Furthermore, the Petitioner has not proved the selection of the jury pools violated the United States Constitution. See Duren v. Missouri, 439 U.S. 357, 364 (1979) (stating the requirements to prevail on a Sixth Amendment jury pool composition challenge); Castaneda v. Partida, 430 U.S. 482, 494 (1977) (stating the requirements to prevail on a Fourteenth Amendment jury pool composition challenge).

The Petitioner also claims that the jury commission which selected the traverse jury was unconstitutionally comprised because it contained five rather than six members. The Court has no evidence before it substantiating the Petitioner's claim that there were only five members on the jury commission. Furthermore, the Petitioner states that this is a violation of O.C.G.A. § 15-12-20, but does not state how a five-member jury commission offends the United States Constitution.9

F. Jury Charge

The Petitioner argues that she was denied a fair capital sentencing proceeding, in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, when the trial court refused to instruct the jury that their failure to reach a unanimous decision would automatically lead to a sentence of life imprisonment.10 The trial judge instructed the jury that their "verdict as to penalty must be unanimous." (Res. Ex. 38, at 2906.) The trial judge did not instruct the jury that their inability to reach a unanimous verdict would ultimately result in the jury's dismissal and the judge imposing a sentence of either life imprisonment or imprisonment for life without parole. O.C.G.A. § 17-10-31(c). The Petitioner argues that the judge misled the jury by telling them their verdict had to be unanimous when in practice had one of the members of the jury refused to vote for the death penalty, the Petitioner could not have been sentenced to death. The Respondent counters that the judge did not mislead the jury because he told the truth; the jury had to reach a unanimous verdict or the jury would have been dismissed and the judge would have imposed the sentence.

The Court agrees that the judge did not improperly instruct the jury. Furthermore, the Court does not believe that the trial judge was required to augment his instructions by notifying the jury as to what would happen if the jury failed to reach a unanimous verdict and had to be dismissed in favor of a judge-imposed sentence. The judge is not required to inform the jury as to all of the ramifications of their decision, see, e.g., United States v. Muentes, 316 Fed. Appx. 921, 926 (11th Cir. 2009) ("A defendant is not entitled to an instruction informing the jury of the consequence of a guilt or innocence finding in terms of punishment"), or even all of their options. For example, the judge is allowed to instruct the jury to convict a defendant if they find proof that the defendant is guilty beyond a reasonable doubt, thereby impliedly foreclosing their ability to exercise jury nullification. See, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983); United States v. Carr, 424 F.3d 213, 218-20 (2d Cir. 2005) ("[A] trial court is not required to inform a jury of its power to nullify."). Just like jury nullification, the power of an individual juror to force a judge-imposed sentence is not "something that a judge should encourage or permit if it is within his authority to prevent." Carr, 424 F.3d at 220 (quoting United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997)).

The Petitioner also argues that the jury charge was deficient because the trial court "gave a general charge that failed to inform the jury on the true nature of mitigation evidence." (Petitioner's Br., at 272.) Specifically, the Petitioner argues that "the jurors did not understand the meaning of the term `mitigating'" because the trial court refused to charge on "specific examples of applicable mitigating circumstances," and that "the court instructed the jury that in its consideration of mitigating evidence they were entitled to consider childhood, general upbringing, emotional disturbance, and youth," and by "listing. . .only a few potential areas of mitigation naturally limited the jury's consideration in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution." (Petitioner's Br., at 272-73.)

The trial court explained "mitigating" evidence to the jury to clear up confusion:

Mitigating or extenuating circumstances are those which you, the jury, find do not constitute a justification or excuse for the offense in question, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability or blame.

(Res. Ex. 38, at 2901.) This explanation was sufficient and did not have to be buttressed with specific examples of mitigating circumstances. In addition, the Petitioner argues that by giving only a few examples of mitigating circumstances, the court misled the jury into thinking these were the only possible mitigating circumstances. "[T]he Eighth and Fourteenth Amendments require that the sentence[r]. . .not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978). Other examples of mitigating circumstances exist besides those enumerated by the trial court.11 However, this Court cannot find that the Georgia Supreme Court's conclusion that the charge on mitigating circumstances was not misleading to the jury to be contrary to, or an unreasonable application of, Supreme Court precedent, or to be an unreasonable determination of fact. Gissendaner, 272 Ga. at 715.

Also, similar to the Petitioner's argument that the jurors should have been instructed that they were not required to reach a unanimous decision on sentencing, the Petitioner argues that the jurors should have been instructed to consider the mitigating circumstances individually. (Petitioner's Br., at 273.) The Petitioner cites Mills v. Maryland, 486 U.S. 367 (1988), which held that the trial court committed error when its instructions led the jurors to believe that they were required to agree unanimously on the existence of a particular mitigating factor before that mitigating factor could be considered in sentencing. Id. at 377-78. Mills does not hold that the trial court is required to instruct jurors to consider mitigating circumstances individually. Instructing jurors that they must agree on a particular mitigating factor and refraining from stating that each juror must consider mitigating factors individually is not synonymous; Mills is distinguishable from the present case. Also distinguishable is that the Maryland statute in Mills required the imposition of the death penalty if the jury agreed that there was a statutory aggravating factor and did not agree on a mitigating factor. Id. at 367. In the present case, the trial judge instructed, "you may set the penalty to be imposed at life imprisonment. It is not required and it is not necessary that you find any extenuating or mitigating fact or circumstance in order for you to direct a verdict setting the penalty to be imposed at life imprisonment." (Res. Ex. 38, at 2903-04.) Therefore, even if a juror erroneously believed that he could not establish a mitigating fact or circumstance if it was not agreed to by all other jurors, he was aware that he could recommend a sentence of life imprisonment regardless. On this issue the Georgia Supreme Court held: "It was not necessary for the trial court to charge the jury that findings regarding mitigating circumstances need not be unanimous or on how mitigating circumstances should be weighed, because the trial court properly charged the jury that it was not necessary to find any mitigating circumstances in order to return a sentence less than death." Gissendaner, 272 Ga. at 716. The Georgia Supreme Court did not rule contrary to, or unreasonably apply, United States Supreme Court precedent.

G. Georgia's Death Penalty Scheme

The Petitioner argues that Georgia's capital punishment regime is unconstitutional because it "provides no uniform sentencing standards for determining when such sentences are appropriate, and a scheme that affords district attorneys the plenary power to seek sentences of death based on whim alone." (Petitioner's Br., at 277.) Georgia's death penalty scheme was expressly upheld by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found that Georgia's capital punishment scheme12 controls the discretion exercised by the jury "by clear and objective standards so as to produce non-discriminatory application." Id. at 198; see also Crowe v. Terry, 426 F.Supp.2d 1310, 1355 (N.D. Ga. 2005) (holding that Gregg "expressly upheld Georgia's system of imposing the death penalty"). The Petitioner's argument that Bush v. Gore, 531 U.S. 98 (2000), renders Georgia's death penalty scheme unconstitutional is unpersuasive and has already been rejected by this Court. Crowe, 426 F. Supp. 2d at 1354-55.

The Petitioner also argues that district attorneys use an arbitrary process for deciding whether to seek the death penalty which violates the United States and Georgia Constitutions. This claim also fails. The Eleventh Circuit recently held that a petitioner cannot argue that the death penalty process violates the Equal Protection Clause of the Fourteenth Amendment unless she can establish a prima facie case of intentional discrimination against a protected class. Wellons v. Hall, 554 F.3d 923, 942 n.9 (11th Cir. 2009), vacated on other grounds, Wellons v. Hall, 130 S.Ct. 727 (2010). The Petitioner does not make a prima facie case of intentional discrimination although she makes some unsubstantiated claims that the defendant's low socio-economic status and the race of the victim can sometimes play a role.13 Furthermore, the United States Supreme Court has stated that "[i]mplementation of [criminal laws against murder] requires discretionary judgments," and that "[b]ecause discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused." McCleskey v. Kemp, 481 U.S. 279, 297 (1987). The Petitioner did not provide "exceptionally clear proof" that state prosecutors abused their discretion in seeking the death penalty against the Petitioner. Therefore, the Petitioner has failed to prove that the Georgia Supreme Court's decision was contrary to, or an unreasonable application of, Supreme Court precedent.

H. Victim Impact Evidence

The Petitioner argues that the trial court erred in admitting victim impact evidence. However, the Supreme Court has held that the Eighth Amendment does not create a per se bar to the admission of victim impact evidence and that there is no reason to treat this evidence differently than other relevant evidence. Payne v. Tennessee, 501 U.S. 808, 827 (1991). The victim impact evidence presented in this case described the loss felt by those close to the victim, particularly his three children. (Res. Ex. 37, at 2797-2806.) This evidence was not "so unduly prejudicial that it render[ed] the trial fundamentally unfair[.]" Payne, 501 U.S. at 825. The Georgia Supreme Court's decision denying this claim was not contrary to, or an unreasonable application of, Supreme Court precedent.

I. Photographic and Video Evidence

The Petitioner claims that the trial court erred in admitting photographs and a video of the crime scene and the victim. (Petitioner's Br., at 292.) The Petitioner argues that these photographs were prejudicial and irrelevant. "As a general rule, a federal court in a habeas corpus case will not review the trial court's actions in the admission of evidence." Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983) (citing Lisenba v. California, 314 U.S. 219, 228 (1941)). Yet, "the federal court [in a habeas corpus proceeding] will make inquiry only to determine whether the error was of such magnitude as to deny fundamental fairness to the criminal trial. . . .The admission of prejudicial evidence justifies habeas corpus relief only if the evidence is material in the sense of a crucial, critical, highly significant factor." Osborne, 720 F.2d at 1238 (internal citations and quotations omitted). The Respondent argues: "The photographs and the video were relevant and admissible to show the nature and location of the victim's wounds, the location and position of the body, the location of the body in relation to the crime scene, and the appearance of the body at the time of the autopsy. Furthermore, the autopsy photographs were properly admitted to assist the medical examiner in describing the cause and manner of death." (Respondent's Br., at 199.) The photographs also show that the Petitioner knowingly abandoned her husband's body in a wooded area where animals chewed off part of his face before the body was found. The Court does not believe that the introduction of the photographic and video evidence denied the Petitioner "a fundamentally fair trial" in violation of the Fourteenth Amendment's Due Process Clause. Osborne, 720 F.2d at 1238.

J. Lethal Injection

The Petitioner argues that Georgia's lethal injection procedure is cruel and unusual punishment in violation of the Eighth Amendment. As a threshold matter, the Respondent argues that this Court cannot review this claim on a habeas petition. The Court is unconvinced. The Respondent cites Tompkins v. Secretary, Dep't of Corr., 557 F.3d 1257 (11th Cir. 2009), for the proposition that "[a] § 1983 lawsuit, not a habeas proceeding, is the proper way to challenge lethal injection procedures." Id. at 1261. While this language appears to be dispositive of the issue on its face, after closer examination the Court believes that a petitioner's first habeas petition is an appropriate vehicle through which to bring a challenge to a lethal injection procedure. First, the facts of Tompkins are distinguishable from the case at bar. Tompkins did not raise the lethal injection claim in his first habeas petition, which was filed in 1989, because the state did not use that method of execution at that time. Id. However, the state adopted lethal injection as an execution method in 2000, and the court notes that "Tompkins could have filed a 42 U.S.C. § 1983 lawsuit challenging the method and procedures at any time during the eight years since then." Id. The Tompkins court was responding to a petitioner who had brought a second or successive habeas petition, and had delayed eight years since the change in the state's lethal injection procedures to do so.

On the other hand, Nelson v. Campbell, 541 U.S. 637 (2004), states that "method-of-execution challenges [ ] fall at the margins of habeas," which suggests that such claims can be brought in habeas. Id. at 646. Furthermore, in a habeas appeal decided by the Eleventh Circuit in the same year as Tompkins, the Eleventh Circuit reached the merits of a claim challenging lethal injection procedures, lending further credence to this Court's suspicion that the Tompkins language was inaccurately broad. See Wellons, 554 F.3d at 942. Additionally, from a policy perspective, the Court believes that judicial economy is best served by allowing a petitioner to bring a claim challenging lethal injection procedures in her habeas petition rather than requiring her to separately file a § 1983 action.

The Court considers the Petitioner's claim de novo, as it was raised before the state habeas court, which refused to decide it. Reaching the merits of the Petitioner's lethal injection claim, however, the Court is quickly struck by the weight of the case law against the Petitioner's argument. The Supreme Court found that a similar three-drug lethal injection protocol did not violate the Eighth Amendment. Wellons, 554 F.3d at 942 (citing Baze v. Rees, 553 U.S. 35 (2008)). Since Baze, Georgia has not significantly altered its method of execution. Georgia now uses pentobarbital instead of sodium penthotal as the first of its three drugs;14 the Eleventh Circuit has consistently found that this switch did not offend the Eighth Amendment. See Powell v. Thomas, 641 F.3d 1255 (11th Cir. 2011); DeYoung v. Owens, 2011 U.S. App. LEXIS 15794 (11th Cir. July 20, 2011). Georgia's lethal injection procedure does not violate the United States Constitution.

IV. Conclusion

For the reasons set forth above, the Court DENIES the Amended Petition for Writ of Habeas Corpus [Doc. 16].

SO ORDERED.

Footnotes

1. The state habeas court found that "Mr. [Steve] Reilly was responsible for interviewing mitigation witnesses." (Res. Ex. 123, at 40.) Edwin Wilson was lead counsel, and "[p]rior to Petitioner's case, [he] had prosecuted and defended numerous murder cases." (Res. Ex. 123, at 32-33.) The state habeas court determined the following regarding Mr. Reilly:
Mr. Wilson's co-counsel, Steve Reilly was appointed on June 26, 1997.

Reilly graduated from the University of Georgia Law School in 1986. Following law school, he served four years of active duty in the U.S. Army Judge Advocate General's Corps. In 1990, Mr. Reilly entered private practice in Gwinnett County. At the time of his representation of Petitioner, his practice was about 70-75 percent criminal defense. Despite the fact that this was Mr. Reilly's first murder case, he had experience in felony cases such as armed robbery, aggravated assault, theft and drug cases.

Prior to Petitioner's case, Mr. Reilly had not attended any death penalty seminars. However, Wilson provided Mr. Reilly with all the materials he had obtained from the death penalty seminars. Mr. Reilly reviewed all the materials that were provided to him. In fact, Mr. Wilson required Mr. Reilly to review all the death penalty seminar materials prior to beginning the substantive work in Petitioner's case. Mr. Reilly received guidance from Wilson and consulted with more experienced local attorneys.

(Res. Ex. 123, at 34) (internal citations omitted).

2. Porter v. McCollum was decided after the state habeas court issued its order.

3. The Petitioner argues that the state habeas court "credited the conclusions of Doctors Bernet, Young, and Rosenberg." (Petitioner's Br. at 75, n.23.) The Court does not agree with this conclusion; the state habeas court simply reported their conclusions.

4. The state habeas court reasoned:

Owen changed his story to put the Petitioner at the scene of the actual murder viewing the body. Petitioner has been unable to establish who, if anyone, actually said this phrase in the interview of Owen. Petitioner has failed to show a context in which the phrase would influence Owen to change his testimony. Petitioner's interpretation of the summary and the prosecutor's note is not reasonable. In fact, although Owen seeks to recant some of his trial testimony in this proceeding, even he still maintains that no one told him to change his story, but that he did it based on what he believed "they wanted to hear.". (sic) Accordingly, the Court finds no Brady violation with respect to the alleged "prompting."

(Res. Ex. 123, at 24-25.)

5. While this statement could have been used against Owen for impeachment purposes, it was also inculpatory for the Petitioner.

6. The state habeas court found the other withheld evidence from the notes listed above to be neither impeaching nor exculpatory.

7. The materiality standard of a Giglio claim is more easily satisfied than for other Brady claims. For a Giglio violation, a petitioner need only show that if not for the error there was "any reasonable likelihood" that the result of the guilt phase or sentencing phase would have been different. Ventura v. Attorney General, Fla., 419 F.3d 1269, 1278 (11th Cir. 2005).

8. This Court disagrees with the Petitioner's assessment that the Georgia Supreme Court did not rule on whether the Petitioner was guilty, and agrees with the state habeas court that "[the] claim was raised and decided adversely to Petitioner on direct appeal in [the Georgia Supreme Court]." (Res. Ex. 123, at 8.) The Georgia Supreme Court held: "Viewed in the light most favorable to the verdict, we find that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Gissendaner was guilty of the crimes of which she was convicted and that statutory aggravating circumstances existed." Gissendaner, 272 Ga. at 705.

9. The Georgia Supreme Court recently rejected the claim that a five-member jury commission violates the United States Constitution. Foster v. State, 288 Ga. 98, 101 (2010).

10. Because this claim was not considered by the Georgia Supreme Court on direct appeal or by the state habeas court, this Court reviews this claim de novo. Cone v. Bell, 556 U.S. 449 (2009).

11. For example, the defendant's adjustment to prison life may be properly considered by the jury as mitigating evidence. Skipper v. South Carolina, 476 U.S. 1, 7 (1986).

12. The Gregg Court highlights that the jury must find one of the statutory aggravating circumstances to exist beyond a reasonable doubt, that the jury is authorized to consider mitigating circumstances, and that the jury is not required to find any mitigating circumstance before recommending a sentence other than death. Gregg, 428 U.S. at 196-97. The Court also highlights that Georgia now bifurcates the guilt and sentencing phase, and that there is an automatic appeal of all death sentences to the Georgia Supreme Court, which is "an important additional safeguard against arbitrariness and caprice." Id. at 198.

13. The Petitioner states that "those convicted of killing white persons are far more likely to receive the death penalty than those who kill non-white persons." (Petitioner's Br., at 282-83.) However, she admits that the Court ruled adversely in McCleskey v. Kemp, 481 U.S. 279 (1987), when it allowed Georgia to continue executions even though a person was four times more likely to be sentenced to death if the victim was white than if the victim was African-American. Moreover, persons who murder white persons are of course not a protected class under the Equal Protection Clause.

14. The purpose of the first of the three drugs is to render the individual unconscious. See Baze, 553 U.S. at 49.

Kelly Gissendaner

Kelly Gissendaner

Kelly Gissendaner