HAMMOND v. THE STATE.
S90P1043.
(260 Ga. 591)
(398 SE2d 168)
(1990)
FLETCHER, Justice.
Murder. Fulton Superior Court. Before Judge Hicks.
Emmanuel Hammond was convicted by a jury in Fulton County of murder,
kidnapping and armed robbery. He was sentenced to death for the
offense of malice murder. He now appeals his conviction and death
sentence. 1
The evidence presented at the guilt phase of this trial may be
summarized as follows:
Julie Love was last seen by her fiance the morning of July 11, 1988.
He called her that evening and she was not in. He left a message on her
answering machine. He left another message the next day. When she did
not return his calls, he thought at first that she was "sort of having
her way" and "getting back at me a little bit." However, when she failed
to return his call the next day he became concerned. He began calling
her friends and family and discovered she had not been in touch with any
of them either. He went to her apartment that evening with a policeman.
She was not home, and they did not feel they had a right to enter her
apartment at that time. However, after her car was discovered abandoned
and out of gas half a mile from her fiance's house, a formal
investigation was begun by the police. The investigation proved
fruitless for over a year.
In August of 1989, Janice Weldon, a 34-year-old stripper at an
Atlanta lounge and intimate companion of 26-year-old Emmanuel Hammond,
had him arrested on charges of aggravated assault after he tried to
strangle her. While he was in jail on these charges, Weldon reported to
police that Hammond and his cousin Maurice Porter were responsible for
the disappearance of Julie Love. Police followed up her report by
placing a "body bug" on her and monitoring conversations between her and
Maurice Porter. Porter made several incriminating statements, and he and
Hammond were arrested. Porter confessed and led police to skeletal
remains which were identified by her childhood dentist and next-door
neighbor as the mortal remains of Julie Love. Porter and Weldon
testified at Hammond's trial.
According to them, Porter, Weldon and Hammond were driving around
the evening of July 11, 1988 in Hammond's maroon Oldsmobile Cutlass
sedan. They spotted Julie Love walking by the side of Howell Mill Road.
At Hammond's command, Porter, the driver, stopped so Hammond could ask
her if she wanted a ride. Love answered in the negative, and pointed to
a nearby house, claiming she lived there. She walked up the driveway and
they drove off. Before they got out of sight, however, Hammond saw her
returning to the road. Porter was told to turn around and drive by in
the opposite direction, this time with his lights on bright. They drove
past Julie Love again and saw farther up the road a car which they
correctly deduced was hers. Hammond told Weldon to drive, and they
returned to Julie Love. Weldon stopped the car, and Hammond, armed with
a sawed-off shotgun, jumped out, grabbed the victim and threw her into
the back of the car.
They drove to Grove Park Elementary School (which Hammond had
attended). Love's purse was searched and Hammond instructed Weldon and
Porter to take her bank cards to an automated bank teller machine and
get money, using an access number given them by Love. Hammond remained
at the school with his sawed-off shotgun and Julie Love. The other two
returned later without money or the bank cards. The access number they
had tried to use was incorrect and the machines had kept the cards.
Hammond, angry at this result, struck Love repeatedly with the shotgun.
Porter then raped Julie Love.
Love, pleading not to be hurt, told Hammond she had more cards at
home. They drove to Love's apartment complex but were deterred from
entering by the presence of a security guard at the entrance to the
complex.
At this point, Weldon demanded she be allowed
to go home. She was dropped off at her apartment and the
remaining three returned to the Grove Park school. Hammond got
clothes hangers and a sheet from the trunk of the car. He tied
Love's feet together, tied her hands behind her back and wrapped
a sheet around her body. He then wrapped a coat hanger around
her neck, and, telling Porter to pull one end while he pulled
the other, tried to strangle Love. She struggled and broke free.
Hammond got her under control and retied her hands. He told
Porter to drive to Grove Park, where they stopped by the side of
the road. Leaving Porter with the car, Hammond took Julie Love
into the woods. Porter heard a gunshot. A few minutes later
Hammond returned alone, his face flecked with blood.
Hammond returned home at 7:00 a.m. that morning.
Weldon asked him what had happened to Julie Love.
He did not want to talk about it then, but later told her that after
Love "put her hands in front of her face," he "blew the side of her
face off." He dumped her body in a trash pile and covered her up
with a board.
The sawed-off shotgun was recovered from Michael
Dominick, to whom Hammond had sold the gun not long after killing
Julie Love with it. The victim's earrings were also recovered, after
having been pawned for $140 by Janice Weldon.
After his arrest, Hammond gave Weldon's
photograph and address to an inmate due to be released soon, and
offered him $20,000 to kill her.
In addition to the foregoing, the state offered
evidence establishing that on three previous occasions Emmanuel
Hammond had kidnapped young women and robbed or attempted to rob
them by obtaining their bank cards to use in automated teller
machines. Moreover, he stabbed the third of these women numerous
times and left her for dead on a trash pile in a wooded area.
The evidence, viewed in the light most favorable to the state,
supports the jury's verdict at the guilt phase of the trial. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
1. After being questioned on voir dire, qualified prospective jurors
were excused with instructions to return to court at 1:30 p.m. Friday.
Fifty-six qualified prospective jurors were present in court at the
appropriate time. Three were absent. One had called in to report that
his father had suffered a stroke. This prospective juror was excused for
medical reasons. (The defendant's attorney conceded at trial that he
would have peremptorily struck this prospective juror if he had been
present.) The court waited for over an hour for the other two. When they
failed to show and could not be located, the court ruled that jury
selection would proceed without them.
The defendant contends the venire was incomplete and the court erred
by proceeding with the jury selection in these circumstances. However,
there were more than enough qualified prospective jurors to allow the
selection of a jury and three alternates. See cf. Hall v. State,
254 Ga. 272 (3) (328 SE2d 719) (1985).
Moreover, the record shows the two absent jurors were located late
Friday afternoon after the jury had been selected and were questioned by
the court and the parties. 2
One had tried to call Thursday evening to leave a message; however,
the county had turned off the court's answering machine and the juror
could not leave a message. Questioning revealed that she had moved to
Fayette County and therefore was not qualified to be a Fulton County
juror. OCGA 15-12-40 and 42. The other
prospective juror had called the court at 12:30 that afternoon and left
a message on the court's "voice message mailbox." She was having
complications following foot surgery the previous Monday, was taking
strong pain-killing medicine (Percocet), and was going to require follow-up
medical treatment in the days and weeks ahead. The court ruled that
because of her medical condition, this juror would have been excused for
cause if the circumstances had been brought to the court's attention
prior to jury selection.
While we do not find that the court erred by proceeding with the
selection of the jury when it did, it is clear that if the court had
delayed the process until the absent prospective jurors were located and
questioned about their absence, they would have been excused for cause
and the qualified jury venire would have been the same as the one the
defendant complains about.
No error has been shown.
2. Janice Weldon telephoned Love's home before they went to Love's
apartment complex, and listened to a recorded message saying, "Hi, this
is Julie, and I can't come to the phone right now. . . ." The defendant
did not object on hearsay grounds to the admission of the audiotape
containing this message. 3 His hearsay
objection to another tape containing incoming messages from friends and
relatives was sustained, and, contrary to his assertion in his brief,
this tape was not played to the jury. No inadmissible hearsay was
admitted over the defendant's objection, and this enumeration of error
is without merit.
3. Janice Weldon testified the defendant had given her some earrings
to pawn. These earrings had belonged to Julie Love. The state asked
Weldon if the defendant had told her where the earrings had come from.
Weldon answered, "I don't know if it's appropriate or not, but they used
to go steal cars a lot, him and his cousin." The defendant moved for a
mistrial on the ground that impermissible character evidence had been
elicited. The court denied the motion for mistrial and gave curative
instructions. There was no abuse of discretion. Sabel v. State,
250 Ga. 640 (5) (300 SE2d 663) (1983).
4. Weldon and Porter both testified that Hammond was armed with a
12-gauge shotgun at the time of the crime. Police were unable to locate
the gun. However, during the trial, one Michael Dominick informed the
prosecution that Hammond had sold him a sawed-off 12-gauge shotgun not
long after Julie Love had disappeared. At the time he purchased the gun,
Dominick did not know Hammond had anything to do with Julie Love's
disappearance. The gun was seized by the police during a search of
Dominick's residence in connection with criminal drug charges unrelated
to this case. At the time of this trial, the gun had been in the police
evidence room for many months. Neither the police nor the prosecution
were aware that the gun had any connection to this case until Dominick,
who was in jail, volunteered the information after the trial had begun.
The state offered the gun and the testimony of Dominick as newly
discovered evidence. The defendant objected and moved to exclude the
testimony and the gun because Dominick's name was not on the list of
witnesses furnished to him before trial, see OCGA
17-7-110, and because, except for his testimony, there was
nothing to tie the gun to the crime on trial. The court ruled: "[A]s the
record now stands the Court grants the defense motion. . . ."
Later the defendant testified. On cross-examination, the state
displayed the gun to the defendant and asked him if he had ever seen it.
He admitted he had. He denied selling it to Dominick but admitted being
present when, as he claimed, Janice Weld on sold the gun to Dominick.
The state re-offered the gun in evidence. This time, the court admitted
it. In addition, Dominick testified in rebuttal that Hammond had sold
the gun to him.
The court initially granted the defendant's motion as the record
stood at that time. The court did not preclude an attempt by the state
to expand that record with subsequent testimony by the defendant. The
trial court did not err by admitting the gun and testimony about its
sale after the defendant identified it.
5. The defendant contends he was "denied a fair trial due to
prosecutorial misconduct," claiming that, throughout the trial, the
prosecutor "expressed opinions, asked improper questions and introduced
improper evidence."
The first instance of alleged misconduct concerns the testimony of
Janice Weldon. Before she testified, the defendant moved to exclude her
testimony because she had declined to speak to defense counsel before
trial. Weldon, however, had the right to refuse to talk to the
defendant's attorney. Baxter v. State, 254 Ga.
538, 541 (4) (331 SE2d 561) (1985).
Absent evidence that the prosecutor did more than inform the witness of
her right not to speak, there was no prosecutorial misconduct. Id. at
542.
The next two instances of alleged prosecutorial misconduct concern
the testimony of the cellmate who testified the defendant tried to hire
him to kill Janice Weldon. The prosecutor asked if the witness thought
the defendant "would carry out his threats" against Weldon. The witness
answered in the affirmative. The defendant objected on the ground the
question "calls for a conclusion." The court sustained the objection and
told the jury to disregard the answer. Later, the state asked the
witness about a beating he had received after he had reported the
defendant's attempt to kill Weldon. The defendant objected because the
state failed to establish that the defendant was in any way responsible
for the beating. The court sustained this objection also, and instructed
the jury to disregard the testimony and not to draw any inference
adverse to the accused from any testimony about an altercation the
witness might have had with persons other than the defendant.
Assuming that an attempt to elicit arguably relevant testimony could
in some instances amount to prosecutorial misconduct, we find that,
especially in light of the court's curative instructions, there was no
misconduct here that might have prejudiced the substantial rights of the
defendant. United States v. Odom, 858 F2d 664 (11th Cir. 1988).
Any comments made by the prosecution during colloquy outside the
presence of the jury could have had no effect on the jury. Hence, the
defendant's fourth and fifth instances of alleged prosecutorial
misconduct are immaterial. Willis v. Kemp, 838 F2d 1510 (III) (11th Cir.
1988).
The defendant's sixth instance of alleged prosecutorial misconduct
occurred during the state's examination of Janice Weldon. She compared a
shirt belonging to the defendant with one in a photograph not then
admitted into evidence. The defendant objected because the photograph
was not in evidence. This objection was sustained. Later, the photograph
was admitted in evidence. We are unable to discern any prosecutorial
misconduct here.
The final instance of alleged prosecutorial misconduct occurred when
the prosecutor told the jury during its guilt-phase closing argument
that the jury knew the defendant was guilty, and the reason the jury
would know it "is to think how you would feel if you saw him on the
streets knowing what you know about the defendant."
The defendant objected to this argument, and the parties discussed
the objection at a bench conference outside the hearing of the jury. The
defendant contended it was not proper for the prosecutor to ask the
jurors to assume the position of the victim. The prosecutor responded
that he was merely asking the jury to make a common-sense decision based
on the evidence. The court, without expressly sustaining the defendant's
objections, directed the prosecutor "go forward" with his argument
without stating "directly or indirectly" that the jurors "should place
themselves in the shoes of the victim."
The trial court did not commit reversible error by refusing to grant
the defendant's motion for mistrial.
[A] court should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning or that a jury,
Sitting for lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.
Donnelly v. DeChristoforo, 416 U. S. 637, 647 (94 SC 1868, 40 LE2d
431) (1974). The prosecutor's argument was not an example of prejudicial
misconduct that would entitle the defendant to a new trial. Willis v.
Kemp, supra.
7. The defendant contends a juvenile adjudication for armed robbery
should have been excluded from evidence at the sentencing phase because
he was unrepresented by an attorney. The record, however, shows on its
face that he was represented by an attorney. (We note that the
commission of the crime was also established by the testimony of two
witnesses. See Potts v. State, supra.) The trial court did not err by
allowing the juvenile adjudication to be admitted in evidence during the
sentencing phase of this trial. Burrell v. State,
258 Ga. 841 (7) (376 SE2d 184) (1989).
8. Our Code provides:
(a) No attorney at law in a criminal case shall
argue to or in the presence of the jury that a defendant, if
convicted, may not be required to suffer the full penalty imposed by
the court or jury because pardon, parole, or clemency of any nature
may be granted by the Governor, the State Board of Pardons and
Paroles, or other proper authority vested with the right to grant
clemency.
(b) If counsel for either side in a criminal case
argues to or in the presence of the jury as provided in subsection
(a) of this Code section, opposing counsel shall have the right
immediately to request the court to declare a mistrial, in which
case it shall be mandatory upon the court to declare a mistrial.
Failure to declare a mistrial shall constitute reversible error.
(Emphasis supplied.) OCGA
17-8-76.
During his closing argument to the jury at the
sentencing phase of the trial, the prosecutor argued that Hammond
should not be given a life sentence because:
There is no life without parole in Georgia. So
one day he will be a free man.
We agree with the defendant that this argument is
one prohibited by OCGA 17-8-76 (a) and
is improper. However, the defendant
did not -- as he could have under the terms of
subsection (b) of the Code -- move for a mistrial. Instead, he
objected and asked the court to instruct the jury to disregard the
argument. The court sustained the objection and gave curative
instructions.
Our Code does not require that a mistrial be
declared even without a request, and the trial court did not err by
granting only the relief sought by the defendant at trial.
9. Finally, the defendant contends the court
erred by failing to give the defendant's written requests to charge
numbers 2 through 10. In request number 10, the defendant sought to
advise the jury when he would be eligible for parole if given
consecutive life sentences rather than a death penalty. It was not
error to refuse to give this request to charge. Quick v. State,
256 Ga. 780 (9) (353 SE2d 497) (1987).
The remaining requests to charge were either given verbatim or in
substance. There was no error. Pruitt v. State,
258 Ga. 583 (13) (373 SE2d 192) (1988).
10. Our review in death penalty cases is guided
by the Unified Appeal Procedure. See Ga. Court and Bar Rules, p. 9-1
et seq. The purposes of the UAP include "insuring that all legal
issues which ought to be raised on behalf of the defendant . . .
[are] asserted in a timely . . . manner" and that any error is
corrected "as promptly as possible." UAP 1(A) (1) and (2), Ga. Court
and Bar Rules at 9-3. In IV (B) (1), the UAP provides:
At any time after the case is docketed in the
Supreme Court, the Superior Court may be directed by the Supreme
Court to conduct further hearings, or to hold additional conferences
for specified purposes, or to make additional findings of facts or
conclusions of law in respect to issues raised by the parties on
appeal or perceived by the Supreme Court although not asserted by
the defendant or the state.
(Emphasis supplied.) Id. at 9-15.
We perceive a possible issue as to effectiveness
of counsel in this case, and we therefore remand the case to the
trial court to give the defendant an opportunity to litigate the
issue of trial counsel's effectiveness. 5
The question of effectiveness involves an
examination of not only trial counsel's performance but also
prejudice. We agree with the dissent that if any deficiency in the
representation by trial counsel did not materially affect the
outcome of the proceeding, constitutional ineffectiveness would not
exist. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC
2052, 80 LE2d 674) (1984). However, we cannot agree that we can
decide the question of effectiveness on the record before us. If it
is necessary to appoint counsel to represent the defendant on remand,
the court shall do so. After the conclusion of the proceedings on
remand, the case shall be returned to this court for review of the
proceedings on remand and for the statutory sentence review, unless
the proceedings on remand obviate the need for further appellate
review. See Meders v. State, 260 Ga. 49 (389
SE2d 320) (1990); Gary v. State, 260
Ga. 38 (2) (389 SE2d 218) (1990).
SMITH, Presiding Justice, dissenting.
A remand in this case is a waste of time and
judicial resources and is not warranted for the following reasons.
First, there has been no enumeration of error
alleging ineffective assistance of counsel. While the Unified Appeal
Procedure empowers this Court to review the possibility of error on
its own initiative, we are constrained to the record developed at
trial. That record either reflects ineffective assistance of counsel
or it does not. If the record shows such an error, we should reverse
the judgment and return it to the trial court for a new trial.
Obviously, it does not. Since it does not, we should affirm the
verdict. This Court is setting a terrible precedent by remanding
this case. We are inventing a ground of appeal and creating delay by
directing the trial judge to go on a witch hunt.
Counsel in this case was retained by appellant.
He filed numerous and timely motions and interposed objections
throughout the trial. Just because he did not handle the case the
way we as individuals might have, does not establish that his
actions were ineffective. He was on the scene and trying the case
and was in a better position to understand the flow of the trial as
it progressed. Circumstances dictate trial strategy and I do 'not
believe that the record shows that the appellant's trial strategy
constituted error.
Additionally, even if counsel was deficient, it
is not established that his deficiency rose to the level of
justifying a remand. To establish a valid claim of ineffective
assistance of counsel, a party must show that counsel was deficient,
and, "but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v. Washington, 466
U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). For the following
reasons, I believe that even if any deficiency of counsel was
brought to light, the result would have been the same.
First, let us look at appellant Hammond's resume
of criminal acts and violent behavior.
1. While still a juvenile, Hammond and another
robbed a woman at gunpoint. She was kidnapped, driven in her car to
an automated bank teller machine and raped twice.
2. On another occasion, while still a juvenile,
Hammond and another robbed a man at gunpoint, kidnapped him and
drove the victim around in his own car.
3. Later, Hammond robbed another woman at
knifepoint, kidnapped her, raped and sodomized her, slit her throat,
stabbed her five times in the chest and left her for dead in a pile
of trash.
4. He accosted still another woman at knifepoint,
took her car and drove her around, threatening to rape and kill her.
She managed to escape before he could carry out his threats.
5. He broke into another woman's home while she
was in bed, asleep, woke her up and sexually fondled her. Before he
left, he stole cash and a tape recorder.
6. In the present case, he was arrested after he
tried to kill his girl friend, Janice Weldon, and while in jail he
offered to pay another inmate $20,000 to kill her.
In light of all this, was Hammond's attorney
supposed to present voluminous good character evidence in a case
where Hammond murdered his sixth woman victim in cold blood?
Second, there is the grisly story of the night of
the murder of Julie Love. This story is one of a strong, able-bodied
man, armed with a sawed-off shotgun, riding the streets looking for
his sixth woman victim. The evidence presents a brutal picture in
live action as follows:
1. Hammond, Porter and Weldon (Hammond's girl
friend, whom he later tried to hire someone to kill) were driving
around in Hammond's car.
2. Hammond spotted Julie Love walking by the side
of the road.
3. Hammond ordered Porter to stop the car.
4. Hammond asked Ms. Love if she wanted a ride.
She declined and they drove on.
5. Hammond watched and saw Ms. Love returning to
the road from the driveway of the house she had claimed was her
home.
6. Hammond ordered Porter to turn around and
drive past Ms. Love again, with the car lights on bright.
7. Hammond exclaimed as they drove past Ms. Love
and saw a car stopped by the side of the road: "I knew it! I knew
it!"
8. Hammond told Porter he drove too slowly and
ordered Weldon to drive. They returned to where Julie Love was
walking.
9. Hammond jumped out of the car, armed with a
sawed-off shotgun, grabbed Ms. Love, and threw her into the back of
the car.
10. Hammond ordered Weldon to drive to Grove Park
Elementary School which he had attended.
11. Hammond ordered Weldon to search Julie Love's
purse. He then ordered Weldon and Porter to take Ms. Love's bank
cards to an automated bank teller and get money using an access
number provided by her.
12. Hammond remained at the school with Julie
Love. Neither Porter nor Weldon could testify what happened at the
school while they were gone. But while awaiting trial, Hammond
bragged about raping Ms. Love. According to the testimony of a
jailer, Hammond pulled his pants down to his knees and, holding his
sex organ in his hands, told the jailer "that's what [he] had gave
[sic] to Julie Love."
13. Hammond beat Ms. Love with his shotgun when
Porter and Weldon returned without money.
14. Hammond stood by while Porter raped Julie
Love.
15. Hammond, after Ms. Love pleaded with him not
to hurt her anymore, directed the driver to proceed to her apartment
complex to get more credit cards, but they did not enter because of
the presence of a security guard.
16. Hammond and Porter, at Weldon's request,
dropped Weldon at her apartment, then took Julie Love back to the
school.
17. Hammond got clothes hangers and a sheet from
the trunk of the car.
18. Hammond bound Julie Love's feet together,
bound her hands behind her back, and wrapped a sheet around her body.
19. Hammond wound a coat hanger around Julie
Love's neck.
20. Hammond, telling Porter to hold one end,
tried to strangle Julie Love with a coat hanger.
21. Hammond, after Ms. Love struggled free, got
her under control and retied her hands.
22. Hammond ordered Porter to drive to nearby
Grove Park.
23. Hammond told Porter to stay in the car and
took Julie Love into the woods.
24. Hammond shot Julie Love in the head with his
sawed-off shotgun, blowing "the side of her face off."
25. Hammond hid her body in a trash pile by
placing a board over it. This was the second woman he had left in a
trash pile.
26. Hammond returned to the car, his face flecked
with blood.
27. Hammond sold the shotgun after he killed
Julie Love.
28. Hammond gave Ms. Love's earrings to Weldon
and told her to pawn them.
Consider this synopsis of Hammond's life.
a. Hammond orchestrated, directed, or committed
27 of these 28 acts and stood by with his sawed-off shotgun, while
Porter raped Julie Love in the 28th one.
b. Hammond, since a juvenile, has led a life of
crime and violence.
d. Hammond has failed to exhibit one iota of
simple human decency.
e. Hammond has committed one or more of the
following crimes to six different women.
A. Terrorized -- six women, including Julie Love.
B. Kidnapped -- four, including Julie Love.
C. Raped -- three, including Julie Love.
D. Threatened to rape -- one.
F. Assaulted either physically or by using knife
or gun -- five, including Julie Love.
I. Slit the throat -- one.
J. Robbed -- four, including Julie Love.
K. Threatened or tried to kill -- three.
L. Attempted automatic bank teller and credit
card theft -- two, including Julie Love.
M. Falsely imprisoned in an automobile -- four,
including Julie Love.
N. Left in trash pile, either dead or thought to
be dead -- two, including Julie Love.
O. Sexually assaulted (fondled a woman after
breaking into her house) -- one.
P. Solicited murder -- one.
Q. Murdered -- one, Julie Love.
Out of the above 17 criminal acts, Julie Love was
forced to suffer through nine.
Hammond's criminal record includes an attack on
one man, but his modus operandi was the same. He and another felon
kidnapped and drove the victim around in the victim's car and robbed
him at gunpoint.
In light of the above, it is clear that a remand
of this case to the trial court to look into possible ineffective
assistance of counsel is a travesty of justice, a waste of judicial
resources, and an insult to the victims that he has raped, robbed,
assaulted, terrorized, and murdered, as well as to their families.
In Ford v. State, 257 Ga.
461, 463 (360 SE2d 258) (1987),
this Court held, "[t]he factors normally considered in sentencing
are (1) the character of the defendant, including his previous
criminal activity, if any, and (2) the circumstances of the crime on
trial." See also Clemons v. Mississippi, ____ U. S. ____ (110 SC
1441, ____ LE2d ____) (1990).
As to character, the record shows Hammond to be
without a shred of human decency, and totally lacking a single,
socially redeeming trait of character. This has been true since he
was a juvenile.
His criminal activity has been limitless and
legion as may be seen elsewhere in this dissent.
As to the circumstances of this crime, there are
no words that can fully describe the 28 acts or actions the
appellant was involved in up to and including blowing "the side of
her [Julie Love's] face off."
The two acts that appellant pulled off in jail
awaiting trial speak eloquently about his character and how he feels
about the murder of Julie Love. Those acts demonstrated a complete
absence of any remorse and an utter disdain for the victim, society
and the law.
They were: 1) his attempt to hire an inmate to
kill his girl friend, Janice Weldon, to prevent her from testifying
against him, and 2) the act of showing his private parts to an
officer and stating what he did to Julie Love.
All of these crimes follow a pattern which shows
that they were premeditated planned with a purpose, and evidence of
a callous and indifferent view toward the life, rights and well
being of his fellow-man.
I do not think the appellant's attorney was
ineffective at either the guilt-innocence phase or the sentencing
phase of the trial. Ineffective assistance of counsel can only be
established by showing deficient attorney performance and actual
prejudice. Strickland v. Washington, 466 U. S., supra at 687. It was
Hammond's burden to show that mitigating evidence existed which
reasonably could have led the jury to spare his life.
The appellant's attorney attempted in good faith
to do so. He cannot be faulted for failing to present that which did
not exist. I think one example is enough to show this. The
appellant's grandfather testified for him. His testimony in
mitigation covered approximately one page. If his grandfather could
tell all the good he knew about him in one page, it is clear that
the appellant could not find anyone else that could supply greater
mitigating evidence.
Appellant could not even help himself by going on
the stand. What explanation could he give for his criminal behavior?
The appellant's counsel knew this. He was in a catch 22. He was
damned if he did and damned if he didn't.
Harm as well as error must be shown to warrant a
retrial, even in a death penalty case. Clemons, supra at 1450-52.
Furthermore, as the United States Supreme Court
stated in Boyde v. California, ____ U. S. ____ (____ SC ____, _____
LE2d ____) (1990):
There is, of course, a strong policy in favor of
accurate determination of the appropriate sentence in a capital
case, but there is an equally strong policy against retrials . . .
where the claimed error amounts to no more than speculation.
I stress again, there is no claimed error in this
case, and the remand is based on mere speculation.
Assuming, for the sake of argument, that counsel
was deficient the deficiency was harmless. If there is enough
evidence to envision a possible issue of ineffectiveness, there is
enough evidence for this Court to determine if it was harmless. The
holding in Clemons, supra, supports the proposition that a State
Supreme Court can make a determination that the deficiency of
counsel does not rise to the level of constitutionally harmful
error. We should do likewise, and not set a new precedent of
remanding to the trial court because we perceive the mere remote
possibility of a trial court finding ineffective assistance of
counsel.
It is difficult to understand how any defect in
representation could have deprived this appellant of mitigating
circumstances. The evidence of aggravation in this case is so
strong, this appellant is so dangerous, his criminal history is so
lengthy, his crime is so monstrous, and his own grandfather's
testimony only covered one page.
Those responsible for rendering an opinion as to
the legality of the trial in February 1586 of Mary Queen of Scots
made the following statement:
"For this trial, let this proposition be
delivered in known terms. and say thus, every man that breaks any
law is to be punished because he was willing to bear the penalty of
his offense."
I would affirm the conviction and the death
sentence of Emmanuel Fitzgerald Hammond.
Lewis R. Slaton, District Attorney, Richard E.
Hicks, Assistant District Attorney, Michael J. Bowers, Attorney
General, Susan V. Boleyn, Senior Assistant Attorney General, for
appellee.
Notes
1 The crimes occurred in the
evening of July 11, 1988 and the early morning hours of July 12, 1988.
The defendant was not arrested until August of 1989, and was indicted on
September 12, 1989. The case was tried between February 19 and March 8,
1990. The defendant did not file a motion for new trial; he appealed
directly to this court. The case was docketed in this court on May 4,
1990. Oral arguments were heard on June 17, 1990.
2 See transcript volume styled "Volume
V (continued)," sealed by order of the trial court.
3 He objected that the state had
not laid a proper foundation for the admission of this tape. His
objection initially was sustained, but the tape was admitted after the
state laid further foundation for its admission.
4 Our cases hold that prior crimes
may be proven in aggravation even if the defendant
5 The proceedings on remand will
be Hammond's opportunity to raise whatever he may wish on the issue of
effectiveness of counsel. Of course, as we pointed out in Gary v. State,
infra, a defendant cannot be forced to litigate an issue and may waive
in whole or in part his right to challenge trial counsel's effectiveness.
Ibid.
William A. Wehunt, for appellant.
DECIDED NOVEMBER 8, 1990 -- RECONSIDERATION DENIED DECEMBER 4, 1990.
Hammond v. Hall, 586 F.3d 1289 (11th Cir.
2009). (Habeas)
Background: Defendant was convicted in the Georgia
Superior Court, Fulton County, Ralph H. Hicks, J., of malice murder,
kidnapping and armed robbery, and was sentenced to death. The Supreme
Court, 260 Ga. 591, 398 S.E.2d 168, remanded for proceedings on issue of
ineffective assistance of counsel. The Superior Court, Frank Hull, J.,
found that counsel was not ineffective. On return of case, the Supreme
Court, Fletcher, J., 452 S.E.2d 745, affirmed, and defendant petitioned
for federal habeas relief on Brady and “ineffective assistance” grounds.
The United States District Court for the Northern District of Georgia,
No. 03-01646-CV-CAP, Charles A. Pannell, Jr., J., denied petition, and
defendant appealed.
Holdings: The Court of Appeals, Carnes, Circuit Judge,
held that: (1) testimony which prosecutor elicited from state witness
who, to prosecutor's knowledge, was implicated in several violent crimes,
that she had never been arrested or spent single day in jail, was not
literally false and would not support Giglio claim; (2) state's failure
to disclose to defendant its suspicions that former girlfriend who chose
to testify against him at trial had herself been involved in his
abduction, robbery, rape, and repeated stabbing of another woman did not
rise to level of suppression of evidence in violation of Brady rights;
(3) district court did not clearly err in rejecting, as after-the-fact
fabrication, affidavit which habeas petitioner obtained from jailhouse
informant; (4) mere fact that no test results were ever introduced for
sawed-off shotgun which state had argued was murder weapon, and which
had previously been delivered to forensics lab for testing, was
insufficient to show that shotgun had been tested, that test results had
excluded shotgun as murder weapon, and that state had violated Brady by
suppressing these test results; (5) such evidence as was suppressed was
not, either in isolation or cumulatively, “material”; (6) due process
claims arising out of remarks by prosecutor that allegedly rendered
petitioner's capital murder trial in state court unfair were
procedurally barred; and (7) Georgia state courts did not apply
Strickland in objectively unreasonable manner in rejecting “ineffective
assistance” claims. Affirmed.
CARNES, Circuit Judge:
Julie Love was driving a red Mustang convertible
through the upscale Buckhead section of Atlanta around 10:00 p.m. on
July 11, 1988, one of those typically hot summer nights in Georgia. The
petite 27-year-old preschool fitness teacher had been to her regular
Monday night “career chat” meeting. She had also gotten engaged the week
before and may have been thinking about that. Whatever was on her mind,
her thoughts were interrupted by the reality of her car slowing to a
stop, as cars do when they run out of gas. She steered it over to the
side of the road.
This was back before everyone had a cell phone, so
Love got out of her stranded car and started walking to get help. After
she had gone only a short distance down Howell Mill Road, a maroon
Cutlass sedan pulled up beside her. There were two men and a woman
inside. They offered Love a ride, but she declined the offer, waving the
group on and telling them that she lived in a house just up a nearby
driveway. Love didn't live in the house she pointed out or even on that
road, but she started walking up the driveway of that house anyway. The
Cutlass drove off.
Before the Cutlass had driven completely out of sight
of Julie Love, someone in it looked around in time to see her coming
back down the driveway to the street. Realizing that she had tricked
them about where she lived, Emanuel Hammond, one of the men in the car,
ordered the driver to turn around, dim the headlights, and drive slowly
back toward the young woman. After the car crept close, Hammond leaped
from it with a sawed-off shotgun. He grabbed Love and threw her into the
car, face down onto the rear floorboard. While she screamed and begged
him not to hurt her, a wild-eyed Hammond beat her with the steel barrel
of the shotgun. Any woman in Love's position would have been terrified,
and even more so if she had known what Hammond had done to other women.
About six-and-a-half years before, in February 1982,
a young woman named Janet FN1 was returning home to the Virginia
Highlands section of Atlanta around 1:00 a.m., after having a late
dinner with her friends. A man named Antonio Stephney came up behind her
with a gun. He forced Janet into a dark alley. While Stephney was
robbing Janet, Emanuel Hammond appeared on the scene. Hammond told
Stephney that it was supposed to be Hammond's robbery. And he suggested
to Stephney that “we rob some more places.” Stephney agreed. He rooted
through Janet's purse, found her keys, and tossed them to Hammond,
telling him to go get Janet's car and bring it around. While Hammond
went to get her car, Stephney raped Janet. When Hammond got back with
the car, the two men forced Janet into the back seat, covered her with a
blanket, took her to several ATM machines in search of cash, and beat
her. While this was going on, Hammond was armed with a sawed-off shotgun.
FN1. We use only this woman's first name in order to
protect her privacy.
Hammond drove the car around while Stephney raped
Janet a second time and talked about killing her. Hammond, who was only
sixteen at the time, evidently did not yet have the stomach for murder.
Kidnapping maybe, but not murder. At one point when the car was stopped
and Stephney had stepped outside for awhile, Janet begged Hammond to
drive away. He hesitated but then sped away as Stephney stood in the
street and shot at them with a pistol. After a side trip to his
grandfather's house where he got rid of the shotgun, Hammond took Janet
to the police station.
By the time Hammond and Janet arrived at the police
station, she had been held hostage for three-and-a-half hours and had
been raped twice. According to her, Hammond “d[id] the talking” to the
police, describing the ordeal in a way that “ma[d]e the people there
think that [he and Janet] were both victims.” Even so, he was charged
with rape and aggravated sodomy. Those charges against him were
dismissed in December 1982. The reason probably was that despite his
involvement in the crimes against Janet, Hammond's belatedly appearing
conscience may have saved her life. As far as the record shows, that was
the last time his conscience would make an appearance, belatedly or
otherwise.
The dismissal of the charges against him provided
Hammond with an opportunity to straighten out his life. He quickly
failed to take advantage of it. Ten days after the rape and sodomy
charges against him were dismissed, Hammond put his apprenticeship with
Antonio Stephney behind him and struck out on his own. On the night of
December 17, 1982, Hammond came upon a woman as she arrived at her
apartment on Briarcliff Road in Atlanta. Because this woman, named Trinh,
FN2 had worked the late shift, she did not get home until 1:30 a.m. As
she tried to get out of her car, Hammond loomed over her, stuck a knife
to her neck, and forced her back into the car. When she resisted, he
beat her and slashed her hand with the knife. He grabbed her purse and
demanded her credit cards. For the next hour Hammond terrorized Trinh.
He drove her around, telling her he was going to rape her and kill her
and stuff her body in the trunk of her car. She escaped with her life
when Hammond had to pull the car into a service station to get some gas.
When he did that, Trinh jumped out of the car and ran to the attendant
for help. Hammond was quickly caught and charged. He pleaded guilty to
kidnapping with bodily injury and armed robbery. He was sentenced to
eight years in prison.
FN2. As we did with Janet, we use only Trinh's first
name in order to protect her privacy.
Prison life did not suit Hammond. He was taught some
vocational skills in prison, but the main lesson he took from the
experience was not a constructive one. Hammond vowed to his girlfriend
that he would never let another of his victims live to send him back to
prison. With each victim, he would come closer to fulfilling that vow.
In 1987 Hammond was released after serving less than
half of his sentence for attacking Trinh. In May 1988 he saw a woman,
whose name was Ellen,FN3 entering her Rock Springs Circle apartment in
Atlanta around lunch time. Hammond grabbed Ellen from behind, put her
into a headlock and dragged her at knife point down two flights of
stairs to her car. He rifled through Ellen's purse, found her bank cards,
and drove her around the city forcing her to make withdrawals from
several ATM machines. When Ellen had withdrawn the limit on her card,
Hammond drove her to a trash-filled wooded area on a steep incline.
There he raped her. Then he stabbed her repeatedly and slit her throat.
Ellen had the presence of mind to fake convulsions so Hammond would
think she was dying. After terrorizing and abusing her for three-and-a-half
hours and seeing her convulse, Hammond hid Ellen's body under a blanket
in the trash and left her for dead.
FN3. As we did with Janet and Trinh, we use only
Ellen's first name in order to protect her privacy.
Thinking that he had succeeded in killing Ellen,
Hammond bragged to his girlfriend, Janice Weldon, that he had killed a
woman. He took her by the wooded area to show her where he had done it,
and then he took her to see Ellen's car, which he had stolen. While
looking into that car, Weldon noticed a Mother's Day card inside, all
addressed and ready to be mailed.
After Hammond left Ellen, she pulled off the blanket,
which he had intended to be her burial shroud, and she dragged herself
from the wooded area to a street where she found help. We don't know
when Hammond found out Ellen had survived. We do know that only two
months after kidnapping, robbing, raping, and attempting to kill Ellen,
Hammond abducted Julie Love. This time he was accompanied by his
girlfriend Weldon and by his own apprentice, his 18-year-old cousin
Maurice Porter.
As she lay on the floorboard of his car, Julie Love
could not have known that Hammond's crimes against her were the latest
in a series of his increasingly violent attacks on women. She could not
have known about his vow to make sure that no more of his victims would
live to testify against him. She did know, however, that Hammond was
cruel, violent, and dangerous. Love, who was only five feet tall and
weighed just a hundred pounds, knew that because Hammond kept beating
her. She was screaming.
After he finished beating Julie Love, Hammond wanted a cigarette.
He told Weldon, who was driving, to take them to a service station in
the Bankhead section of Atlanta so he could get something to smoke.
Leaving Love in the back seat of the car with Porter, Hammond rested the
shotgun against the front seat and went into the store. Weldon, Porter,
and Love sat in the car in silence.
When Hammond returned to the Cutlass, he slid into
the front seat next to Weldon and told her to drive the group to his
grandmother's house in northwest Atlanta. As they pulled up near the
house and stopped, Hammond tossed Love's purse to Weldon and ordered her
to go through it. Weldon rummaged through the purse, finding a little
cash and some ATM cards. Hammond took the cards. He asked Love how much
money she had in her bank account. She told him that she did not have
much. Love begged Hammond not to hurt her.
She told him she kept cash at her apartment, and they
could go get it. She also pleaded with him to call her boyfriend, who
would give them anything they wanted if they would just not hurt her.
Worried that Love's boyfriend might be at the apartment, the group went
to a pay phone where Weldon called Love's apartment. She got Love's
answering machine. She heard Love's voice say: “Hi, this is Julie, and I
can't come to the phone right now, but if you leave your name and number,
I'll be glad to get in touch with you as soon as I can. Have a nice day,
and thanks for calling.” Satisfied that Love's boyfriend was not there,
the group drove to the apartment complex. Once there, however, they saw
a security kiosk out front and turned away.
The group doubled back to northwest Atlanta. Hammond
directed Weldon to drive to Grove Park Elementary School, which was just
down the street from his grandmother's house. Standing on the steps of
the school, his sawed-off shotgun in hand, Hammond forced Love to tell
him the pin number for her ATM cards. She was so nervous that she gave
him the wrong number.
Holding Love at gunpoint at the school, Hammond sent
Porter and Weldon to withdraw money using her ATM cards. Weldon drove
Porter to a bank in the West End area of town, where he punched the pin
number Love had given into two different ATM machines. Because it was
the wrong number, the machines gave no money and kept the cards.
Realizing they would be returning empty-handed, Weldon (calling Hammond
by his nickname) told Porter: “Demon going to be mad.” He was. When
Porter and Weldon returned to the school with neither the cash nor the
cards, Hammond became enraged. Standing over a seated Love, Hammond
called her “bitch,” hit her hard in the back with the shotgun barrel,
and began beating her again. Because the beating “looked painful” to
Porter and he no longer wanted to see it, he asked Hammond to “let [him]
talk to [Love] for a minute.” Hammond agreed.
The “talk” started out innocently enough. Porter took
Love to the side and told her to “do nothing to make [Hammond] mad.”
Porter, however, had more than Love's best interests in mind. After
advising her to avoid Hammond's temper, Porter proceeded to rape her.
Love was, according to Weldon, “scared to death” and begged Porter
“Please don't hurt me.”
As Porter was raping Julie Love, Weldon and Hammond
approached them. Weldon grinned at Porter, called him by his nickname, “Gooney,”
and told him he was “a fool.” Hammond told Porter to “come on” because
“that was enough.” Porter and Love pulled their clothes back on, and all
four of them got back into the Cutlass. It was between 1 and 2 a.m. At
that point Love had been at the group's mercy for more than three hours.
Sitting once again behind the wheel of the Cutlass,
Weldon decided that she “didn't want to be involved” anymore. She asked
Hammond to let her go home. Weldon's wanting out made Hammond “real
angry,” but because she was “getting on his nerves” he told Weldon to
“go on.” She drove the group to her apartment in College Park, on the
south side of Atlanta. Hammond and Weldon got out of the car, leaving
Porter alone with Julie Love. Standing in the doorway of the apartment,
Hammond gave Love's purse to Weldon and told her to “get rid of it.” She
put the purse in a paper sack and threw it into a dumpster.
Leaving Weldon behind, Hammond, Porter, and Love
continued their crisscross of the city. Hammond directed Porter, who was
driving, to Hammond's mother's house in Cobb County. The three went
inside where they found Hammond's mother standing in her kitchen reading
a newspaper. Despite the late hour and the unknown white woman with her
son and nephew, Hammond's mother barely acknowledged them when they
greeted her. Hammond walked Porter and Love back to his bedroom. For
five minutes he left them sitting alone, apparently while he talked with
his mother. When Hammond returned, the three of them left in the Cutlass.
Hammond ordered Porter to take them back to Grove
Park Elementary. As they neared the school, he had Porter turn onto a
side street and cut off the car. Then Hammond got out and walked to the
trunk, where he got three clothes hangers and a sheet. He unraveled the
hangers and forced Love to lie on her stomach across the back seat of
the sedan. Hammond then ordered her to put her feet together, and when
she did he tied them with one of the unraveled coat hangers. Then he
tied her hands together behind her back with another hanger. Face down
and bound, Love lay on the rear seat while Hammond covered her head and
body with the sheet. Then he wrapped the third hanger around her neck.
Hammond handed one end of the hanger to Porter and
told him to pull. He did while Hammond pulled in the opposite direction.
As the wire tightened around her neck, Julie Love struggled, kicked,
screamed, and fought for her life. Small as she was, the fitness teacher
managed to free her hands. As Hammond wrestled to get Love under
control, she thrashed about and pleaded, “Don't do it.” Calling her a
bitch, he told her to “[s]hut up before I kill you right here.”
Hammond's threat scared Love into submission long
enough for him to rebind her hands with the coat hangers. As she lay
there bound, Hammond sat and thought for awhile. Then he had Porter
start the Cutlass and drive them to a wooded area off Grove Park Place,
about two miles from the school. Once they were there, Hammond had
Porter drive up and down the street several times. When he settled on a
spot, Hammond ordered Porter to pull over and raise the car's hood.
Hammond removed the bindings from Love's feet, and
then he marched her through trash-strewn bushes down into the woods.
Three or four minutes later Porter got out of the car to lower the hood.
He heard a gunshot. Porter hung his head for a moment, and when he
looked up he saw Hammond coming up out of the woods alone. Hammond was
holding the sawed-off shotgun and had blood spots on his face. Porter
said: “You didn't do what I think you did.” Hammond's only response was
that he “had to.”
At Hammond's direction, Porter drove back to Weldon's
apartment on the south side. They arrived as the sun was coming up.
Porter dropped onto the sofa and dozed off for a few hours. When he
awoke, Hammond called him into a back bedroom where he was waiting with
Weldon. Hammond made it clear that if either one of them ever told
anybody what he had done to Julie Love, he would kill them both. Then he
described the murder. He told them that as he was about to shoot Love
she raised her hands in front of her face, and he “blew her head off”
with an “execution style” shotgun blast. The shot, he said, “blew the
side of her face off.” Hammond boasted, “You should have seen how I did
it.”
Shortly after Hammond killed Julie Love, Weldon told
him her children needed “something to eat in the house.” He gave Weldon
a pair of small, diamond-and-gold earrings to pawn. Hammond described to
Weldon how he had taken the earrings from Love while the two waited for
Weldon and Porter to return from the bank. Love had begged him not to
take them because they had belonged to her mother, who had died a few
years before, and she cherished them. He took them from her anyway. Even
so, Hammond told Weldon: “I didn't get a damn thing from the lady and I
took her life.”
Meanwhile, Julie Love's friends and family had no
idea where she was. All they knew was that on July 11, 1988, she had met
with a group of people for a career chat, as she did every Monday night.
Then she disappeared.
Love and Mark Kaplan had become engaged on the Fourth
of July, just a week before she went missing. Kaplan had last seen her
earlier that day when he kissed her as he left for work. He called
Love's apartment later that night, expecting her to be back from her
regular Monday meeting. When he got her answering machine Kaplan left a
message. He phoned Love again on each of the next two days. When he was
unable to locate her after two days, Kaplan reported her disappearance
to the police, and an officer followed him back to Love's apartment.
They could not get in. The police were not yet willing to launch an
investigation into Love's disappearance, so Kaplan launched one himself.
After calling her family and friends for help and information, Kaplan
eventually discovered the red Mustang Love had been driving. It was on
the road half a mile from his home, jutting diagonally out from the curb,
abandoned. The formal police investigation began when Kaplan showed
police the abandoned car.
On Thursday morning, three days after Love's
disappearance, an officer went with Kaplan to her apartment so they
could listen to her answering machine tape. The tape was full of
unplayed messages, starting with one Kaplan had left around 9:45 p.m. on
the night Love had disappeared. There were messages from him: “Give me a
call whenever you get home. Just want to hear your voice. Okay?” “You
got me worried. Whenever you get home tonight, give me a buzz.” There
were also messages from Love's family: “Hey, Doodle ... it's Daddy again....
I'll keep trying.” And from her colleagues at work: “We were just
wondering if ... something had happened or what.... We'll be out on the
playground. Give me a call at home if you need to.” “I'm concerned
because we haven't heard from you and we've been expecting you in the
playroom at the sporting club.” And from her friends: “Got me worried
about you. Where are you, Julie? We haven't talked to you in two days.”
“Just call me sometime, let me know that you're alive and well, which I
hope you are, and I'm sure you are, but let me hear from you.”
“Everybody's trying to find you.... So give me a call no matter what
time you come in and call your Dad so he knows you're okay.” In all, the
tape held thirty-one messages from people worried because Julie Love had
vanished.
After getting the police investigation started,
Kaplan did more. He made flyers. He organized rallies. He opened his
home to hundreds of volunteers who tried everything from “ask[ing]
questions” to “comb[ing] the woods.” He appealed “to anyone who knew
anything to please come forward and share information that would help [him]
find Julie.” For more than a year no one did. During all of that time,
none of the many people who cared about Julie Love knew that her body
lay beneath some garbage in a northwest Atlanta trash pile. They might
never have known but for the fact that Hammond made the mistake of
abusing his girlfriend, Janice Weldon, one time too many.
On a July night in 1989, a year after he had brutally
murdered Julie Love, Hammond was choking Janice Weldon during an
argument about some cocaine. When he finally loosened his grip on her
neck, and as Weldon was gasping for air, Hammond pointed his gun at her.
She pleaded for her life. It was not the first time Hammond had done
that sort of thing to Weldon, but it was to be the last. Although she
was scared of Hammond, Weldon decided she'd had enough. She went to the
police station and “took a warrant out on him” for the assault. Because
Weldon was sure that Hammond would kill her for getting the warrant, she
felt she had nothing to lose from telling the police about the murder of
Julie Love. So she did.
In order to corroborate what Weldon had told them
about Love's murder, investigators outfitted Weldon with a recording
device and sent her to talk to Maurice Porter. What Porter said during
that conversation, which he did not know was being recorded,
corroborated Weldon's statements to the police. Porter and Hammond were
arrested. Investigators questioned Porter, who admitted his
participation in the crimes against Julie Love and identified Hammond as
her killer. Porter then took officers to the area where Love's body had
been left more than a year before. The officers found her remains within
thirty yards of where Porter had told them they would be.
In September 1989, Hammond and Porter were charged
with murder, felony murder, kidnapping, and armed robbery. Porter was
also charged with rape. He pleaded guilty. The State recommended that
Porter receive three life sentences instead of a death sentence in
exchange for his testimony at Hammond's trial in February and March
1990. Janice Weldon was given immunity in return for her testimony.
In addition to the eyewitness accounts provided by
Porter and Weldon at trial, the State presented the testimony of Phillip
Williams, who had been an inmate in the jail where Hammond was held on
charges of assaulting Weldon. Williams testified that Hammond had
offered him $20,000 and help establishing himself on the outside if he
would kill Weldon. Hammond had told him that Weldon “knowed too much.”
Hammond also told Williams that he had killed someone. He gave Williams
a piece of paper with his name and address written on it. Janet, Trinh,
and Ellen, three of Hammond's other victims, all testified about their
encounters with Hammond. Each woman told of her hours-long ordeal of
being abducted, assaulted, and robbed. Each woman's story foreshadowed
what happened to Julie Love. And each woman's account showed how
Hammond's violence against women had been intensifying.
The State presented more evidence. Michael Dominick
testified that Hammond had sold him a sawed-off shotgun for “about $20”
and “around five rocks” of cocaine. Dominick identified the shotgun
shown to him by the prosecutor as the one he bought from Hammond; he
recognized a string he had tied to it after the purchase. He testified
that the gun had been in his possession from the time he bought it until
it was confiscated by police during a drug bust. Kelly Fite, a firearms
examiner for the Georgia Bureau of Investigation's crime laboratory,
testified that wadding found near Julie Love's remains had been
discharged from a sawed-off 12-gauge shotgun.
The State also presented the testimony of Dr. Randy
Hanzlick, a medical examiner for Fulton County, who told of finding and
analyzing some remains of Julie Love's body. He described the area where
most of the skeletal remains were found as a sloped bank that contained
“an old broken television case” resting “part way up on a pile of
tires.” On top of the broken television was a woman's blouse and bra
with rib, shoulder, and back bones. The blouse had held those upper-body
bones in roughly the “proper position,” while other smaller bones had
cascaded into the crevices of the tire pile below.
Just up the slope from the television, Dr. Hanzlick
found fragments of Julie Love's skull. Smaller shards of it had trickled
down through the tires. Altogether, he recovered twenty-two pieces of
Love's skull, including one with dark “Caucasian head hair” attached to
it. Nearby he found a glass eye with a brown iris. Love had brown hair,
and she'd had a glass eye since she was a little girl. When Dr. Hanzlick
glued the fragments of her skull together he saw a beveled semicircle-shaped
hole, nearly an inch in diameter, in what had been Julie Love's head.
Beneath the skull fragments, he found a pinkish disk of shotgun wadding
with a diameter similar to the hole in the skull. Combining all of his
findings, Dr. Hanzlick concluded that Love had died from a “gunshot
wound to the head” that was “consistent with a closeup blast by a 12-gauge
sawed-off shotgun.”
“Demon” had told Porter and Weldon that he “blew the
side of [Love's] face off” and had boasted that they should have seen
how he did it. In a sense Dr. Hanzlick did see that. He never found the
bones that made up the right side of Julie Love's face.
I.
After a trial in February and March 1990, a Fulton
County jury convicted Hammond of murder, kidnapping, and armed robbery.
A two-day sentencing phase followed. On March 9, 1990, the jury found
three aggravating circumstances: the murder of Julie Love was
outrageously and wantonly vile; it had been committed during another
capital felony (armed robbery); and Hammond had a prior armed robbery
conviction. Hammond was sentenced to die. He appealed his conviction and
sentence to the Georgia Supreme Court. Hammond v. State, 260 Ga. 591,
398 S.E.2d 168, 169 (Ga.1990) ( Hammond I). That court rejected all of
Hammond's challenges, but it remanded the case to the trial court “to
give [Hammond] an opportunity to litigate the issue of trial counsel's
effectiveness.” Id. at 175.
After conducting an extensive four-day hearing on
Hammond's ineffective assistance claims, the trial court issued a sixty-seven
page order explaining its decision not to vacate the convictions and
sentences. State v. Hammond, Order Denying Mot. to Vacate Conviction and
Sentence, Ga.Super. Ct. Fulton County, at 60, Mar. 4, 1994 (Hull, J.)
(“Remand Order”). As the Georgia Supreme Court later summarized it, the
trial court “concluded that Hammond's trial counsel rendered reasonably
effective assistance throughout all phases of trial,” and “that the
evidence of Hammond's guilt was so overwhelming that any deficiencies in
trial counsel's performance did not affect the jury's decision in either
phase of trial.” Hammond v. State, 264 Ga. 879, 452 S.E.2d 745, 754
(1995) ( Hammond II). On return of the case from remand, the Georgia
Supreme Court agreed with the trial court that Hammond's counsel had not
rendered ineffective assistance either in the original trial or on
direct appeal. Id. at 754. The court also concluded that the evidence
supported Hammond's convictions and that the death sentence fit the
crime. Id. It affirmed the trial court's judgment in its entirety. Id.
Hammond filed a petition for a writ of habeas corpus
in the Superior Court of Butts County in December 1995. He filed an
amended petition a little more than two years later and then a second
amended petition in April 1999. The state trial court conducted an
evidentiary hearing on that second amended petition in December 1999 and
eventually denied it in November 2000. Hammond v. Head, Order Denying
Second Amended Petition for Writ of Habeas Corpus, Ga.Super. Ct. Butts
County, at 3, Nov. 8, 2000 (Brannen, C.J.) (“State Habeas Order”).
Hammond asked the Georgia Supreme Court for a certificate of probable
cause to appeal, but that court denied Hammond's application in May
2002. Hammond appealed to the United States Supreme Court, but his
petition for a writ of certiorari was denied in January 2003.
Hammond then filed his petition for federal habeas
corpus in the United States District Court for the Northern District of
Georgia in June 2003. In January 2004 he filed an amended petition that
raised fifteen claims. In January 2008 the district court denied habeas
relief because it concluded that the state courts' resolution of the
claims he had presented to those courts was “neither contrary to nor an
unreasonable application of clearly established federal law.” Hammond v.
Terry, No. 1:03-cv-1646, at 5-57, 80 (N.D.Ga. Jan. 4, 2008) (District
Court Order). The district court also decided that Hammond was not
entitled to habeas relief on any of the claims he raised that had not
been decided on their merits by the state courts. Finally, the district
court denied Hammond's requests for discovery and his request for an
evidentiary hearing, which related to one of his prosecutorial
misconduct claims.
Hammond filed a motion to alter or amend the judgment
of the district court, which was denied in February 2008. The court did
issue an order granting in part Hammond's motion for a certificate of
appealability. That order gave Hammond permission to appeal on some of
his claims. We later granted Hammond's motion to expand the COA to cover
issues relating to his request for discovery and an evidentiary hearing
on one of his Brady claims.
II.
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused ...
violates due process where the evidence is material either to guilt or
to punishment.” A Brady violation has three components: “[1] The
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; [2] that evidence must have
been suppressed by the State, either willfully or inadvertently; and [3]
prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82,
119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). The prejudice or
materiality requirement is satisfied if “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, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (internal
quotation marks omitted); see also Kyles v. Whitley, 514 U.S. 419, 433,
115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995). We determine materiality
by asking whether “the government's evidentiary suppressions, viewed
cumulatively, undermine confidence in the guilty verdict.” Smith v.
Sec'y, Dep't of Corr., 572 F.3d 1327, 1334 (11th Cir.2009) (citing Kyles,
514 U.S. at 434, 436-37 n. 10, 115 S.Ct. at 1566, 1567 n. 10).
Under AEDPA, if the state court had addressed
Hammond's Brady claims on the merits, we could not grant him relief
unless the state court's decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) ... 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); LeCroy v.
Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1259 (11th Cir.2005).
Hammond raised his Brady claims in his state habeas
petition in 2003. Those claims were based on evidence that Hammond
asserted had previously been suppressed by the State, and so he argued
that the claims were timely. The state habeas court did not disagree. It
simply failed to address the claims as Brady claims, instead treating
them as ineffective assistance claims. For that reason the district
court reviewed the Brady claims de novo, without applying any deference
under AEDPA. We do the same. See, e.g., Toles v. Gibson, 269 F.3d 1167,
1172 (10th Cir.2001) (“Under the AEDPA, the appropriate standard of
review for a particular claim hinges on the treatment of that claim by
the state courts. If a claim was not decided on the merits by the state
courts ... we may exercise our independent judgment in deciding the
claim.”); DiBenedetto v. Hall, 272 F.3d 1, 7 (1st Cir.2001) (“Faced with
state court opinions that do not decide constitutional claims raised by
the defendant ... federal courts apply de novo review to the federal
constitutional claims raised in habeas petitions.”). Hammond brings
twelve Brady claims to us.
III.
We begin with the six Brady claims that fail to reach
the materiality stage of the analysis. See Smith v. Sec'y, Dep't of Corr.,
572 F.3d 1327, 1337-42 (11th Cir.2009) (following the same approach).
A.
Hammond claims that the prosecution violated Giglio
v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by
eliciting misleading testimony from Janice Weldon about her criminal
background.FN4 Weldon testified that she had never been arrested or
spent a single day in jail. Hammond contends that Weldon's statements
were misleading because the State possessed evidence, mostly in the form
of statements by Weldon herself, implicating her in several violent
crimes including the Love murder, the Gwendale Turner murder, and the
kidnapping of another woman.
FN4. Claims arising under Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), are a type of Brady
claim that have a different and more defense-friendly measure of
materiality. United States v. Alzate, 47 F.3d 1103, 1110 (11th
Cir.1995). That difference does not figure into this case because, as we
will soon see, the only Giglio claims Hammond raises do not make it to
the materiality stage.
A Giglio claim involves an aggravated type of Brady
violation in which the suppression of evidence enabled the prosecutor to
put before the jury what he knew was false or misleading testimony, Ford
v. Hall, 546 F.3d 1326, 1332 (11th Cir.2008), or allowed the prosecutor
himself to make a false statement to the jury, Alzate, 47 F.3d at 1110.
The testimony or statement elicited or made must have been a false one.
See Smith, 572 F.3d at 1335 (“Accurate statements do not violate the
Giglio rule.”); United States v. Meros, 866 F.2d 1304, 1309 (11th
Cir.1989) ( “Simply put, there has been no violation of Giglio in this
case since [the witness'] testimony that he voluntarily turned himself
in was true.”).
Hammond concedes that Weldon's testimony about her
criminal history was literally accurate. He admits that she had never
been arrested, nor had she been in jail even for a single day. Georgia
Bureau of Investigation (GBI) Agent Nita Weston corroborated that fact
by testifying that she had been “unable to find any criminal history on
Weldon.” Because there was no lie, there was no Giglio violation.
B.
Hammond claims that the State failed to disclose its
suspicions that Weldon had been involved in crimes against a woman named
Ellen. In May 1988, just two months before Love was murdered, Ellen was
abducted, robbed, raped, stabbed repeatedly, and left for dead. See
supra at 1299. Ellen testified at Hammond's trial in this case and
identified him as her attacker. Her testimony was admitted as similar-act
evidence because the incident was so similar to Porter's and Weldon's
accounts of what they and Hammond had done to Julie Love. Hammond's
counsel wanted to impeach Weldon's credibility by showing that she had
been the female accomplice in the crimes against Ellen. He complains
that the State, which suspected that Weldon had been that accomplice,
failed to disclose its suspicion to the defense.
It is unclear, however, what actual evidence Hammond
contends should have been disclosed. He asserts that the police believed
that Weldon was probably the female accomplice. Yet Hammond has cited no
tangible evidence that was withheld that tended to show the accomplice
was Weldon. He points to no evidence at all beyond what came out at his
trial.
Weldon's story was that she learned of Ellen's
kidnapping the next day, when Hammond told her about it. It came out,
however, that Weldon knew the details of the crime against Ellen,
including the fact that her stolen and abandoned car had an unmailed
Mother's Day card in it. (She said Hammond took her to the car and she
looked inside it.) Ellen, who had every reason to know and none to lie,
testified that there was a female accomplice. Weldon, who claimed to
have been told about the crime by Hammond, did not mention one. Everyone,
including the jury, knew that Weldon had been Hammond's girlfriend at
the time. Finally, Weldon bore a striking physical resemblance to
another woman whom Ellen had originally identified as Hammond's female
accomplice.
The point is that of course the police suspected that
Weldon had been Hammond's female accomplice in the crimes against Ellen.
All of the reasons for their suspicions came out at trial. For those
same reasons Hammond's trial counsel also suspected that Weldon had been
the accomplice. He pursued that point before the jury. Counsel cross-examined
Ellen about it, getting her to admit that she had mistakenly identified
another woman as the accomplice. He then showed Ellen a picture of
Weldon for comparison's sake. He thought about having Weldon brought
into the courtroom so Ellen could look at her, but decided at the last
minute not to do that.
Although we rest our decision about this Brady claim on the lack of
suppression, we note that any thought of materiality brings to mind the
awkwardness of this claim for Hammond. Weldon was his girlfriend. She
and Porter testified that she was his accomplice in the abduction and
robbery of Julie Love. If, as Hammond insists, his girlfriend Weldon was
an accomplice in the crimes committed against Ellen, that makes it more
likely that Hammond was the man who committed those crimes. And anything
that makes it more likely that Hammond committed the crimes against
Ellen makes it more likely that he committed the strikingly similar
crimes against Julie Love just two months later.
C.
Hammond claims that the State withheld evidence about
the amount of money it paid Weldon for her testimony. He adds that
Weldon lied when she acknowledged only around $650 in cash payments from
the GBI and Fulton County, and when she testified that the money was
given to her so that she could relocate. Hammond asserts that the truth
is that Weldon got at least 22 separate payments, mostly in cash, that
totaled around $2,600. Hammond says that because his counsel did not
have that information, he could not impeach Weldon with it. Hammond's
trial counsel swore in a later affidavit that “I was never provided with
information accurately detailing the payments made to Janice Weldon.”
Hammond's claim is not supported by the record. At
trial, during his cross examination of Weldon, Hammond's counsel said:
“They spent $1,260 on you for food, did they not?” He also asked whether
the GBI paid “$74.51 to have you moved?”, whether “they spent $315 for
your household expenses?”, and whether the GBI paid “for your lodging
that totaled $429.70?”. Weldon acknowledged that she had been paid about
$650, but disclaimed any knowledge of the amount that the GBI had paid
to have her moved or for her lodging. For those expenses, she stated
that the GBI “didn't pay me. They paid the hotel fee.” Hammond's counsel
concluded his line of questions by asking:
Q. So you got a total, did you not, Miss Weldon, of
almost $2500 for your expenses while you were in the witness program,
did you not? A. Just like I said, they didn't show me no papers about no
2,000 and whatever dollars you're talking about. Q. Well, you don't have
any doubt that that's inaccurate, do you? A. Well, I'm sure they didn't
pay that much, because my lawyer took over.
As the trial transcript shows, Hammond's counsel
possessed detailed figures about how much money had been spent to
support Weldon. He knew her hotel bill and moving expenses down to the
pennies, and was aware of the rough total amount of $2,500. He used that
information to cross-examine Weldon. The trial transcript shows there
was disclosure; there was no suppression.
Because information about the payments to Weldon was
not suppressed, Hammond's related Giglio claim based on Weldon's alleged
lies about the amount of the payments to her also fails. Ford, 546 F.3d
at 1331 (“ Giglio error, a species of Brady error, occurs when the
undisclosed evidence demonstrates that the prosecution's case included
perjured testimony and that the prosecution knew, or should have known,
of the perjury.”) (internal quotation marks omitted) (emphasis added).
D.
Hammond claims that the State suppressed evidence
that it had bullied Phillip Williams into testifying against Hammond
after Williams attempted to recant what he had said earlier. Williams
testified at trial that he had been incarcerated in the Fulton County
jail with Hammond. He told the jury that, after they had become friends,
Hammond had offered him $20,000, a car, and assistance with getting a
job on the outside if Williams, who was slated for release, would kill
Weldon. Williams further testified that Hammond had shown him pictures
of Weldon and had written down his address so that Williams could
contact Hammond after they got out of jail. According to Williams,
Hammond had said that Weldon needed to be killed “because she knowed too
much.” Williams explained that he had gone to the police with the
information because he “just didn't want to see Janice [Weldon] get hurt,
knowing she had kids and stuff” and added that he believed Hammond would
carry out his plan to have her killed. Williams testified that he did
not expect anything in return for his testimony against Hammond,
although he conceded that he had failed to respond to his subpoena and
so had been arrested and held as a material witness for the trial.
Eight years after the trial, however, Williams signed
an affidavit telling a much different story. In the 1998 affidavit
Williams swore that “I had agreed to testify that Emanuel Hammond had
offered me money to kill Janice Weldon. It wasn't true but at the time I
had a very bad heroin addiction and I thought that if I agreed to
testify I would get out of jail faster....” Williams also claimed that
he changed his mind and decided not to testify against Hammond, but the
prosecutor had told him that if he refused to testify he would be
falsely charged with other crimes and sent to prison. And if he agreed
to testify, charges pending against him would be reduced or dropped.
Williams said that he had been in heroin withdrawal and just wanted to
get the whole thing over with so he could return to the street. The
affidavit does not state that Williams told the prosecutor that his
statements incriminating Hammond were false, only that he had changed
his mind about testifying and then that the prosecutor had pressured him
back into doing it.
After comparing Williams' testimony to his affidavit,
the district court found that the affidavit was an after-the-fact
fabrication and so refused to give it any weight. District Court Order,
at 68-69. The court observed that Williams' 1998 allegations against the
prosecutor were vague. It also noted that the prosecutor could not have
agreed to drop any pending charges against Williams, as the affidavit
claimed, because none were pending at that time. Moreover, Williams'
trial testimony against Hammond was corroborated by the handwritten note
containing Hammond's address that had been given to Williams and
admitted into evidence at trial. In view of all the facts and
circumstances, the district court made a factfinding that the story
contained in Williams' affidavit was a lie.
We review the district court's factfindings only for
clear error. United States v. Hogan, 986 F.2d 1364, 1371 (11th
Cir.1993). Hammond has not argued that the district court's finding that
the prosecutor did not bully him into testifying was clear error, and we
do not believe it was. As a result, this Brady claim has no factual
basis. A prosecutor cannot be required to disclose that he bullied and
threatened a witness when he did not.
E.
Hammond claims that the State suppressed evidence
that Phillip Williams also had an extensive criminal record and a
history of drug abuse. He argues that information about Williams' drug
habit and prior convictions could have been used to impeach Williams'
testimony.
Again, the record contradicts Hammond's claim. During
Williams' cross-examination, Hammond's trial counsel asked him: Q. But
you were in [jail] for possession of cocaine, weren't you? A. Yes. Q.
And how often do you use cocaine? * * * A. Once, twice a week. Q. And
how long have you used it? A. About two or three years.
Trial counsel also put into evidence certified copies
of Williams' five prior convictions-two convictions for theft, each with
a 12-month sentence; a conviction for theft with a 9-month sentence; a
conviction for robbery with a 5-year sentence; and a drug conviction
with a 2-year sentence. Hammond's trial counsel obviously had a lot of
evidence of Williams' drug use and prior convictions, and Hammond has
not specified what else, if anything, was suppressed.
F.
Hammond claims that the State failed to disclose that
it sent the sawed-off shotgun it alleged was the murder weapon for
forensic comparison to the wadding found by Love's body. He offers an
inventive conspiracy theory, which goes like this: the State
surreptitiously removed the shotgun from the evidentiary exhibits after
it had been marked as an exhibit; the State had the shotgun tested; the
test revealed that it was not the same shotgun that had fired the
wadding found by Love's body; the State then hid that result from the
defense; and to make the cover-up complete, it secretly slipped the
shotgun back into evidence. Thus, Hammond argues that the prosecutor
lied when he told the jury that the shotgun was the murder weapon
because the prosecutor allegedly knew about the alleged negative result
of the alleged forensic test.
While this claim may be firmly moored in Hammond's
imagination, it is unmoored from any evidence in the record. His Giglio
claim that the prosecutor lied about the shotgun being the murder weapon
requires him to demonstrate that the prosecutor knew the shotgun was not
the murder weapon. Not only is there no evidence the prosecutor knew
that fact, there is also no evidence it was a fact. And there is plenty
of evidence the shotgun was in fact the murder weapon. Julie Love was
killed by a blast to the head that was “suggestive of a shotgun wound,”
and a shotgun wadding was found in the decaying matter close to the
fragments of Julie Love's skull.FN5 That wadding came not just from a
12-gauge shotgun, but from a sawed-off 12-gauge shotgun, precisely the
same type of shotgun admitted into evidence. Michael Dominick testified
that he had bought that sawed-off 12-gauge shotgun from Hammond, and he
identified it by its missing trigger guard and by a string he had
attached. Dominick added that Hammond had brought him the gun “about
three or four weeks” before an August 1988 police raid. (Love had been
killed in July of that same year.) Porter also identified the shotgun as
the one that Hammond had used to murder Love. Hammond himself even
acknowledged that he had seen the shotgun before, although he told the
jury that it had belonged to Weldon, and that she, not he, had sold it
to Dominick.
FN5. The medical examiner testified: Q. Dr. Hanzlick,
in front of you I have placed state's exhibit number 68 and ask you if
you can identify that. * * * A. State's exhibit 68 is a pink, somewhat
distorted shotgun wadding identical to the one that I removed from the
ground the day that I examined the area around Julie Love's remains. Q.
Have you seen shotgun wadding before? A. Yes, I have. Q. Have you ever
seen shotgun wadding in that condition? A. I haven't seen one this
particular color with these particular defects, no, but I've seen ones
that in general are similar. Q. But the only time you've seen one
identical to this was at the crime scene? A. Yes. Q. And where was that
found? A. This was found in the soil or humus or decaying matter
adjacent to the area where the skull was, skull fragments were located.
* * * A. It's just a piece of shotgun wadding I found that was in close
proximity to the fragments of her skull that bore an injury suggestive
of a shotgun wound.
In the hope of countering all of that evidence,
Hammond theorizes that a forensic test ruled out the shotgun as the
murder weapon by finding that it did not fire the wadding found by
Love's body. But despite vigorous attempts during the state habeas
proceedings, Hammond failed to produce any evidence at all that the
shotgun had ever been forensically tested. Forensic investigator Kelly
Fite testified, “I see there's a gun on my report, but I don't recall
the gun, actually.” Nor did Fite have any recollection of doing any
tests, or of what later happened to shotgun. Hammond has not shown that
the prosecutor's assertion that the sawed-off shotgun was the murder
weapon was a lie. Plenty of evidence supported the assertion that it was
the murder weapon and no evidence indicates otherwise.
So all that remains of Hammond's Brady and Giglio
claims about the shotgun is the assertion that the prosecution failed to
notify him that it had temporarily removed the shotgun from the court
for possible forensic testing. But even that assertion has no factual
basis. Just hours after first locating the gun, the prosecutor told the
court: “[W]e found the gun yesterday afternoon, found this witness [Dominick]
this morning at 10:30. It's not like we've been sitting on a murder
weapon ever since the date of the crime, believe me. Your Honor, we also
expect there will be evidence from the crime lab technician.” The trial
court refused to admit the shotgun into evidence at that time and
ordered the prosecutor to put it away so the jury would not see it.
Hammond's counsel was on notice that the shotgun had not been admitted
into evidence and that the prosecutor planned to seek forensic testing
to connect it to the wadding. The prosecutor did not, as Hammond asserts,
“surreptitiously remov[e] the gun from the courtroom in the middle of
the trial.” Petitioner's Brief at 52. The shotgun had not at that point
been admitted into evidence. It was still a State's exhibit. The
prosecutor simply had it sent to the crime lab, after stating in open
court that was what he was going to do.
The next week, the shotgun returned to the courtroom
without any test results being mentioned.FN6 The failure to mention any
test results is the peg on which Hammond has hung his hat. He argues
that the test results must have shown that the shotgun did not fire the
wadding found by Love's body because otherwise the State would have
introduced those test results into evidence. There is not a speck of
evidence to show that there was a test indicating whether that sawed-off
12-gauge shotgun was the one that fired the wadding found with Love's
body. Hammond has had an opportunity to find any evidence that there was
a test, and what it showed, but he has come up with nothing.
FN6. The court's concerns about admitting the shotgun
into evidence were eventually resolved, perhaps by Hammond's own
testimony admitting that he recognized the shotgun but that it belonged
to Weldon. It was admitted into evidence. Hammond argues that, if the
shotgun was not in fact tested, the most likely explanation is that the
ballistics expert, Kelly Fite, immediately saw that the wadding was not
fired by the shotgun. Hammond could have, but did not, recall Fite to
the stand at trial to explain why there were no test results.
Fite was asked about test results during the state
habeas evidentiary hearing. He testified that although an intake form
showed that the gun had come to his lab, there was no record that it had
ever been tested. He said that one possible explanation is that a quick
look showed the wadding could not have come from the shotgun. Another
explanation, he said, is that no test was possible because the barrel
was oxidized (rusted), a condition that prevents matching the striations
in a barrel to a wadding. That explanation is by far the more likely one
because just a few days before Fite received the gun, Dominick, who had
bought it from Hammond, had testified that the barrel was in fact rusty:
Q. I want you to look down the barrel of this weapon, sir, if you will.
Is it rusty? A. Yes, sir.
There is a perfectly logical explanation in the
record, which does not require us to assume a multi-agency conspiracy
against Hammond, for the absence of any test results about the gun,
negative or otherwise. It was too rusty to test. The record shows it was
rusty.
There is no factual anchor for Hammond's Brady claim
about the shotgun. His trial counsel knew that the shotgun would be sent
for testing and knew that no test results came back. He actually argued
that fact to the jury. In the 19 years since his conviction Hammond has
not found a shred of evidence that any test was ever performed on the
gun, nor has he offered any explanation for the lack of a test that is
remotely as plausible as the rusted barrel preventing any useful test.
There is no evidence at all that the prosecutor received exculpatory
test results and hid them.
As a fallback request, Hammond seeks to have the
shotgun tested now. He argues that the district court abused its
discretion in refusing to order testing in view of the state habeas
court's earlier refusal of his similar request. Hammond hopes that
despite the poor condition of this sawed-off 12-gauge shotgun with its
rusty barrel, there is some chance that a test could show that it is not
the sawed-off 12-gauge shotgun that was used to murder Julie Love.
Hammond's request to have the shotgun tested comes
years too late. Whatever testing he wants done now he should have asked
for at the time of the trial. He could at least have asked Fite at trial
if any testing had been performed. The reason he did not pursue testing
is telling. Hammond's primary strategy at trial was to portray Weldon
and Porter as the murderers. Consistent with that strategy, he did not
attempt to present any evidence that this shotgun was not the murder
weapon. Instead, he took the position that it was the murder weapon but
that it belonged to Weldon, who along with Porter had used it to kill
Love. Hammond testified this shotgun was not his but he had seen it at
Weldon's house before Love was murdered. He told the jury that the gun
had belonged “to one of her ex-boyfriends or something; some dude she
was going with had apparently left it there.” Hammond also testified
that at one time he had gone with Weldon to sell the shotgun and had not
seen it since. To corroborate Hammond's story, his counsel called a man
named Richard Cody, who testified that he had been present when Weldon,
not Hammond, sold the shotgun to Dominick. Cody added that the five
rocks of crack cocaine that were given for the gun went to Weldon, not
to Hammond.
Hammond's counsel followed up on his strategy of
pinning the murder weapon on Weldon in his closing argument, when he
told the jury: “[Y]ou heard Mr. Porter take the stand and say well, I
remember that [shotgun] handle. Well, if he remembers the handle it's
because he used it. And then you heard Mr. Cody take the stand and said
yes, I was there; Miss Weldon sold this weapon and she's the one that
received the crack cocaine and not Mr. Hammond.” Counsel argued to the
jury, in line with his general defense theory, that Weldon and Porter
had committed the crime and had framed Hammond. Though he also noted in
passing the lack of forensic testing, the defense argument that Weldon
had owned and used the shotgun highlights the weakness of Hammond's
belated position that it was not the murder weapon after all.
In keeping with his new position, and to strengthen
his argument for testing the shotgun, Hammond's brief concedes that it
was, after all, his: “[T]he truth in this case-that Appellant possessed
a saw-off [sic] shotgun that was not the murder weapon-was virtually
valueless to the prosecution.” Petitioner's Brief at 53 (emphasis and
internal quotation marks omitted). At trial Hammond swore it was not his
shotgun; now he insists it is. A defendant can change his positions, but
he is not entitled to a post-trial fishing expedition to support his new
position, which contradicts his own testimony at trial, especially when
there is no reason to believe that what he belatedly seeks would be
useful.
IV.
The remainder of Hammond's Brady claims do reach the
cumulative materiality stage. “[T]he analytical process of gauging
materiality begins with determining the force and effect of each
individual item of favorable evidence not disclosed to the defense.”
Smith, 572 F.3d at 1346; see also Kyles, 514 U.S. at 437 n. 10, 115 S.Ct.
at 1567 n. 10 (“We evaluate the tendency and force of the undisclosed
evidence item by item; there is no other way. We evaluate its cumulative
effect ... separately.”); Maharaj v. Sec'y, Dep't of Corr., 432 F.3d
1292, 1310 (11th Cir.2005) (“[T]he only way to evaluate the cumulative
effect is to first examine each piece standing alone.”). That means we
size up each piece of evidence before aggregating it and considering the
cumulative impact. We then weigh that cumulative impact against the
inculpatory evidence presented at trial to decide whether our confidence
in the guilty verdict is undermined. Smith, 572 F.3d at 1346-47; see
also Kyles, 514 U.S. at 453, 115 S.Ct. at 1575 (“[T]he question is ...
whether we can be confident that the jury's verdict would have been the
same.”).
A.
Hammond claims that the State suppressed the
audiotape of the prosecutor's pretrial interview with Weldon and Porter.
He argues that the tape would have been useful because during that
interview Porter said that Weldon herself had removed Love's earrings,
which contradicted Weldon's statement that Hammond had given them to her
later. Weldon's and Porter's statements remained inconsistent about the
earrings.
In his 1998 affidavit, Hammond's trial counsel stated:
“Nor was I provided with the audiotape ... of the joint interview
between Mr. Porter and Ms. Weldon conducted by [the prosecutor].... When
I reviewed the State's file, there were no audiotapes or videotapes in
the file.” The State has not responded to Hammond's allegation that the
audiotape was not disclosed. The tape qualifies as impeachment evidence
and apparently was suppressed. Accordingly, this claim reaches the
materiality stage.
However, the “tendency and force,” see Kyles, 514 U.S.
at 437 n. 10, 115 S.Ct. at 1567 n. 10, of the statement about the
earrings on the tape is not strong. Had the tape been disclosed, it
would have revealed that Porter and Weldon disagreed at a pretrial
meeting about who had removed Love's earrings. FN7 But that discrepancy
is a detail. It is unsurprising that two accomplices would not have the
same recollection about all of the details of what happened during an
hours-long crime involving kidnapping, rape, robbery, beatings, and
murder. The “tendency and force” of the earring discrepancy by itself is
not strong, but it still must be considered cumulatively.
FN7. To the extent that the tape also would have
shown that Weldon, Porter, and the prosecutor all met together before
the trial, the jury was already aware of that. During her cross-examination,
Weldon volunteered that she had met with Porter and the prosecutor:
A.... [T]hey got me and Mr. Porter together and we would refresh our
remembry. Q. You and Mr. Porter got together and you refreshed your
memory? Is that what you are telling the jury? A. Yes. Q. When did you
do all this? * * * Q. Was it since you have reported this murder of
Julie Love? A. Yes. * * * Q. And you and Mr. Porter got together, didn't
you? A. We didn't get together. We was in the same room. Q. And you all
discussed it? A. Yes.
B.
Hammond claims that the State failed to disclose
Christopher Fagin's account of what happened to Gwendale Turner, who was
the man Weldon said in a tape-recorded interview Hammond had shot to
death. In an interview with police, Fagin had said that Weldon and
Hammond had robbed Turner and shot him to death. During Hammond's state
habeas action, his trial counsel stated in an affidavit that
“Christopher Fagin's videotaped interview with law enforcement agents
regarding the College Park (Gwendale Turner) homicide was also not made
available to me.” Hammond claims that had his counsel been armed with
Fagin's accusation, he could have impeached Weldon generally and
specifically about her efforts to minimize her criminal background. The
State has not denied that the Fagin tape recording was suppressed.
The gist of Fagin's statements was that in August of
1988, he had been present when Weldon and Hammond hatched a plan to rob
one of her Cobra Club customers (now believed to be Turner). Fagin had
been at Weldon's house when Hammond and Turner arrived from the club.
Hammond took Fagin into the next room and showed him a .38 pistol and a
sawed-off shotgun. Then Hammond, Weldon, and Turner left in Hammond's
car. Shortly thereafter, Fagin heard a gunshot and the car returned.
Fagin then helped dump the body, get rid of Turner's car, and clean the
blood out of Hammond's car.
Although Fagin's statements implicate Weldon, this is
a weak Brady claim because Fagin's statements largely corroborate
Weldon's own description of the Turner murder, which the jury heard.
Weldon's tape-recorded statement about the incident, which the defense
played to the jury at Hammond's trial, was quite similar to Fagin's
version of what happened. Weldon stated that she met a man (now believed
to be Turner) at the club, where he flashed money and tried to pick her
up. She described returning to her house, where Fagin was, then leaving
her house with Hammond and Turner but without Fagin. She said that she
was driving when Hammond, riding in the back, suddenly shot Turner with
a sawed-off shotgun. She said that she then returned to the house and
cleaned up her clothes. She explained that Fagin and Hammond had
returned to the body to remove Turner's shirt, which had his name on it,
and to take his money.
Hammond claims that Fagin's statements show that
Weldon lured Turner to his death and actively participated in his murder.
In fact, that is also a fair characterization of Weldon's own statements:
she lured Turner to his death at the hands of Hammond and participated
in the murder as the driver. To the extent that Hammond's goal was to
impeach Weldon by showing that she had been involved in violent crimes
before, Fagin's statements hardly add anything to Weldon's own
admissions. Further, Fagin's statements also would have provided strong
inculpatory evidence against Hammond. If they had been introduced at
trial, those statements would have corroborated Weldon's otherwise
uncorroborated account of Hammond murdering Turner. Because the effect
of Fagin's statements would have been as harmful as helpful to the
defense, we have some question whether they can accurately be described
as favorable. See Johnson v. Alabama, 256 F.3d 1156, 1189 (11th
Cir.2001) ( “[T]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching ...”) (quoting
Strickler, 527 U.S. at 281, 119 S.Ct. at 1948). Even assuming that they
can be considered favorable to Hammond, the balance of the opposing
effects of Fagin's statements is not much in Hammond's favor. The
suppressed statements will have little “tendency and force” in
undermining the State's case at the materiality stage. See Kyles, 514
U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10.
C.
Hammond claims that the State failed to disclose that
Weldon had been given broad immunity against prosecution for her crimes.
He concedes that his trial counsel knew that Weldon had received
immunity in the Love case, but argues that he had not been told that
Weldon would not be prosecuted for her alleged role in the crimes
against Ellen or for her admitted role in the Turner murder.
In support of this claim, Hammond presents an
affidavit from Weldon's attorney affirming that: “It was [his] further
understanding that [Weldon] would not be prosecuted in either DeKalb
County or Fulton County for any other potential criminal charges arising
from incidents about which she provided information to the State.”
Hammond's trial counsel stated that he was not aware “of the precise
nature and scope of the immunity agreement” entered into by Weldon.
In response, the State asserts only that the
suppressed immunity agreements covering the crimes against Ellen and
Turner are not material. As to the “tendency and force” of Weldon's
immunities, Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10,
generally speaking if an important witness has received immunity, that
is a significant fact. The Supreme Court has held that the government's
failure to disclose that it had promised immunity to its most important
witness is material and requires a new trial, at least where the case
depends almost entirely on that witness' testimony. Giglio, 405 U.S. at
154-55, 92 S.Ct. at 766; see also Moore v. Kemp, 809 F.2d 702, 720 (11th
Cir.1987) (remanding the case to the district court for an evidentiary
hearing to determine if the key government witness had been promised
immunity).
However, it is not the case that every immunity
agreement, or the scope of the immunity promised, is always material by
itself. See United States v. Burroughs, 830 F.2d 1574, 1579 (11th
Cir.1987) ( “Materiality is a function of the strength of the
government's case.... In Giglio, the weakness of the government's case
played an important role in the Supreme Court's decision.”). Although
Weldon was a key State witness, her testimony was supported by Porter's
equally important testimony, along with that of Dominick and Williams,
as well as physical evidence in the form of the body, the earrings, the
bank cards, the shotgun, and the wadding. Further, the jury knew of
Weldon's immunity for the case at hand, in which she played a
significant accomplice's role in a multi-hour kidnapping, beating,
robbery, rape, and murder. During his closing argument, the defense
counsel stated:
Now, [Weldon]'s gone in and said I want to tell you
all this and the State says well, we're not going to prosecute you. Why?
Wasn't she involved? Wasn't she there? By her own admission? Didn't she
sell the earrings? Didn't she see Mr. Porter rape poor Julie Love[?] ...
So, it was not just brought out to the jury, but also stressed, that
Weldon had gained a great deal from her testimony against Hammond.
As for her immunity in the Turner and Ellen cases,
Weldon's testimony about them was minimal. She testified only briefly
about the crimes against Ellen. She did not testify at all about the
Turner incident, which was brought up by the defense and never mentioned
by the prosecution.FN8 Finally, there is no evidence that Weldon's
immunity in the Turner and Ellen cases stemmed from her agreement to
testify against Hammond in the Love case; it is just as likely that any
immunity she received for those cases was negotiated in return for her
telling the police what she knew about those crimes.
FN8. The Turner murder was not a part of the
prosecution's case against Hammond at all. Weldon had given an unsworn
videotaped statement to police, which the defense later insisted on
playing during the trial. After the tape was played, the judge said:
“Well, the only information that the jury has about [the Turner murder]
is what they've learned from the videotape that you insisted be played
to the jury. Defense counsel: Yes, Your Honor. Court: So I don't
recollect the State introducing any evidence of testimony concerning
that matter or mentioning it in opening statement at all.” The court
then rejected defense counsel's request to offer further evidence
related to the Turner murder; the court refused to allow the defense to
deflect the focus of the trial onto a different, uncharged murder.
Central to this materiality question is the fact that
the jury knew Weldon was receiving a get out of jail free card in
exchange for testifying against Hammond in the Love case. The jury knew
that she had a powerful incentive to do the State's bidding and testify
against Hammond. See Alderman v. Zant, 22 F.3d 1541, 1554 (11th
Cir.1994) (“[T]he thrust of Giglio and its progeny has been to ensure
that the jury know the facts that might motivate a witness in giving
testimony.”); Haber v. Wainwright, 756 F.2d 1520, 1524 n. 8 (11th
Cir.1985) (noting that promises of leniency for a State's witness may
create “a greater incentive for the witness to try to make his testimony
pleasing to the prosecutor”) (citation omitted). Because of the strength
of the case against Hammond, and because the jury already knew of
Weldon's immunity for all the crimes against Julie Love, we cannot say
that the fact she received immunity in the Turner case (about which she
did not actually testify) and in Ellen's case (about which there are
only suspicions, not direct evidence, that she was involved) weighs
heavily in the materiality scale. It certainly is not material by itself.
Of course, we will consider this evidence along with the other
suppressed evidence at the cumulative materiality stage.
D.
Hammond claims that the State failed to disclose the results of the
GBI's forensic tests. Before the trial the GBI had tested the interior
of Hammond's Cutlass for blood. The test result stated: “Examination of
the interior of the car (item 17) and piece of upholstery (item 32)
fails to reveal the presence of blood.” According to Hammond, that
evidence suggests that Love was never in Hammond's car and that Turner
was not murdered in the car as Weldon had claimed (on the tape that the
defense played to the jury). The State does not dispute that the
forensic report was suppressed and argues only that it is not material.
As to its “tendency and force,” Kyles, 514 U.S. at 437 n. 10, 115
S.Ct. at 1567 n. 10, Porter testified that when Hammond threw Love into
the back seat and beat her, he hit her only in the center of her back
and used only the side of the barrel of his shotgun. Porter testified
that there was no blood. Thus, a test result showing no blood on the
upholstery of Hammond's car is consistent with Porter's testimony. The
test result has little or no value as evidence for the defense.
As for Gwendale Turner, Weldon stated in her taped police interview
that Hammond had taken the car to a carwash to get the blood out. And
the car was not examined for a full year after the shooting. Beyond that,
the Turner murder was not part of the State's evidence against Hammond.
The only reason the Turner murder came up was that the defense chose to
play the tape of Weldon's description of the killing. No one was on
trial for killing Turner, and even if the forensic evidence tended to
disprove Weldon's version of Turner's death, it was nothing more than
impeachment evidence on a collateral matter. See generally Fed.R.Evid.
608 (forbidding impeachment by extrinsic evidence on collateral matters).
Insofar as this evidence cast doubt on whether Hammond murdered Turner
in the way Weldon described it in the tape recording, it would have done
the defense little good in this case.
For these reasons, the suppressed evidence of the negative blood
tests is not material by itself but will be considered at the cumulative
materiality stage.
E.
Hammond claims that the State failed to disclose
evidence that a serial killer, James Richard Conner, had confessed to
killing Julie Love and passed a polygraph examination about it. Conner
told the police that he and another man had kidnapped and killed a woman
he believed was Julie Love. He claimed that they had shot Love with a
.38 caliber pistol and then dumped her body into a stream bed on a
county line near Lake Hartwell. Conner told police all of this in April
1989, and a search and excavation of the area where Conner said he had
left the body turned up nothing.
The State does not dispute that Conner's confession
was suppressed but instead argues that because the statements were
demonstrably false, failing to disclose them did not violate Brady.
Assuming otherwise, we evaluate the statement for materiality.
As to the “tendency and force” of Conner's confession,
see Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1567 n. 10, it is obvious
that Conner was wrong about having participated in the murder of Julie
Love. He was completely wrong about every important fact that he shared
with police. Forensic analysis of Love's remains suggested that she was
shot not with a .38 as Conner said, but instead with a shotgun, as
Porter testified. Her body was dumped not in a stream bed on the county
line near Lake Hartwell, as Conner said, but instead on a trash pile in
a different part of Atlanta, where Porter led police. That Porter was
able to take police to the body, and Conner was not, proves that Porter
knew what he was talking about while Conner did not. As the district
court properly found, “there is no credibility to Conner's story.”
District Court Order, at 73.
The bald assertion that someone else confessed to
killing Love can be favorable to the defense. But a demonstrably false
confession such as Conner's probably is not. Even assuming it is
“favorable” for Brady purposes it is only barely so and is of negligible
weight in the materiality scale. Cf. Smith, 572 F.3d at 1344 (finding
that a police report “was favorable to [the petitioner], although barely
... [and] evidence of it should be considered in the cumulative
materiality analysis, even though it will not help [the petitioner] much”).
We will consider it for what little weight it has at the cumulative
materiality stage.
F.
Hammond claims that the State failed to disclose
evidence casting suspicion on Julie Love's boyfriend, Mark Kaplan.
Hammond alleges that police knew that Kaplan's alibi for the night of
Love's disappearance was false, that he had been seen siphoning gas from
Love's car, had been sexually involved with other women, had later
discouraged investigative efforts, and had lied to police when he said
that he and Love were engaged and that she often ran out of gas.
Although the State does not dispute that certain
information along these lines was not disclosed, the district court
correctly found that Hammond overstated it. District Court Order, at 74.
The record, as cited by Hammond, does not support his allegation that
Kaplan was not engaged to Love and that he was sexually involved with
other women at the time. Nor does it show that he tried to subvert the
police investigation into Love's disappearance. Nor does it show that he
lied when he said that Love often ran out of gas; in fact, another
friend of Love's told police that a neighbor had driven Love to the gas
station twice before.
As for the gas siphoning, that allegation rests
entirely on an anonymous tip phoned in to a television station a month
after Love disappeared; it was evidently never substantiated by the
police. For all the record shows, it could have been phoned in by one of
Hammond's friends or family members. Anonymous tips are not admissible
into evidence to prove the truth of the matter stated in the tip. See,
e.g., Miles v. Burris, 54 F.3d 284, 288 (7th Cir.1995) (holding that a
witness' “testimony about the content of the anonymous tip was
inadmissible hearsay”). As for Kaplan's alibi being “false,” the truth
is that the gym where Kaplan said he had been the night Julie Love
disappeared simply did not have a record of his being there.
Assuming that all of these allegations of information
about Kaplan are “favorable” to the defense in the Brady sense, they
have little “tendency and force” to help the defense. See Kyles, 514 U.S.
at 437 n. 10, 115 S.Ct. at 1567 n. 10. Some of the alleged information
is not supported by the record cites that Hammond provides for it, some
of it, like the anonymous tip, is not trustworthy in the least, and the
rest of it does not amount to much. Overwhelming evidence connects
Weldon and Porter, and through them Hammond, to the crime. And there is
no evidence suggesting that Kaplan has any connection to Weldon or
Porter. The alleged information about Kaplan is not entitled to much
weight when we get to the cumulative materiality stage. See Smith, 572
F.3d at 1344.
G.
Six Brady claims have reached the cumulative
materiality stage. They are: (1) an inconsistency between Porter and
Weldon's stories as to who removed Love's earrings; (2) Chris Fagin's
statements implicating Weldon as a participant in the murder of Gwendale
Turner, although Weldon already had implicated herself in it by her own
taped statement, which the jury heard; (3) Weldon's receipt of immunity
for the Ellen and Turner crimes, in addition to her immunity for the
Love murder, which the jury knew about; (4) the forensic report that
showed no blood in Hammond's car more than a year after the Love murder;
(5) the demonstrably false confession of a serial killer; and (6) a
collection of miscellaneous information that supposedly casts suspicion
on Mark Kaplan.
Our task is to consider the aggregate effect of all
of that undisclosed evidence and compare it to the inculpatory evidence
presented at trial. Smith, 572 F.3d at 1347 (discussing balancing the
weight of evidence favoring the prosecution with the new weight of
evidence favoring the defense). In that manner we decide whether our
confidence in the guilty verdict is undermined-whether there is a
reasonable probability that, given the exculpatory or impeaching
evidence, a jury would have acquitted Hammond. Id. (citing Kyles, 514
U.S. at 453, 115 S.Ct. at 1575). “Of course, the stronger the evidence
of guilt to begin with, the more favorable to the defense the
undisclosed evidence will have to be to create a reasonable probability
that a jury would have acquitted had the evidence been disclosed.” Smith,
572 F.3d at 1347.
The evidence against Hammond was powerful. At oral
argument even Hammond's present counsel admitted that the evidence
presented against him was “extraordinarily strong” and added that she
did “not believe there is an attorney in Georgia who would say that that
was a weak case of guilt.” That is an understatement. We agree with the
state trial court and the district court, both of which characterized
the evidence against Hammond as “overwhelming.” Hammond II, 452 S.E.2d
at 748 (quoting the trial court); District Court Order at 76-77.
Weldon and Porter told appropriately congruent
stories. Their stories checked out-the bank cards had been found where
Porter said the bank machines swallowed them; Love's earrings were found
through the pawn shop where Weldon said she had sold them. Both Weldon
and Porter described Hammond as carrying a sawed-off shotgun that night,
and Porter said it was the weapon Hammond used to kill Love; the wadding
found by Love's body was fired from a sawed-off shotgun. Porter led
police to the area where they found the body. They knew that Love had
been shot in the head, execution style. It is undeniable that Porter and
Weldon were involved in the crime, as they testified that they and
Hammond were.
There was also plenty of additional, separate
evidence that corroborated Porter's and Weldon's stories and pointed to
Hammond as the ringleader. One surviving woman, Trinh, whose story was
similar enough to Love's to be admissible against Hammond, told how he
had kidnapped, assaulted, and robbed her. Hammond openly admitted that
he had been involved in two different abductions of women and had gone
to prison for one of them. Another woman, Ellen, testified that Hammond
had robbed, raped, stabbed, and left her for dead in the same area where
Love's body was later found and just two months before Love disappeared.
Michael Dominick testified that Hammond sold him a
sawed-off 12-gauge shotgun around the time of Love's disappearance;
Porter identified that gun as the one Hammond had used to kill Love; and
the wadding found with her body came from a 12-gauge, sawed-off shotgun.
Phillip Williams also testified that Hammond, while in jail later for
assaulting Weldon, tried to pay him to kill Weldon because she knew too
much.
Against this mountain of inculpatory evidence, we
weigh the cumulative impact of the undisclosed evidence favorable to the
defense to decide whether our confidence in the guilty verdict is
undermined. Smith, 572 F.3d at 1347. There are three basic categories of
that suppressed evidence: evidence impeaching Weldon, evidence of other
perpetrators, and forensic evidence. We will look at the impact of each
category and then combine those impacts.
Weldon could have been impeached in some small
measure by the inconsistency about how she came to have Julie Love's
earrings, and the fact that she had received immunity beyond her serious
crimes against Love, and possibly even by Fagin's statement about the
Turner murder, which was not a part of the State's case against Hammond.
But that is not much impeachment in light of all the evidence and given
all the corroboration of Weldon's damning testimony against Hammond.
Fagin's statement, and perhaps the immunity she
received for her participation in other crimes, does show that Weldon is
a criminal. But that fact was glaringly apparent to anyone who sat
through the trial. Hammond's counsel presented testimony that Weldon,
who was a stripper, had sold a sawed-off shotgun to a drug dealer for
five rocks of crack cocaine. Weldon herself admitted that she had known
about the crimes against Ellen, which she and Hammond believed had been
a murder, yet she had done nothing about it. In a taped statement she
admitted a role in the robbery and murder of Gwendale Turner; she told
of luring him into a robbery which led to his murder by Hammond. Weldon
admitted that she had driven the car during the Love kidnapping, and for
hours had served as one of Love's captors. She did nothing to help Love
escape from what she knew was likely to be death at Hammond's hands. She
admitted rifling through Love's purse, robbing her, and standing by
while Porter raped her. She admitted that she sold Love's earrings. She
admitted that she never would have turned in Hammond but for the
realization that he was going to kill her too.
Everyone knew Weldon was bad. The jury knew she had
participated in violent crimes before. The jury knew she had received
immunity for the kidnapping, robbery, and murder of Julie Love. The jury
knew she had been paid for her testimony. The additional details that
would have been provided by the undisclosed evidence about the earrings,
Fagin's statement concerning Weldon's role in the Turner murder, and the
immunity she received for other crimes, for which no one had been
charged, would have been raindrops in the waterfall of evil surrounding
Weldon.
The second category of evidence-that which Hammond
contends points to other people as Love's possible killers-consists of
Conner's false confession and the miscellaneous information relating to
Mark Kaplan. This evidence, if it can be called that, has little or no
weight to contribute to the aggregate consideration for the reasons we
have already discussed. See supra at 1320-21. Moreover, it is
unconnected to any feasible defense theory. This case was a
straightforward instance of two admitted accomplices in a heinous murder
coming forward to confess their own involvement and turning State's
evidence against the alleged principal murderer, all coupled with
evidence corroborating their testimony. Given all that Weldon and Porter
knew about the crime, including where Love's body had been left and
where her earrings had been sold, Hammond's only feasible defense was
that Porter and Weldon had committed the crime without his knowledge and
had decided to frame him. The false confession by Conner and the
miscellaneous information relating to Kaplan do not connect to that
defense and therefore would not have supported it.
The third category of suppressed evidence involves
the lack of blood in Hammond's car when it was examined more than a year
after the Love and Turner murders. Though this is exculpatory evidence
and it does have some weight, its impact in this case is substantially
undermined by the fact that Porter testified Love had not bled in the
car and by the delay in the examination.
Against all of that evidence, we weigh the
inculpatory evidence-the corroborated parts of Weldon's testimony,
Porter's testimony, Williams' and Dominick's testimony, Hammond's
previous similar acts, the sawed-off shotgun, and the sale of the
earrings. Our confidence in the guilty verdict and the sentence of death
against Hammond is intact. It has not been undermined. Therefore, the
suppressed evidence is not cumulatively material. The district court
correctly rejected Hammond's Brady claims.
Next, Hammond claims that the prosecutor made five improper
remarks during the closing argument at the sentencing phase of his trial.
FN9 The Supreme Court has held that a death sentence can be rendered
unconstitutional if the prosecutor's comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471,
91 L.Ed.2d 144 (1986); Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct.
2597, 2608, 115 L.Ed.2d 720 (1991) (stating that the same due process
standard of fundamental fairness exists at the sentencing phase of a
capital trial); see also Romine v. Head, 253 F.3d 1349, 1366 (11th
Cir.2001) (“[H]abeas relief is due to be granted for improper
prosecutorial argument at sentencing only where there has been a
violation of due process, and that occurs if, but only if, the improper
argument rendered the sentencing stage trial fundamentally unfair.”).
FN9. Specifically, Hammond now complains about the
prosecutor telling the jury: that Hammond “didn't even have the guts to
face you during this part of the trial”; that he had shown no signs of
religious conversion or remorse and had “violated the law of God. Thou
shalt not kill.... An eye for an eye, a tooth for a tooth, a life for a
life”; that it would be unfair for Hammond “to be in prison for life and
have the taxpayers house, feed, clothe him with the tax dollars of Julie
Love's friends and family ...”; that he had been a “predator [ ] out
there on the streets roaming, looking for prey. Just like a vicious wild
animal roams the jungle looking for a weaker specimen to pounce upon.”;
and that Love would rest easier in her grave if Hammond were executed.
That is what Hammond claims-his death sentence
violated due process because some of the prosecutor's remarks during
closing argument rendered the sentencing process fundamentally unfair.
During the sentencing stage itself Hammond failed to object to all but
one of those remarks;FN10 his objection to that one remark was sustained
and the court instructed the jury to disregard the remark, and it denied
his motion for a mistrial. During his direct appeal Hammond did not
raise an issue about that or any of the other prosecutorial remarks he
now contends violated due process. The Georgia Supreme Court rejected
all of the contentions that Hammond did raise on direct appeal. It did,
however, remand the case for the trial court to address whether
Hammond's counsel had rendered ineffective assistance, an issue raised
by the Court itself. Hammond I, 398 S.E.2d at 175. One Justice dissented
from the remand on the ground that it was a waste of time. He explained:
“The evidence of aggravation in this case was so strong, this appellant
is so dangerous, his criminal history is so lengthy, and his crime was
so monstrous that it is difficult to understand how the remote
possibility of a defect in representation could have materially affected
the outcome of the trial.” Id. at 179 (Smith, J., dissenting).
FN10. The one of these prosecutorial remarks Hammond
did object to at trial is the one about his failure to testify during
the sentencing stage.
On remand Hammond complained about a slew of the
prosecutor's statements, but not as an independent due process claim.
Instead, he raised those statements and his trial counsel's failure to
object to them in the context of an ineffective assistance of counsel
claim. As Hammond's new counsel understood, the remand was limited to
whether trial counsel had rendered effective assistance. See Hammond II,
452 S.E.2d at 754 (“This case was remanded to the trial court solely to
resolve the issue of ineffective assistance of counsel. Hammond
correctly acknowledges that the additional issues he now wishes to raise
may not be considered in this proceeding.”) (internal citation omitted).
For that reason, when the trial court addressed the
claim on remand, it decided it as an ineffective assistance of counsel
claim. See Remand Order at 60 (“The Court finds that the brief 18 pages
of closing argument by the prosecutor in this case did not render the
sentencing proceeding fundamentally unfair. In conclusion, [defense
trial counsel] was not ineffective in any manner during the sentencing
phase.”). Reviewing that judgment, the Georgia Supreme Court handled the
claim the same way, stating that although certain parts of the
prosecutor's statement were improper, “after reviewing the entire
sentencing phase of [the] trial, we conclude that these remarks neither
changed the result of the sentencing trial nor rendered it fundamentally
unfair. Therefore, Hammond has failed to establish ineffective
assistance of trial counsel with regard to this claim.” Hammond II, 452
S.E.2d at 753 (internal citations omitted).
In this federal habeas proceeding Hammond continued
his ineffective assistance of counsel approach to attacking the
prosecutor's sentencing stage remarks. The district court, however, held
that the state courts' rejection of that ineffective assistance claim
was not contrary to or an unreasonable application of clearly
established federal law as determined by the Supreme Court. See 28 U.S.C.
§ 2254(d)(1). In his appeal to us from the district court's judgment,
however, Hammond has dropped his ineffective assistance claim about the
failure to object to the remarks and instead claims that the
prosecutor's remarks violated due process.
The problem for Hammond is that this due process
claim is procedurally barred. See State Habeas Order at 4 (“Georgia law
requires that errors or deficiencies in the trial be objected to at
trial and pursued on appeal if possible or they will be deemed waived.”).
Hammond did not raise this claim as a due process claim at trial or on
direct appeal. Ineffective assistance of counsel can be cause to excuse
a procedural default. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct.
2639, 2645, 91 L.Ed.2d 397 (1986) (“Ineffective assistance of counsel,
then, is cause for a procedural default.”). But Hammond does not argue
that to us. He does not argue that the Georgia courts unreasonably
applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), when they held that his counsel did not render ineffective
assistance by failing to object to the prosecutorial remarks, or by
failing to raise the due process claim involving them on direct appeal.
Hammond's straight-up due process claims are barred.
VI.
Hammond claims that his Sixth Amendment right to
counsel was violated by his trial counsel's constitutionally ineffective
performance as measured under Strickland, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674. He argues that his trial counsel was ineffective for:
(1) failing to investigate mental health evidence and present it as
mitigating circumstances; (2) introducing a videotape that suggested
Hammond had committed a separate, uncharged murder; and (3) failing to
move for a mistrial of the sentencing phase even though Hammond had a
right to one under a Georgia statute because the prosecutor made an
argument about parole eligibility.FN11
FN11. Hammond also appears to argue that his trial
counsel erroneously advised him not to accept a plea offer from the
prosecution. But Hammond offers no citation to any part of the record
that supports this assertion. See Fed. R.App. P. 28(a)(9)(A) (requiring
“citations to the authorities and parts of the record on which the
appellant relies”).
Further, when Hammond made the plea offer argument to
the Georgia Supreme Court in 1994, that court held that “[t]he record
does not show that present counsel raised this issue below,” and added
that in any case, the claim was “based solely on conjecture,” and
counsel's behavior did not fall outside “the wide range of reasonable
professional assistance.” Hammond II, 452 S.E.2d at 751. Accordingly,
this claim is procedurally barred because it was not raised in the trial
court when that court was considering the ineffective assistance claims.
See Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.1994) (“[W]here a
state court has ruled in the alternative, addressing both the
independent state procedural ground and the merits of the federal claim,
the federal court should apply the state procedural bar and decline to
reach the merits of the claim.” (citing Harris v. Reed, 489 U.S. 255,
264 n. 10, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989))). Hammond
has made no effort to explain to us why this procedural bar does not
apply. Indeed, he has hardly made any argument at all about his
counsel's advice to him concerning an alleged plea offer.
Under Strickland Hammond must make two showings.
First, he must show that his counsel's performance was deficient, which
means that it “fell below an objective standard of reasonableness” and
was “outside the wide range of professionally competent assistance.” Id.
at 688, 690, 104 S.Ct. at 2064, 2066; see also Smith, 572 F.3d at 1349.
In deciding whether trial counsel performed deficiently, courts are to
review his actions in a “highly deferential” manner and “must indulge a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104
S.Ct. at 2065. To overcome Strickland's presumption of reasonableness,
Hammond must show that “no competent counsel would have taken the action
that his counsel did take.” Chandler v. United States, 218 F.3d 1305,
1315 (11th Cir.2000) (en banc); Stewart v. Sec'y, Dep't of Corr., 476
F.3d 1193, 1209 (11th Cir.2007) (“Based on this strong presumption of
competent assistance, the petitioner's burden of persuasion is a heavy
one: ‘petitioner must establish that no competent counsel would have
taken the action that his counsel did take.’ ” (quoting Chandler)).FN12
FN12. An industrious effort on behalf of his client
on other fronts does not bar a claim that trial counsel rendered
ineffective assistance in one or more specific ways. Jefferson v. Hall,
570 F.3d 1283, 1314 (11th Cir.2009) (Carnes, J., dissenting) (“Adequate,
or even stellar, performance in regard to one aspect of the trial does
not bar a conclusion that counsel performed ineffectively in another
regard.”). Still, it is worth noting that even though the evidence was
overwhelming that Hammond committed a horrific crime against an innocent
young woman, this is not one of those cases where counsel failed to make
much effort. He worked hard for his client. See Remand Order at 7-31 (cataloging
and discussing counsel's pretrial effort and actions).
Second, under Strickland Hammond must also show that,
but for his counsel's deficient performance, there is a reasonable
probability that the result of the proceeding would have been different-that
is, our confidence in the outcome must be undermined by counsel's
deficient performance. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
At least, that is the standard where the deficient performance resulted
in the impairment of some federal right. See Part VI.D.3, below.
Under AEDPA, however, Hammond must do more than
satisfy the Strickland standard. See 28 U.S.C. § 2254(d). Because the
Georgia courts have already rejected these ineffective assistance claims,
Hammond must show that their decision to deny relief on these claims was
an objectively unreasonable application of the Strickland standard. See
Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d
836 (2007) ( “The question under AEDPA is not whether a federal court
believes the state court's determination was incorrect but whether that
determination was unreasonable-a substantially higher threshold.”); Bell
v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914
(2002); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.2004) (“[T]he
AEDPA adds another layer of deference.... [The petitioner] must also
show that in rejecting his ineffective assistance of counsel claim the
state court applied Strickland to the facts of his case in an
objectively unreasonable manner.”) (internal quotation marks and
citation omitted).
A.
Hammond claims that his trial counsel was ineffective
for failing to more diligently seek out mitigating evidence about his
mental competency and intelligence. Although counsel hired a
psychiatrist and psychologist to examine him, Hammond contends that was
not enough. He argues that his counsel failed to have enough contact
with those experts to get the best results from them. He insists that a
more thorough mental health investigation would have resulted in
findings that Hammond had a below-normal IQ, a history of drug use, and
untreated ADHD. Another psychologist, retained by later counsel for
Hammond, stated that Hammond's academic ability is at the third or
fourth grade level and that at a young age he huffed gasoline and was
“scarred” by a sexual experience with a prostitute. Hammond theorizes
that if all of this information had been presented during his sentencing
phase, it would have created a reasonable probability of a life sentence.
As Strickland made clear, whether counsel must seek
out mental or emotional state mitigating evidence, and the lengths to
which he must go in doing so, depends on the individual facts of each
case. See Strickland, 466 U.S. at 673, 699, 104 S.Ct. at 2057, 2070 (finding
it “well within the range of professionally reasonable judgments” for a
defense counsel not to request a psychiatric evaluation after speaking
with the defendant). In a case like this one, where trial counsel did
investigate the defendant's mental state, the deficiency question is
whether his decision not to investigate it further was reasonable. See
id. at 690-91, 104 S.Ct. at 2066; Jefferson v. Hall, 570 F.3d 1283, 1309
(11th Cir.2009) (holding that “Jefferson's counsel were required only to
make a reasonable decision that further investigation into Jefferson's
mental health was unnecessary”) (internal quotation marks omitted).
The Georgia trial court decided that Hammond's
counsel was not deficient for failing to order additional mental health
evaluations or for failing to present as mitigating circumstance
evidence what his experts had found. Remand Order at 26-31, 31 (“If
anything, the record affirmatively shows that Mr. Wehunt was effective
trial counsel [on this issue].”). That decision was supported by a
number of findings, including the fact that: (1) trial counsel “was
successful in obtaining over $8,000 in court funds to retain not only a
noted psychiatrist but also an accomplished forensic psychologist”; (2)
Dr. Cheatham, the forensic psychologist, “interviewed defendant Hammond
extensively, conducted a physical examination of [him], took blood and
urine specimens ... and had the specimens tested”; (3) Dr. Sutton, the
psychologist, met with Hammond twice, reviewed his school and medical
records, and conducted comprehensive intelligence and neuropsychological
tests on him; (4) Dr. Sutton found that Hammond was “at, or slightly
below, average range of intelligence” with an IQ of 83; (5) Dr. Cheatham,
in his own words, failed to find “any significant signs of mental
disease or impairment,” and Dr. Sutton found that Hammond was not
psychotic, though he did have “some personality problems.” Remand Order
at 26-31.
Hammond has not even argued that clear and convincing
evidence contradicts any of those state court factfindings, so they
stand. 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue
made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”); Fugate v. Head, 261 F.3d 1206, 1215
(11th Cir.2001).
The Georgia Supreme Court affirmed the trial court's
rejection of this ineffective assistance of counsel claim. It held both
that the performance of Hammond's trial counsel in investigating mental
health mitigating circumstances was not deficient and also that no
prejudice resulted from his decisions. Hammond II, 452 S.E.2d at 751 (“[T]he
prejudice prong of the Strickland v. Washington test has not been
satisfied ... [and] we cannot conclude that the investigation by and
tactical judgment of Hammond's attorney was outside the wide range of
reasonably effective assistance.”) (internal brackets and citation
omitted). We agree.
Hammond's mental health was investigated. After
examining him, two highly regarded experts, a psychiatrist and a
psychologist, concluded that Hammond had an IQ of 83. They found no
significant signs of mental disease or impairment but instead only
amorphous personality problems like impulsiveness and resentfulness of
authority. Hammond's counsel reasonably decided that those findings were
not helpful and that it was not necessary to dig deeper. About the
reasonableness of counsel's decision, the state trial court noted “[i]t
is arguable that on balance, Dr. Sutton's findings would have done more
harm than good for defendant Hammond.” Remand Order at 29. The Georgia
courts reasonably applied Strickland when they held that Hammond's trial
counsel was not deficient in this area.
B.
Hammond also claims that his trial counsel was
ineffective for showing the jury a video of Weldon's police interview in
which she incriminated herself and Hammond in the Gwendale Turner murder.
Hammond concedes that counsel made a strategic decision to show the
video but contends that it was a foolish one. The state trial court
viewed the decision as a reasonable strategic one, stating that “[t]he
playing of the Weldon tape was trial strategy, not ineffective
assistance of counsel.” Remand Order at 41. The Georgia Supreme Court
agreed, rejecting this claim with the explanation that it was “not the
duty of the courts to second-guess trial counsel's choice of strategy.”
Hammond II, 452 S.E.2d at 750; see also Strickland, 466 U.S. at 690, 104
S.Ct. at 2066.
Hammond's counsel showed the video because he wanted
to impeach Weldon. He wanted to show that she took the business of
murder lightly and would happily make unsubstantiated accusations
against Hammond. He wanted to show that Weldon would blame Hammond for
anything. And counsel had done his legwork: he had investigated the
Turner murder himself and had found photos of the victim contradicting
Weldon's account. Tr. at 428 (“[Counsel]: I want [the State] to
introduce the photograph, Judge, because that photograph clearly
indicates that the man was shot from the front.... Your Honor, I'm ready.
I knew what was in the tape. I've seen the pictures. I've done all my
homework and ... I think this witness has pretty well impeached herself....”).FN13
FN13. Hammond also argues that his trial counsel
incompetently handled the video tape in part because he referred to the
victim Turner as “Fanulanu or whatever his name was.” In fact, “FNU-LNU”
stands for “first name unknown, last name unknown.” We do not see how
that makes any difference. The remark was made when no one was using
Turner's name because no one was sure who the victim was. It appears
that counsel had researched possible murders and murder victims that
Weldon may have been referring to on the tape and found no bodies that
matched her description of that killing. The body that the prosecution
believed was the right one-that of Turner, apparently-had been shot in
the front, not in the back of the head, contrary to Weldon's story.
After playing the tape, counsel requested and
received a limiting instruction from the judge, who charged the jury
that the tape was to be considered for impeachment purposes only.
Counsel repeatedly confirmed that he had conferred with Hammond about
playing the tape.FN14 The court asked Hammond if he “concur[red] with
the strategy and tactics ... of [his] attorney in playing the tape for
the benefit of the jury,” and Hammond answered that he did. Tr. at
432-33.
FN14. Tr. at 426 (“Court: Did you discuss with Mr.
Hammond the utilization of this? [Counsel]: Yes, sir.”); Tr. at 427
(“Court: Well, my question is, did you discuss with Mr. Hammond, your
client, the playing of this? [Counsel]: I discussed it with him, Judge,
but he had never seen the tape.”); Tr. at 432 (“Court: All right. Did
you discuss the contents of the tape with your client before playing the
tape? [Counsel]: No, Your Honor. I gave him a summary of the contents. I
told him that I intended to use it for the purposes of impeachment.”).
Counsel's strategy was to show a lengthy tape of Weldon in which she
discussed the Love murder somewhat inconsistently with her testimony,
and at the end, glibly accused Hammond of a completely different,
entirely unsubstantiated murder-one in which photos tended to contradict
her account. Counsel had prepared for the State's inevitable attempt to
corroborate Weldon's statements. Either way the trial court ruled, it
would further his strategy.
If, on the one hand, the trial court allowed the
State to corroborate Weldon's story, counsel could rebut that with
photographs that proved Turner had been shot in the front-not in the
back of the head as Weldon claimed. The ensuing dispute would draw the
jury's attention away from the Love murder and toward this other case
for which no one was on trial and for which the State had much weaker
evidence against Hammond. If, on the other hand, the court refused to
allow the State to corroborate Weldon's story, her statement would be
left floating without any corroboration and with the jury instructed to
consider it only for purposes of impeaching her testimony against
Hammond. The court chose the “on the other hand” course, and for all the
jury knew, there was nothing to support Weldon's story that there even
was a dead victim in that other case.
The strategy was bold but Hammond's counsel had done
his homework, he got his limiting instruction, and he had the support
and permission of his client. Those factors bolster the Georgia Supreme
Court's rejection of this ineffective assistance claim. See Strickland,
466 U.S. at 690, 104 S.Ct. at 2066 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable ....”); see also Lobosco v. Thomas, 928
F.2d 1054, 1057 (11th Cir.1991) (holding that, largely because the
defendant concurred in the strategy, it was not ineffective assistance
under Strickland for defense counsel to use his closing argument at the
guilt stage of the trial to concede the defendant's guilt and begin
building a case for mercy based on his contrition); United States v.
Weaver, 882 F.2d 1128, 1140 (7th Cir.1989) (“Where a defendant, fully
informed of the reasonable options before him, agrees to follow a
particular strategy at trial, that strategy cannot later form the basis
of a claim of ineffective assistance of counsel [under Strickland].”);
United States v. Williams, 631 F.2d 198, 204 (3d Cir.1980) (no
ineffective assistance existed because the defendant ultimately
concurred in his trial counsel's tactical decision). Hammond has failed
to convince us that the Georgia Supreme Court's decision on this
ineffective assistance of counsel claim was unreasonable within the
meaning of § 2254(d)(1).
C.
Finally, Hammond claims that his counsel rendered
ineffective assistance by failing to move for a mistrial when, during
his closing argument at the sentencing phase of the trial, the
prosecutor said: “[The defense counsel is] going to tell you to give the
defendant life in prison so that he may be rehabilitated. I urge you,
ladies and gentlemen, to reject that. There is no life without parole in
Georgia. So one day he will be a free man. One day-”. Before the
prosecutor could say anything more, defense counsel interrupted with an
objection, stating that the prosecutor “has no evidence to that effect
and it's improper and I move to instruct the jury that, to strike it.”
The court granted that relief, stating to the jury: “Well, I will
instruct the jury that the comment made by the district attorney with
respect to what may or may not happen upon the imposition of a sentence
by the jury of life imprisonment is improper, incorrect. You will please
disregard his comments in that regard.”
Under Georgia law at the time, if he had not been
sentenced to death Hammond would have been eligible for parole in either
5 or 20 years, and therefore could have been released at age 29 or 44,
depending on whether the sentences imposed for his crimes were made to
run concurrently or consecutively. FN15 Even though Hammond would have
been eligible for parole if the jury had not sentenced him to death, the
action of the judge in sustaining the objection and giving a curative
instruction was correct under state law.
FN15. Hammond was found guilty of murder, kidnapping,
and armed robbery. He was convicted and sentenced to life imprisonment
for the robbery and death for the murder. He was sentenced to 20 years
on the kidnapping conviction. These crimes were committed on July 11,
1988, so the provisions of the Georgia Code in effect at that time
control. Hahn v. State, 166 Ga.App. 71, 303 S.E.2d 299, 301 (1983)
(holding that “the only statute under which appellants could be
constitutionally sentenced ... was that which was in effect at the time
the crime was actually committed”).
If Hammond had received two concurrent life sentences,
instead of the death sentence, section 42-9-45 of the Georgia Code would
have applied. Prior to its amendment in 1994, that section provided in
relevant part: An inmate serving a felony sentence or felony sentences
shall only be eligible for consideration for parole after the expiration
of nine months of his sentence or one-third of the time of the sentences,
whichever is greater. Inmates serving sentences aggregating 21 years or
more shall become eligible for consideration for parole upon completion
of the service of seven years. Ga.Code Ann. § 42-9-45(b) (1988), amended
by 1994 Ga. Laws 1959, § 15 (1994).
This provision purportedly requires defendants
serving sentences of 21 years or more, which includes life sentences, to
serve 7 years before becoming eligible for parole. See id. In Charron v.
State Board of Pardons & Paroles, 253 Ga. 274, 319 S.E.2d 453 (1984),
however, the Georgia Supreme Court construed § 42-9-45(b) as precatory
rather than mandatory, thus avoiding its invalidation on state
constitutional grounds. Id. at 455. Thus, Hammond would not have been
required by statute to serve any particular duration of two concurrent
sentences (or one life sentence) before becoming eligible for parole.
Indeed, we have noted that “between 1983 and 1991, the Board, to
alleviate prison overcrowding, chose not to comply fully with §
42-9-45(b).” Jones v. Ga. State Bd. of Pardons & Paroles, 59 F.3d 1145,
1147 (11th Cir.1995). Under the Georgia Constitution, however, Hammond
would have had to serve 5 years of his armed robbery sentence before
becoming eligible for parole. See Ga. Const. art. IV, § II, ¶ II(b),
amended by 1994 Ga. Laws 2015 (1994) (“When a person is convicted of
armed robbery, the board shall not have the authority to consider such
person for pardon or parole until such person has served at least five
years in the penitentiary.”). Thus, if Hammond had received concurrent
life sentences for the armed robbery and murder, he would have been
required to serve 5 years. Based on his age (24) at the time of the
trial, he would have been 29 years old when he became eligible for
parole. The same is true if he had just received one life sentence.
The result would have been different if Hammond had
received two consecutive life sentences. In that scenario, section
42-9-39 of the Georgia Code would have applied. That section imposes
restrictions on the parole eligibility of defendants receiving certain
life sentences. Subsection (c) governs when a defendant receives
consecutive life sentences and one of the life sentences is imposed for
the crime of murder. In 1988, section 42-9-39(c) provided: When a person
receives consecutive life sentences as the result of offenses occurring
in the same series of acts and any one of the life sentences is imposed
for the crime of murder, such person shall serve consecutive ten-year
periods for each such sentence, up to a maximum of 30 years, before
being eligible for parole consideration. Ga.Code Ann. § 42-9-39(c)
(1988), amended by 2006 Ga. Laws 379, § 27 (2006).
This provision did not face the same constitutional
limitations as § 42-9-45(b) because the Georgia Constitution empowered
the General Assembly to “prescribe the terms and conditions for the
board's granting a pardon or parole to ... [a]ny person who has received
consecutive life sentences as the result of offenses occurring during
the same series of acts.” Ga. Const. art. IV, § II, ¶ II(c) (emphasis
added). Thus, if Hammond had received consecutive life sentences for the
armed robbery and murder, he would have been required to serve 10 years
for each life sentence, making him eligible for parole in 20 years-when
he was 44 years old. See also Davis v. State, 255 Ga. 598, 340 S.E.2d
869, 884 (1986) (noting that defendant receiving consecutive life
sentences for murder and armed robbery would have to serve 20 years
before being eligible for parole under the pre-amendment version of §
42-9-39(c)). Georgia law not only forbade any argument based on parole
eligibility, it provided the defendant with the option of a mistrial if
such an argument was made: (a) No attorney at law in a criminal case
shall argue to ... the jury that a defendant, if convicted, may not be
required to suffer the full penalty imposed by the court or jury because
pardon, parole, or clemency of any nature may be granted.... (b) [If
such argument is made] opposing counsel shall have the right immediately
to request the court to declare a mistrial, in which case it shall be
mandatory upon the court to declare a mistrial. Failure to declare a
mistrial shall constitute reversible error. O.C.G.A. § 17-8-76. When
asked later why he did not ask for a mistrial Hammond's counsel stated
that he was “afraid that [he] just let it slip by.” He said that “I was
not aware at that particular time of the code section that you have
reference to.” Remand Order at 57 (quoting counsel).
Counsel did, however, become aware of § 17-8-76
before the time for filing a motion for a new trial expired. He read the
relevant case law, he talked to other attorneys about it, and he made a
conscious strategic decision not to file a motion seeking a new trial of
the sentencing stage. See Remand Order at 58-59 (quoting counsel: “So as
a result of that and after hours and hours of deliberation over it, I
finally took it up on direct appeal and did not file a motion for a new
trial.”). It is probably just as well that counsel did not file a motion
for new trial because Georgia law appears to preclude granting a new
trial on § 17-8-76 grounds after the sentencing phase is over. See
Greene v. State, 266 Ga. 439, 469 S.E.2d 129, 139 (1996), rev'd on other
grounds, 519 U.S. 145, 117 S.Ct. 578, 136 L.Ed.2d 507 (1996); Phillips
v. State, 176 Ga.App. 834, 338 S.E.2d 57, 58-59 (1985).
Counsel raised the prosecutor's parole eligibility
argument on direct appeal. The Georgia Supreme Court agreed that the
prosecutor's remark about parole eligibility was improper under O.C.G.A.
§ 17-8-76(a), but it held that the trial court was not required to grant
a mistrial on its own motion and did not err in giving the curative
instruction Hammond had requested instead. Hammond I, 398 S.E.2d at 175
(“Our Code does not require that a mistrial be declared even without a
request, and the trial court did not err by granting only the relief [a
curative instruction] sought by the defendant....”).
1.
What all of this boils down to is the question of
whether it was ineffective assistance of counsel for Hammond's counsel
not to assert his state statutory right to a mistrial of the sentence
proceeding at the time of the prosecutor's parole comment, a time before
the sentence verdict was known. Because the state trial court and the
state supreme court rejected this ineffective assistance of counsel
claim on different grounds, we must first decide whether we defer under
§ 2254(d)(1) to the state trial court decision, the state supreme court
decision, or both.
The trial court on collateral review held that
counsel's failure to move for a mistrial was not deficient performance
and, given that, it decided not to address the prejudice element. See
Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (“[T]here is no reason
for a court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.”).
The Georgia Supreme Court resolved the issue by
coming at it from the other direction. It held that Hammond had failed
to show prejudice and, given that, it decided not to address the
performance element. Hammond II, 452 S.E.2d at 749 (“We need not decide
whether in failing to move for a mistrial trial counsel's performance
was deficient, because we conclude that this error did not undermine the
reliability of the result of the sentencing trial.”); see Strickland 466
U.S. at 697, 104 S.Ct. at 2069 (“[A] court need not determine whether
counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”). In
deciding the prejudice issue against Hammond, the Georgia Supreme Court
acknowledged that a request for a mistrial would have led to a different
jury determining his sentence, but it concluded that “Hammond has not
met his burden of showing that had a motion for mistrial been made ‘the
[sentencing] decision reached would reasonably likely have been
different.’ ” Hammond II, 452 S.E.2d at 750 (quoting Strickland). In
explaining that conclusion, the court pointed to the overwhelming
evidence of guilt and of aggravating circumstances as well as the fact
that “the trial court instructed the jury that the prosecutor's
statement was incorrect, improper, and should be disregarded.” Id. at
749-50.
Hammond takes the position that by skipping to the
prejudice element, the Georgia Supreme Court rejected the trial court's
holding that Hammond had failed to establish the performance deficiency
element. If that were so, the only decision meriting any deference under
§ 2254(d)(1) would be the Georgia Supreme Court's decision on the
prejudice issue and we would address the performance issue de novo. But
it is not so.
The Georgia Supreme Court did not express any
disapproval of the trial court's decision on the deficient performance
element. Recognizing that, Hammond argues that a state appellate court
decision on one element of the ineffective assistance issue
automatically erases the trial court's decision on the other element. He
cites no authority for that proposition, and there are decisions that
guide us away from it.
In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003), the state trial court and state court of appeals
both rejected a petitioner's Strickland claim on the deficiency element.
Neither court discussed the prejudice element. The Supreme Court found
that the state courts' decision on the deficiency element was an
unreasonable application of Strickland. Id. at 527, 123 S.Ct. at 2538.
The Court then turned to the prejudice element and stated: “In assessing
prejudice ... our review is not circumscribed by a state court
conclusion with respect to prejudice, as neither of the state courts
below reached this prong of the Strickland analysis.” Id. at 534, 123
S.Ct. at 2542 (emphasis added). The implication from Wiggins is that had
either of the state courts reached the other prong, its decision would
have been entitled to deference under § 2254(d)(1). See also Cone v.
Bell, --- U.S. ----, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009) (noting
that the reason AEDPA deference was not due is that “the Tennessee
courts” did not reach the merits of the claim); cf. Hannon v. Sec'y,
Dep't of Corrs., 562 F.3d 1146, 1150 (11th Cir.2009) (noting that
AEDPA's deference to the factfindings of state courts “applies to fact
findings made by both state trial courts and state appellate courts”).
There is also the fact the Strickland opinion itself
actually urges courts to decide ineffective assistance claims on the
prejudice element if that is easier. The Supreme Court said: “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course
should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. The
Supreme Court of Georgia quoted that directive from Strickland in its
opinion. See Hammond II, 452 S.E.2d at 750 n. 1. Under the circumstances,
all we can infer from the Georgia Supreme Court's decision to resolve
this ineffective assistance claim on the prejudice element is that it
believed that was the easier route. We cannot conclude that it disagreed
with or meant to discredit the different route the trial court took to
the same destination.
Section 2254(d) speaks of deference to the “decision”
that resulted from “the adjudication of the claim.” The adjudication of
this claim in the Georgia courts resulted in a decision that Hammond had
not been denied effective assistance of counsel. Two reasons were given
by the Georgia courts, one at each level of review. In deciding to give
deference to both decisions, the critical fact to us is that the Georgia
Supreme Court does not appear to have disagreed with the trial court's
decision on the deficiency element. The court could have easily
expressed its disagreement, if any, but it did not do so. Or it could
have cautioned that its decision was not to be read as implicitly
agreeing with the trial court, but it did not do so. Cf. State v. Spence,
179 Ga.App. 750, 347 S.E.2d 612, 615 (1986) (“Finally, our decision in
the present case should not be interpreted as....”); Allied Products Co.
v. Green, 175 Ga.App. 802, 334 S.E.2d 389, 390 (1985) (“Our decision in
these cases is in no way to be interpreted as....”); Berman v. Rubin,
138 Ga.App. 849, 227 S.E.2d 802, 806 (1976) (“Our decision should not be
read to state or imply that....”). The Georgia courts, considered
collectively, gave two consistent reasons for deciding against this
claim. Each reason is due deference.
This conclusion is consistent with, indeed required
by, the implicit holding of our recent decision in Windom v. Secretary,
Department of Corrections, 578 F.3d 1227 (11th Cir.2009). In that case
the Georgia trial court rejected an ineffective assistance of counsel
claim for lack of prejudice. Id. at 1249-50. The Georgia Supreme Court
affirmed, but it did so on performance grounds without reaching the
prejudice issue. Id. at 1249 n. 12. In that mixed-ruling circumstance,
we granted AEDPA deference to the state trial court's prejudice holding,
even though the Georgia Supreme Court did not reach it. Id. at 1249-51.
We now make explicit the implicit holding in Windom: where a state trial
court rejects a claim on one prong of the ineffective assistance of
counsel test and the state supreme court, without disapproving that
holding, affirms on the other prong, both of those state court decisions
are due AEDPA deference. Unless both reasons for rejecting the claim are
“contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” 28 U.S.C.
§ 2254(d)(1), the ineffective assistance of counsel claim is due to be
rejected.
2.
We turn now to the deficient performance element of
this ineffective assistance claim. Hammond's trial counsel promptly
objected to the prosecutor's parole remark. He persuaded the judge to
tell the jury that it was improper and incorrect and to instruct the
jury to disregard it. Counsel did not ask for an automatic mistrial, to
which he would have been entitled under O.C.G.A. § 17-8-76. He did not
know at the time that state law entitled him to a mistrial on request.
Our issue is whether the Georgia trial court's determination that the
failure of Hammond's counsel to request a mistrial of the sentencing
phase was not “outside the wide range of professionally competent
assistance,” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, is contrary
to or an unreasonable application of Strickland.
Because the ineffective assistance of counsel
standard is an objective one, a petitioner must establish that “no
competent counsel would have taken the action that his counsel did take.”
Chandler, 218 F.3d at 1315. Under the law of this circuit the question
is not why Hammond's counsel failed to move for a mistrial because of
the parole remark but whether a competent attorney reasonably could have
decided not to move for one. Id. at 1314-16. If an attorney could have
reasonably decided not to abort the sentencing phase at the point the
prosecutor mentioned parole, it does not matter if the actual reason
trial counsel did not move for a mistrial was inattention, misguided
tactics, or unawareness of the code section. See McClain v. Hall, 552
F.3d 1245, 1253 (11th Cir.2008) (“[I]t matters not whether the
challenged actions of counsel were the product of a deliberate strategy
or mere oversight. The relevant question is not what actually motivated
counsel, but what reasonably could have motivated counsel.”) (internal
quotation marks omitted); Chandler, 218 F.3d at 1316 n. 16 (approving of
Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir.1988) (en banc), and
citing it as “concluding-without evidentiary hearing on whether
counsel's strategy arose from his ignorance of law-that trial counsel's
performance was competent because hypothetical competent counsel
reasonably could have taken action at trial identical to actual trial
counsel.”).FN16
FN16. Our analysis is not affected by the fact that
trial counsel asked for a mistrial in response to two other remarks the
prosecutor had made earlier in his closing argument at the sentencing
stage. Hammond does not contend that asking for a mistrial on those two
other occasions amounted to ineffective assistance, and we have no
occasion to address that question. His claim is only that failing to
request a mistrial because of the parole remark was ineffective
assistance. To the extent that Hammond argues the two instances in which
his counsel did seek a mistrial show that the failure to seek one in
this instance was not strategic, that argument assumes that we should
apply a subjective standard. Under the objective standard set out in our
Chandler decision, the question is not why this counsel failed to ask
for a mistrial after the parole remark, but whether an attorney could
have reasonably decided not to ask for one then. To the extent Hammond
argues that his counsel's request for a mistrial in those other two
instances demonstrates it was deficient performance for him not to ask
for one after the parole remark, we disagree. It might just as well be
said that asking for the mistrial on those two other occasions was
deficient performance, while not doing so after the parole remark was
effective assistance. And, of course, it is not objectively unreasonable
for an attorney to change his mind or tactics during the course of a
trial, or during a closing argument for that matter.
It follows that, under our circuit law, if a fully
informed attorney reasonably could have decided to object to the parole
remark and ask for a curative instruction but not move for a mistrial,
Hammond has failed to establish the deficient performance element. And
that is so even without the deference we owe the Georgia courts'
decision rejecting this claim. See generally Schriro, 550 U.S. at 473,
127 S.Ct. at 1939 (“The question under AEDPA is not whether a federal
court believes the state court's determination was incorrect but whether
that determination was unreasonable-a substantially higher threshold.”).
Viewing the matter objectively, an attorney could
have reasonably decided to object and get a curative instruction without
invoking the drastic option of a mistrial. There are a number of reasons
an attorney could have been leery of a mistrial. First, the racial
composition of the jury was favorable to Hammond, a black man accused of
murdering a white woman. After five days of extensive voir dire of
hundreds of potential jurors about their feelings toward race and toward
the death penalty, Hammond's counsel had managed to have a jury selected
that consisted of eight blacks and four whites. An attorney reasonably
could have considered the jury composition favorable and not wanted to
risk losing it in a do-over.
Second, the chance of benefitting from residual doubt
would be reduced with a new jury. See Jefferson, 570 F.3d at 1305 (discussing
residual doubt as a strategy); Hannon, 562 F.3d at 1154 (“We have noted
in our circuit that this lingering doubt or residual doubt theory is
very effective in some cases.”); Parker v. Sec'y, Dep't of Corrs., 331
F.3d 764, 787-88 (11th Cir.2003) (“Creating lingering or residual doubt
over a defendant's guilt is not only a reasonable strategy, but is
perhaps the most effective strategy to employ at sentencing.”) (internal
marks and citation omitted). If a mistrial had been declared, the new
jury would be instructed that Hammond had been found guilty and then
would be immersed in the horrible details of the crimes he had
committed.FN17 A reasonable attorney could consider reducing the
prospects of benefitting from any residual doubt a significant negative.
FN18
FN17. A defendant in Georgia does have the
opportunity to offer evidence relating to guilt or innocence at a
retrial of the sentencing phase. See Alderman v. State, 254 Ga. 206, 327
S.E.2d 168, 173 (1985). That does not mean, however, that a new jury
would be as sensitive to any lingering doubts about guilt as the jury
that had the heavy responsibility for determining guilt in the first
instance. The new jurors would be instructed that the defendant had
already been found guilty by an earlier jury and that their own
responsibility was to set the punishment. An attorney reasonably could
believe that in those circumstances jurors would be less open to a
residual doubt argument than the jurors that had actually gone through
the process of deciding whether the defendant was guilty to begin with.
In addition, an attorney reasonably could be concerned that any
prosecution witnesses he recalled for cross-examination before the new
jury at a sentencing retrial might do better the second time around,
having been through what amounts to a dress rehearsal for responding to
counsel's cross-examination.
FN18. The state trial court pointed out that a
criminal defense attorney specializing in death penalty cases, who was
called as an expert by Hammond, testified that when it comes to
mitigating circumstances evidence, “residual doubt is probably the
biggest mitigation there is.” Remand Order at 59 n.5.
At sentencing Hammond's trial counsel did argue
residual doubt to the jury, not exclusively but forcefully. See, e.g.,
Sentencing Transcript Vol. V at 280 (closing argument at sentence stage)
(“But [the prosecutor] wants you to think that he's sitting here with
all this evidence. Where is it? Where is it? That's what he wants you to
believe.”); id. at 281 (“But [the prosecutor] wants you to convict this
man and say how vicious he is, because he came into this court and said
I am not guilty of murder. I did not kill anyone. And I haven't killed
anyone.”); id. at 285 (“And anything he's been involved with, there may
have been some violent acts, but there was an absence of one thing, and
that was a death. But there was not an absence of death with Maurice
Porter, was there? Maurice Porter and Janet Weldon are the two that was
behind this entire act, but they want this man to pay for it.”). Third,
an attorney could have reasonably believed that a new sentence hearing
some months in the future would open up to reconsideration some
evidentiary rulings that had been made in Hammond's favor. Trial counsel
succeeded in keeping out evidence of some crimes Hammond had committed
as a juvenile in 1978, 1979, and 1983. He had also managed to prevent
Christopher Fagin from being called to testify about Hammond's
involvement in the Gwendale Turner murder. As the state trial court
found in the remand proceeding, trial counsel had “limited significantly
what prior crimes the State was allowed to introduce in the sentencing
phase.” An attorney reasonably could worry that given months to prepare
for a second sentencing phase, the State might be able to persuade the
trial court to admit more of the other crimes evidence, or might unearth
witnesses to still more crimes Hammond had committed.
Finally, a reasonable attorney would take into
account the promptness of the objection to the prosecutor's parole
remark and the equally prompt and clear curative instruction. The
Supreme Court and this Court have often held that we must presume that
juries follow their instructions to disregard specific remarks. E.g.,
CSX Transp., Inc. v. Hensley, --- U.S. ----, 129 S.Ct. 2139, 2141, 173
L.Ed.2d 1184 (2009) (“The jury system is premised on the idea that
rationality and careful regard for the court's instructions will confine
and exclude jurors' raw emotions. Jurors routinely serve as impartial
factfinders in cases that involve sensitive, even life-and-death matters.
In those cases, as in all cases, juries are presumed to follow the
court's instructions.”); Greer v. Miller, 483 U.S. 756, 767 n. 8, 107
S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987) (“We normally presume that
a jury will follow an instruction to disregard inadmissible evidence....”);
United States v. Stone, 9 F.3d 934, 938 (11th Cir.1993) (collecting
cases). By the same token, attorneys reasonably can rely on that
presumption. An attorney reasonably could proceed on the premise that
the jury would disregard the prosecutor's parole remark, which it was
told was “improper, incorrect” and was specifically instructed to
disregard.
In sum, regardless of the actual reason Hammond's
trial counsel did not request a mistrial based on the parole remark, an
attorney in his position reasonably could have decided not to ask for
one for good and adequate reasons. Therefore, not asking for a mistrial
was objectively within “the wide range of professionally competent
assistance,” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, because it
could be justified by a reasonable strategy. See Chandler, 218 F.3d at
1315 (“[F]or a petitioner to show that the conduct was unreasonable, a
petitioner must establish that no competent counsel would have taken the
action that his counsel did take.”); McClain, 552 F.3d at 1253 (“Even if
[defendant's] counsel in fact had no strategic reason for not further
investigating [defendant's] history of drug abuse, counsel could have
reasonably concluded that further investigation would not yield valuable
evidence.... ”). Accordingly, the Georgia trial court reasonably applied
Strickland in denying Hammond's ineffective assistance of counsel claim
because he did not establish that the failure to request a mistrial was
“outside the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Alternatively, even if
no deference were due the state court decision on the performance
element, we would still conclude that Hammond had failed to establish it.
3.
Having found that this ineffective assistance of
counsel claim fails on the performance element, we could stop here. In
the interest of completeness, however, we will address the State's
alternative argument that the claim also fails on the prejudice element.
As we have mentioned, the Georgia Supreme Court decided it did fail for
that reason. Hammond II, 452 S.E.2d at 749.
This is not your ordinary prejudice issue. It is an
ineffective assistance prejudice issue different in kind from those that
the Supreme Court and this Court have decided in the quarter century
since Strickland was decided. All of those decisions that we have been
able to find involve asserted errors of counsel that the defendant
claimed deprived him of some advantage or protection that the
Constitution or constitutionally protected values entitled him to have.
That is not what we have here. This is a case in which the asserted
error involved a state statutory right that not only does not protect or
advance constitutional values or interests but also is in tension with
them. FN19
FN19. We asked the attorneys to file supplemental
briefs on whether any decision had addressed this peculiar prejudice
issue. The only controlling authority Hammond's present counsel pointed
to is Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d
985 (2000). That decision is not, however, one in which the Court
applied Strickland to the failure to assert a pure state law right that
did not further any federal constitutional principles or interests.
Instead, Flores-Ortega involved counsel's alleged failure to consult
with the defendant about his right to appeal the conviction. The Court
expressly held that “counsel has a constitutionally imposed duty to
consult with the defendant about an appeal” when there is reason to
believe the defendant would want to appeal or the defendant has
demonstrated an interest in appealing. Id. at 480, 120 S.Ct. at 1036. In
those circumstances, a failure to consult deprives the defendant of his
federal constitutional right to be consulted about whether he should
file a direct appeal. In its discussion of prejudice, the Flores-Ortega
Court analogized a direct appeal to a critical stage of the trial
proceeding. Id. at 483, 120 S.Ct. at 1038. The Court did not suggest
that a direct appeal, or consultation about whether to take one, does
not serve to protect federal constitutional principles or values. We
believe that it does.
Although Hammond's present counsel have not argued it
to us, we have also considered Glover v. United States, 531 U.S. 198,
121 S.Ct. 696, 148 L.Ed.2d 604 (2001), which held that attorney error
resulting in a sentence that was between 6 and 21 months higher than it
should have been under the (then) mandatory federal sentencing
guidelines range constituted prejudice. Glover is distinguishable from
the present case because it involved the failure to assert a federal
right, a failure that implicated the constitutional right not to be
subject to a higher sentence than the law allows. (The top of the
guidelines range after adjustments and departures was the equivalent of
a statutory maximum in the pre- Booker era.). See Ivy v. State, 731
So.2d 601, 603 (Miss.1999) (sentence exceeding statutory maximum is
error affecting fundamental constitutional rights); Crotts v. State, 795
So.2d 1020, 1021 (Fla. 2d DCA 2001) (sentencing error violates
substantive due process). See generally Bozza v. United States, 330 U.S.
160, 166, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947) (“It is well
established that a sentence which does not comply with the letter of the
criminal statute which authorizes it is so erroneous that it may be set
aside on appeal, or in habeas corpus proceedings.”) (citations omitted);
cf. United States v. Bownes, 405 F.3d 634, 637 (7th Cir.2005) (due
process prohibits waiver of the right to appeal a sentence in excess of
the statutory maximum); United States v. Bushert, 997 F.2d 1343, 1351 n.
18 (11th Cir.1993) (“It is both axiomatic and jurisdictional that a
court of the United States may not impose a penalty for a crime beyond
that which is authorized by statute.”). The Glover case did not involve
the failure to enforce a state law right that was in some tension with
federal constitutional rights and interests.
The Georgia statute, enacted in 1957, forbids any
argument that a defendant might not serve his full sentence because he
could be paroled (or pardoned). O.C.G.A. § 17-8-76(a); see generally
Davis v. State, 255 Ga. 598, 340 S.E.2d 869, 884-85 (1986). It applies
to capital as well as non-capital cases. See § 17-8-76(a). The Supreme
Court has never suggested that making a parole eligibility argument to a
capital sentencing jury is unconstitutional or impedes federal
constitutional values. Instead, a trilogy of Supreme Court decisions
makes clear that it is constitutionally permissible to inform a jury
that unless it sentences a capital defendant to death he will be
eligible for parole. The import of those decisions goes beyond that. The
Court's reasoning in them indicates that the Georgia statute, while
permissible, not only does nothing to further federal constitutional
values in the capital sentencing area but also is in some tension with
them. Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d
133 (1994), involved a death sentence imposed on a defendant who,
because of prior convictions for violent crimes, would not have been
eligible for parole if the jury had sentenced him to life imprisonment.
See id. at 156, 114 S.Ct. at 2190; see also Shafer v. South Carolina,
532 U.S. 36, 48, 121 S.Ct. 1263, 1271, 149 L.Ed.2d 178 (2001). The
Supreme Court held in Simmons that capital defendants have a federal due
process right to have the sentencing jury informed of their
ineligibility for parole, at least where the prosecution argues future
dangerousness as a basis for a death sentence. Simmons, 512 U.S. at
162-66, 171, 114 S.Ct. at 2193-95, 2198 (plurality opinion of Blackmun,
J., joined by Stevens, Souter, and Ginsburg, JJ.); id. at 176-78, 114
S.Ct. 2187, (concurring opinion of O'Connor, J., joined by Rehnquist,
C.J., and Kennedy, J.).
By the time of the decision in Shafer v. South
Carolina, that state had enacted a new capital sentencing scheme, 532
U.S. at 46 n. 3, 121 S.Ct. at 1270 n. 3. As revised, South Carolina law
provided that the only sentencing options where the jury found a
statutory aggravating circumstance were death or life imprisonment
without parole. Id. at 41, 46 n. 3, 121 S.Ct. at 1267, 1270 n. 3. Even
though the judge instructed the jury that “life imprisonment means until
the death of the defendant,” he refused to instruct the jury, or allow
defense counsel to inform it, that the defendant could not be paroled
from a life sentence. Id. at 45, 121 S.Ct. at 1269. Instead, the judge
instructed the jury that “[p]arole eligibility or ineligibility is not
for your consideration.” Id. The Supreme Court held that Simmons applied
so that “whenever future dangerousness is at issue in a capital
sentencing proceeding under South Carolina's new scheme, due process
requires that the jury be informed that a life sentence carries no
possibility of parole.” Id. at 51, 121 S.Ct. at 1273. Because of the
failure to provide the jury with accurate information about the
impossibility of parole, the death sentence was reversed. Id. at 55, 121
S.Ct. at 1275. The final case in the trilogy is Kelly v. South Carolina,
534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), which extended the
Simmons rule to cases in which future dangerousness is implied by the
evidence and accentuated by the prosecutor even if he does not
explicitly argue it.
The Supreme Court did not run the rule in the Simmons
trilogy in both directions, but it did allow the states to do so. The
Court said that in a state where a life-sentenced capital defendant is
eligible for parole, nothing in the Constitution requires that the jury
be informed of that eligibility. At the same time, the Court noted,
nothing in the Constitution prevents the prosecution or judge from
informing the jury about parole eligibility either. Simmons, 512 U.S. at
168, 114 S.Ct. at 2196 (plurality opinion); id. at 176 (concurring
opinion of O'Connor, J., joined by Rehnquist, C.J., and Kennedy, J.)
(“In a State in which parole is available, the Constitution does not
require (or preclude) jury consideration of that fact.”).
For present purposes, what is significant is the
reasoning behind the Simmons rule that due process requires a capital
sentencing jury be informed of parole ineligibility where there is
evidence of future dangerousness. In reaching that conclusion the
Supreme Court recognized that “a defendant's future dangerousness bears
on all sentencing determinations made in our criminal justice system,”
Simmons, 512 U.S. at 162, 114 S.Ct. at 2193 (plurality opinion), and it
has a special importance in capital sentencing decisions where it is
“indisputably relevant.” Id. at 163, 114 S.Ct. at 2194. Indeed, the
Court reasoned that “it is entirely reasonable for a sentencing jury to
view a defendant who is eligible for parole as a greater threat to
society than a defendant who is not.” Id. Viewed from the other
direction, “there may be no greater assurance of a defendant's future
nondangerousness to the public than the fact that he will never be
released on parole.” Id. at 163-64, 114 S.Ct. at 2194. That is why the
Court was convinced that, for the jury, parole information is “so
crucial to its sentencing determination, particularly when the
prosecution alluded to the defendant's future dangerousness in its
argument to the jury.” Id. at 164, 114 S.Ct. at 2194.
The Court explained that unless informed by the
attorneys or the court, jurors lack information about parole laws and
“there is a reasonable likelihood of juror confusion about the meaning
of the term ‘life imprisonment.’ ” Id. at 169-70 & n. 9, 114 S.Ct. at
2197 & n. 9; id. at 169, 114 S.Ct. at 2197 (“It can hardly be questioned
that most juries lack accurate information about the precise meaning of
‘life imprisonment’ as defined by the States.”); id. at 177-78, 114 S.Ct.
at 2201 (concurring opinion of O'Connor, J., joined by Rehnquist, C.J.,
and Kennedy, J.) (“[C]ommon sense tells us that many jurors might not
know whether a life sentence carries with it the possibility of parole.”).
A jury that is given a life sentence option but not told about what it
means will be left “to speculate whether ‘life imprisonment’ means life
without parole or something else.” Id. at 166, 114 S.Ct. at 2195 (plurality
opinion). Failing to inform the jury about whether the defendant will be
eligible for parole could lead it to “a false choice” and a “grievous
misperception.” Id. at 161-62, 114 S.Ct. at 2193. That is why concealing
information about whether a life-sentenced defendant will be eligible
for parole can amount to misleading the jury. Id. at 166 n. 5, 114 S.Ct.
at 2195 n. 5.
Two members of the Court went beyond the due process
holding in Simmons to explain why the Eighth Amendment required the same
result. Id. at 172-74, 114 S.Ct. at 2198-99 (concurring opinion of
Souter, J., joined by Stevens, J.). They pointed out that a capital
sentencing jury is called upon to make “a reasoned moral judgment about
whether death, rather than some lesser sentence, ought to be imposed.”
Id. at 172, 114 S.Ct. at 2198. That “requires provision of accurate
sentencing information as an indispensable prerequisite to a reasoned
determination of whether a defendant should live or die.” Id. (internal
marks and brackets omitted). That same “need for heightened reliability”
requires that the jury be instructed on the terms used to describe the
sentences it must consider in making “the reasoned moral choice between
sentencing alternatives.” Id.
To similar effect is California v. Ramos, 463 U.S.
992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), which upheld an instruction
informing the jury that the governor had the authority to commute a
sentence of life without parole to one of parole eligibility. The Court
reasoned that without such information the jury might be misled; the
instruction “corrects a misconception and supplies the jury with
accurate information for its deliberation in selecting an appropriate
sentence.” Id. at 1009, 103 S.Ct. at 3458.
The point of our discussion is not that the Georgia
parole concealment statute, O.C.G.A. § 17-8-76, is unconstitutional. It
most definitely is not. See Simmons, 512 U.S. at 168, 114 S.Ct. at 2196
(plurality opinion); id. at 176-77, 114 S.Ct. 2187 (concurring opinion
of O'Connor, J., joined by Rehnquist, C.J., and Kennedy, J.); see also
Ramos, 463 U.S. at 1013-14 & n. 30, 103 S.Ct. at 3460 & n. 30. The point
is that the statute does not further the federal constitutional
interests identified in the Simmons trilogy, or any others for that
matter. Instead, its purpose and effect to some extent run counter to
those federal constitutional interests and impede them, albeit in a way
and to an extent that is not constitutionally forbidden.
As the Georgia Supreme Court has explained, the
purpose of the statute is to conceal from the sentencing jury the fact
that if it sentences the defendant to life, he will be parole eligible.
Davis, 340 S.E.2d at 884. It is intended to and does have that purpose
and effect even in cases, like this one, where the evidence focuses on
the defendant's future dangerousness and the prosecutor stresses that
factor throughout his closing argument.FN20 The statute operates to
prevent the jury from even knowing about, much less taking into account,
an “indisputably relevant” fact that is “crucial to its sentencing
determination,” Simmons, 512, U.S. at 163-64, 114 S.Ct. at 2194 (plurality
opinion). Despite the fact that “it is entirely reasonable for a
sentencing jury to view a defendant who is eligible for parole as a
greater threat to society than a defendant who is not,” id. at 163, 114
S.Ct. at 2194, the Georgia statute effectively mandates that the jury
view them the same. Because most jurors do not know what “life
imprisonment” means, the statute leaves them to speculate, it causes
confusion, and it may lead to a “false choice” and a misperception
tainting their capital sentencing decision, id. at 161-66, 114 S.Ct.
2187. To be sure, the taint is in favor of the defendant but it is a
taint nonetheless. FN20. See, e.g., Tr. at 261 (“[H]e is too big a risk
to be let back out into society.”); Tr. at 262-63 (“The death sentence
... takes the life of a murderer to prevent other murders.”); Tr. at 265
(“[B]ased upon everything you have seen and heard, the defendant is a
threat to society.”); Tr. at 268 (“[T]he death sentence uses evil to
prevent a greater evil. It takes the life of the murderer to prevent
further murders. He is a menace to society.”); Tr. at 270 (“Just look at
his crimes. What do you think will happen to him this time? Can we
afford to take that risk?”).
The Georgia statute hobbles a capital sentencing jury
in its attempt to make “a reasoned moral judgment” between life and
death. Id. at 172-74, 114 S.Ct. at 2198-99 (concurring opinion of Souter,
J., joined by Stevens, J.). It works against the heightened reliability
required for capital sentencing, and by virtually ensuring that there
will be “a reasonable likelihood of juror confusion about the meaning of
the term ‘life imprisonment,’ ” Simmons, 512 U.S. at 169-70 & n. 9, 114
S.Ct. at 2197 & n. 9 (plurality opinion), which is one of the most
crucial facts relevant to the sentencing decision, the statute can lead
to sentences that are “arbitrarily or discriminatorily and wantonly and
freakishly imposed,” id. at 173, 114 S.Ct. at 2198 (concurring opinion
of Souter, J., joined by Stevens, J.) (internal marks, ellipsis, and
citations omitted). We have come a long way since Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the decisions that
came in its immediate wake. But we have not come so far that we can
forget that arbitrariness and caprice are to be avoided in capital
sentencing. Ignorance of crucial facts that inform the sentencing
decision promotes arbitrary and capricious sentencing. We must keep that
principle in mind when deciding whether it was contrary to or an
unreasonable application of Supreme Court law under § 2254(d)(1) for the
Georgia Supreme Court to decide that the failure of Hammond's counsel to
take every available step to enforce the Georgia parole concealment
statute does not undermine confidence in the outcome of the sentence
proceeding.
In affirming the denial of state collateral relief on
this ineffective assistance claim, the Georgia Supreme Court decided
that Hammond had not shown the requisite prejudice from his counsel's
failure to demand a mistrial because of the prosecutor's parole remark.
Hammond II, 452 S.E.2d at 749-50. The court reasoned that while a motion
for a mistrial would have resulted in another jury deciding Hammond's
sentence, there was no reason to believe that a new jury would have
reached a different result. Id. It pointed out that “[t]he evidence
against Hammond, offered both during the guilt/innocence phase and in
aggravation during the sentencing phase, was overwhelming” and that the
trial judge had instructed the jury to disregard the prosecutor's remark
about parole. Id. at 749. The court concluded that “Hammond has not met
his burden of showing that had a motion for mistrial been made ‘the
decision reached would reasonably likely have been different.’ ” Id. at
750 (quoting Strickland, 466 U.S. at 696, 104 S.Ct. at 2069).
Hammond's primary argument on this point is that the
Georgia Supreme Court's decision about the lack of prejudice is due no
deference under § 2254(d)(1) because the court looked to whether the
outcome of a new sentencing proceeding before a different jury would
have reached a different sentencing verdict. He argues that it instead
should have looked merely to whether there would have been a different
result in this very sentencing proceeding-a mistrial instead of a death
sentence, as it turned out. Because it asked the wrong question, Hammond
argues, the Georgia Supreme Court's decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” § 2254(d)(1).
The problem for Hammond is that he cannot point to
any Supreme Court decision that establishes what the prejudice question
is when the alleged attorney error is the failure to scuttle a
proceeding based on a state law right that not only does not involve
enforcement of federal constitutional rights or interests but that also
is in some tension with them. Hammond cannot cite any decision in which
the Supreme Court has held that if an attorney fails to claim a state
law right that is not grounded in any federal constitutional right or
interests, courts should not look to whether there is a reasonable
probability that the do-over proceeding state law provides would reach a
different result.
There is language in some Supreme Court decisions
that might be construed in Hammond's favor, if taken out of context, but
it is only language and not a holding. That distinction is crucial
because the Supreme Court has instructed us that in applying §
2254(d)(1) we are to look only to its actual holdings and not to its
dicta. See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523,
146 L.Ed.2d 389 (2000) (“That statutory phrase refers to the holdings,
as opposed to the dicta, of this Court's decisions as of the time of the
relevant state-court decision.... [I]t restricts the source of clearly
established law to this Court's jurisprudence.”); accord Carey v.
Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006);
Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158
L.Ed.2d 938 (2004); Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166,
1172, 155 L.Ed.2d 144 (2003); Tyler v. Cain, 533 U.S. 656, 664, 121 S.Ct.
2478, 2483, 150 L.Ed.2d 632 (2001); see also Newland v. Hall, 527 F.3d
1162, 1183 (11th Cir.2008); Stewart, 476 F.3d at 1208; Osborne v. Terry,
466 F.3d 1298, 1305 (11th Cir.2006).FN21
FN21. The Supreme Court has also instructed us not to
look to lower court decisions when we are deciding what is clearly
established federal law for § 2254(d)(1) purposes. See Williams, 529 U.S.
at 365, 120 S.Ct. at 1499; see also id. at 381, 120 S.Ct. at 1507 (Stevens,
J., concurring) (“If this Court has not broken sufficient legal ground
to establish an asked-for constitutional principle, the lower federal
courts cannot themselves establish such a principle with clarity
sufficient to satisfy the AEDPA bar.”); Musladin, 549 U.S. at 74, 77,
127 S.Ct. at 652, 654 (vacating a decision in which the Court of Appeals
“cited its own precedent in support of its conclusion” that two Supreme
Court cases clearly established a particular rule of federal law because
no holding of the Supreme Court required that interpretation). We have
followed that instruction in examining this prejudice issue.
Two statements in the Williams opinion illustrate the
kind of language we are talking about here. At one place the opinion
explains that counsel's deficient performance in an earlier case “had
not deprived him of any substantive or procedural right to which the law
entitled him.” Williams, 529 U.S. at 392, 120 S.Ct. at 1512-13. At
another place the opinion discusses whether the ineffectiveness of
counsel “deprive[d] the defendant of any substantive or procedural right
to which the law entitles him.” Id. at 393 n. 17, 120 S.Ct. at 1513 n.
17. Those two references in Williams to “the law” might be broadly read
to include state as well as federal law, but the context in which they
appear indicates otherwise and shows that the holding of the decision
does not reach the present situation. In Williams it was “undisputed
that Williams had a right-indeed, a constitutionally protected right-to
provide the jury with the mitigating evidence that his trial counsel
either failed to discover or failed to offer.” Id. at 393, 120 S.Ct. at
1513. It was that federal constitutional right, not some state law right,
which had been lost through counsel's inaction. The Supreme Court had no
occasion to decide in Williams the issue before us because this issue
was not presented by the facts of that case.
The point is that the Supreme Court has never decided
whether the prejudice standard that applies when attorney error results
in loss of, or interference with, a federal constitutional right or
interest also applies when the loss is only of a state law right that is
not congruent with federal constitutional rights or interests. Because
the Supreme Court has never decided that issue, we cannot say that the
Georgia Supreme Court's resolution of the issue is contrary to or an
unreasonable application of clearly established federal law. See Wright
v. Van Patten, 552 U.S. 120, 126-27, 128 S.Ct. 743, 747, 169 L.Ed.2d 583
(2008) (“Because our cases give no clear answer to the question
presented, let alone one in [petitioner's] favor, it cannot be said that
the state court ‘unreasonably applied clearly established Federal law.’
”) (internal brackets altered and citation omitted); Musladin, 549 U.S.
at 76, 127 S.Ct. at 653-54 (holding that even though Supreme Court
decisions clearly established the test for inherent prejudice in cases
involving state-actor conduct in the courtroom, a state court decision
applying a different prejudice test for private-actor conduct was not
contrary to or an unreasonable application of those decisions).
The Musladin case seems particularly apt here. In it
the clearly established prejudice rule developed in cases involving
state-actor conduct could have been extrapolated or extended to private-actor
conduct, but the Supreme Court recognized that § 2254(d)(1) does not
permit extrapolation or extension. Instead, that provision looks only to
what the Supreme Court has actually held. For that reason, the Court
concluded that “[g]iven the lack of holdings from this Court regarding
the potentially prejudicial effect of spectators' courtroom conduct of
the kind involved here, it cannot be said that the state court
‘unreasonably applied clearly established Federal law.’ ” 549 U.S. at
77, 127 S.Ct. at 654 (internal brackets omitted). The same is true here.
Given the lack of any holding from the Supreme Court regarding the
prejudice test applicable to an attorney error that forfeits only a
state law right with no federal constitutional underpinnings, we cannot
say the Georgia Supreme Court unreasonably applied clearly established
federal law in looking to whether there is any reasonable probability of
a different sentence verdict if a mistrial had been demanded and the
case presented to a new jury.
Alternatively, even if the issue were before us anew,
we would decide that Hammond has not shown the required prejudice from
his counsel's action in objecting and requesting a curative instruction
instead of moving for a mistrial. The purpose of the prejudice component
of an ineffective assistance of counsel claim is to ensure the
reliability and fundamental fairness of the proceeding. Strickland, 466
U.S. at 687, 104 S.Ct. at 2064 (stating that the prejudice component
“requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable”). The
Georgia parole concealment statute does not promote or safeguard the
fairness or reliability of a sentence proceeding. To the contrary, as we
have explained, the statute suppresses truthful information and keeps
the jury ignorant of crucial facts that would inform its sentencing
decision. It is one thing to recognize that a state may enact a statute
that keeps information about parole from the jury even though doing so
hobbles the jury's ability to make a reasoned moral choice at sentencing.
It is quite another thing to say that failure to enforce the remedies
the state statute provides renders the sentence proceeding unfair or
unreliable.
4.
We affirm the district court's denial of relief on
Hammond's ineffective assistance of counsel claim relating to the
prosecutor's remark about parole eligibility, which violated O.C.G.A. §
17-8-76. We do so because we believe that the Georgia courts'
adjudication of that claim is not contrary to or an unreasonable
application of clearly established federal law, within the meaning of 28
U.S.C. § 2254(d)(1), as to either the performance or prejudice
components of that claim. Alternatively, even if no deference were owed
under § 2254(d)(1), we would reach the same conclusion. AFFIRMED.
