Background: Petitioner, convicted in state court
of murder and sentenced to death, 259 Ga. 770, 386 S.E.2d 509,
sought federal habeas relief. The United States District Court for
the Middle District of Georgia, No. 96-00097-3:CV-DF, Duross
Fitzpatrick, J., denied petition. Petitioner appealed.
Holdings: The Court of Appeals, Tjoflat, Circuit
Judge, held that:
(1) petitioner had no due process right to psychiatric assistance;
(2) even if petitioner had right to psychiatric assistance, trial
court met its obligations under due process clause;
(3) state court's determination that claim that prosecutor's
participation in hearings on petitioner's requests for funds to
retain psychiatric expert violated due process was subject to
harmless error analysis was not contrary to, or unreasonable
application of, federal law;
(4) any error in not providing ex parte hearings on requests for
funds was harmless;
(5) petitioner failed to provide evidence discrediting prosecutor's
specific, nonracial reasons for using peremptory strikes against
African-Americans;
(6) claim that trial court seated two jurors who were impermissibly
predisposed toward death sentence was procedurally defaulted; and
(7) counsel did not render ineffective assistance. Affirmed.
TJOFLAT, Circuit Judge:
Petitioner John Washington Hightower, a Georgia prisoner, seeks a
writ of habeas corpus setting aside his 1988 convictions and
sentences for capital murder. The district court denied his petition.
We affirm.
The Supreme Court of Georgia summarized the facts
of this case as follows:
The defendant was married to Dorothy Hightower.
Her brother stopped by their home early in the morning of July 12,
1987, to pick up his daughter. Dorothy Hightower's car was gone. The
brother entered the home and found that Dorothy Hightower and her
two daughters, Evelyn and Sandra Reaves, had been shot. Evelyn
Reaves was still alive, but died two days later. Sandra Reaves and
Dorothy Hightower were dead. The brother's daughter was unharmed.
Two and one-half hours later, the defendant was
arrested driving his wife's car. Inside the car was a bloody
handgun. He confessed later that morning. He told police that he and
his wife had been having marital problems, and he had purchased the
murder weapon the day before. He hid it under his pillow until 3:00
a.m., when he shot his wife.
He then went to the bedroom occupied by
his stepdaughter Sandra Reaves. She got out of bed, but then lay
back down. He shot her in the head. Evelyn Reaves tried to leave the
house, but the defendant caught her and shot her three times.
Hightower v. State, 259 Ga. 770, 386 S.E.2d 509, 510 (1989).
After a trial held from April 28, 1988, to May 4,
1988, a jury in Morgan County, Georgia,FN1 convicted Hightower of
three counts of murder. In the penalty phase, the jury found an
aggravating circumstance as to each murder, namely, that Hightower
had committed each murder in the course of the commission of another
murder.FN2 The jury recommended death sentences on each of the three
counts of murder. The trial court entered these sentences as
required by Georgia law.FN3
FN1. Hightower was indicted in Baldwin County on
July 14, 1987. At a hearing on January 15, 1988, the superior court
granted Hightower's motion for a change of venue, and ordered that
venue be changed to Morgan County for trial. On February 25, 1988,
the court quashed the indictment on the ground that African-Americans
were underrepresented on the venire from which the grand jury had
been drawn.
A new indictment was returned on March 18, 1988,
and Hightower was arraigned on April 15, 1988. On April 20, 1988,
the superior court issued an order nunc pro tunc January 15, 1988,
incorporating into the record of the new case all motions, orders,
and rulings from the earlier case.
FN2. O.C.G.A. § 17-10-31 requires that a death
sentence be supported by “a finding of at least one statutory
aggravating circumstance.” One sufficient aggravating circumstance
for murder is that it “was committed while the offender was engaged
in the commission of another capital felony or aggravated battery.”
O.C.G.A. § 17-10-30. Hightower's jury found that (1) the murder of
Dorothy Hightower was committed while Hightower was engaged the
commission of the murder of Evelyn Reaves, (2) the murder of Sandra
Reaves was committed while Hightower was engaged in the commission
of the murder of Dorothy Hightower, and (3) the murder of Evelyn
Reaves was committed while Hightower was engaged in the commission
of the murder of Sandra Reaves.
FN3. O.C.G.A. § 17-10-31 provides that “[w]here a
statutory aggravating circumstance is found and a recommendation of
death is made, the court shall sentence the defendant to death.”
Hightower sought, but was denied, a new trial.
The Georgia Supreme Court affirmed Hightower's convictions on direct
appeal, Hightower v. State, 259 Ga. 770, 386 S.E.2d 509 (1989), and
denied his motion for reconsideration. The Supreme Court of the
United States denied Hightower's petition for a writ of certiorari,
Hightower v. Georgia, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184
(1990), and his petition for rehearing, Hightower v. Georgia, 498
U.S. 995, 111 S.Ct. 549, 112 L.Ed.2d 557 (1990).
Hightower then petitioned the Superior Court of
Butts County, Georgia, for a writ of habeas corpus.FN4 After an
evidentiary hearing, the court denied his petition. The Georgia
Supreme Court denied Hightower's application for probable cause to
appeal and his subsequent motion for reconsideration. The Supreme
Court of the United States denied Hightower's petition for a writ of
certiorari, Hightower v. Thomas, 515 U.S. 1162, 115 S.Ct. 2618, 132
L.Ed.2d 860 (1995), and his petition for rehearing, Hightower v.
Thomas, 515 U.S. 1183, 116 S.Ct. 30, 132 L.Ed.2d 912 (1995).
FN4. Hightower petitioned that court because he
was incarcerated in Butts County.
Having pursued all state court avenues of relief,
Hightower sought habeas corpus relief in the United States District
Court for the Middle District of Georgia. The district court denied
his petition, concluding on the basis of the records of the state
court proceedings that none of his claims had merit. FN5 The
district court thereafter granted Hightower's application for a
certificate of appealability pursuant to 28 U.S.C. § 2253(c),
concluding that he had made a “substantial showing of the denial of
a constitutional right” with respect to each of his claims.
In this appeal, however, Hightower challenges the
district court's disposition only of a portion of his claims. FN6 He
contends that the state trial court committed constitutional error
by (1) failing to provide him with the assistance of a qualified
psychiatrist as required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985), and by neglecting to conduct hearings on
his Ake requests ex parte; (2) allowing the prosecutor peremptorily
to strike African-Americans from the jury, in contravention of
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986); and (3) permitting jurors unconstitutionally biased in favor
of the death penalty to serve on his jury. He also claims that his
two court-appointed lawyers provided constitutionally ineffective
assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
FN5. The court also denied Hightower's Federal
Rule of Civil Procedure 59(e) motion to alter and amend the judgment.
FN6. Hightower has abandoned the following claims
by not including them in his brief: (1) the prosecutor engaged in
various forms of misconduct before and during the trial, depriving
him of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to a fair trial and a reliable sentencing proceeding; (2)
the trial court violated his rights under the Fifth and Fourteenth
Amendments by failing to have all proceedings against him
transcribed and made part of the record; (3) the State obtained his
confession and used it against him at trial in contravention of the
Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) the trial court
violated his rights under the Eighth and Fourteenth Amendments by
providing misleading and incomplete instructions to the jury during
the penalty phase of his trial; (5) the trial court violated his
Fourteenth Amendment due process rights by allowing the prosecutor
to introduce allegedly inflammatory victim impact evidence; and (6)
his attorneys were constitutionally ineffective in numerous ways
beyond those cited in his brief to us.
* * *
Hightower raises two separate claims under Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We
address these in turn.
Hightower first claims that he was denied his
rights under Ake to the assistance of a competent psychiatrist.
Hightower unsuccessfully raised this claim on direct appeal to the
Georgia Supreme Court.FN7 Hightower v. State, 259 Ga. 770, 386 S.E.2d
509, 511 (1989). Thus, under 28 U.S.C. § 2254(d), for Hightower to
prevail on this claim, the decision of the Georgia Supreme Court
must have been “contrary to, or ... an unreasonable application of,
clearly established” United States Supreme Court precedent, or
“based on an unreasonable determination of the facts in light of the
evidence.” We hold that it was not. Because Hightower failed to make
the threshold showing required to trigger his rights under Ake, and
received defense funds that he could have used for a psychiatric
expert, his claim fails.
FN7. Hightower later brought this claim before
the Superior Court of Butts County. That court refused to review the
claim, citing Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986).
Gunter held that an “issue ... actually litigated, i.e., raised and
decided [on] direct appeal ... cannot be reasserted in habeas corpus
proceedings” in Georgia state courts. Id. at 644-45 (citations
omitted).
The Supreme Court in Ake considered the
constitutional right of indigent criminal defendants to psychiatric
assistance. In that case, Ake, the defendant, notified the trial
court during a pretrial conference of his intention to raise an
insanity defense, and requested the appointment of, or funds to hire,
a psychiatrist. Ake, 470 U.S. at 72, 105 S.Ct. at 1090. The court
denied the request. Id. at 72, 105 S.Ct. at 1090-91. At the guilt
phase of Ake's trial, “there was no expert testimony for either side
on Ake's sanity at the time of the offense,” even though “his sole
defense was insanity.” Id. at 72, 105 S.Ct. at 1091 (emphasis
omitted). The jury found him guilty. Id. at 73, 105 S.Ct. at 1091.
At the sentencing phase, Ake, without a psychiatric expert, could
not rebut the testimony of state psychiatrists who claimed he was
“dangerous to society,” and could not “introduce on his behalf [psychiatric]
evidence in mitigation of his punishment.” Id. at 72, 105 S.Ct. at
1091. The jury returned a death sentence. Id.
The Supreme Court ruled in Ake's favor, holding
under the Due Process Clause of the Fourteenth Amendment that when a
defendant demonstrates to the trial judge that his sanity at the
time of the offense is to be a significant factor at trial, the
State must, at a minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and assist
in evaluation, preparation, and presentation of the defense. 470 U.S.
at 83, 105 S.Ct. at 1096.
The Court found that the trial court was
adequately “on notice” that “Ake's mental state at the time of the
offense was a substantial factor in his defense,” id. at 86, 105
S.Ct. at 1097, due in large part to the following facts: (1) Ake's
sole defense was insanity; (2) the trial court, sua sponte, had
ordered that Ake be examined by a psychiatrist to determine the
cause of his “bizarre” behavior at arraignment; (3) a state
psychiatrist later found Ake incompetent to stand trial; (4) Ake was
deemed competent “only on the condition that he be sedated” with
medication during the trial; and (5) psychiatrists who examined Ake
for competency did so within six months of the offense, and opined
that his “mental illness might have begun many years earlier.” Id.
at 86, 105 S.Ct. at 1098.
Because “[a] defendant's mental condition is not
necessarily at issue in every criminal proceeding,” id. at 82, 105
S.Ct. at 1096, the right to psychiatric assistance is not automatic.
Rather, this right hinges upon the sufficiency of the defendant's
preliminary showing to the trial court that there is a “substantial
basis for the defense” that the expert will assist in presenting.
Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987) (en banc).
While defense counsel “cannot be expected to
provide the court with a detailed analysis of the assistance an
appointed expert might provide,” he is nonetheless “obligated to
inform himself about the specific scientific area in question and to
provide the court with as much information as possible concerning
the usefulness of the requested expert” to the defense. Id. The
trial court must then examine the evidence before it, make all
necessary inferences, and determine whether the provision of
psychiatric assistance is warranted.
In reviewing an Ake claim like Hightower's, we
look to the reasonableness of the trial judge's action at the time
he took it. This assessment necessarily turns on the sufficiency of
the petitioner's explanation as to why he needed an expert. That is,
having heard petitioner's explanation, should the trial judge have
concluded that unless he granted his request petitioner would likely
be denied an adequate opportunity fairly to confront the State's
case and to present his defense? Id. at 710.
The sources available to the trial court in
considering Hightower's request for psychiatric assistance included
(1) written motions and exhibits, (2) defense counsel's
representations at pretrial proceedings, and (3) Hightower's
behavior at pretrial proceedings. We “[place] ourselves in the shoes
of the trial judge [and] analyze the information he received as it
was brought before him.” Messer v. Kemp, 831 F.2d 946, 961 (11th
Cir.1987) (en banc). In so doing, we conclude that Hightower failed
to satisfy his preliminary burden under Ake, and was therefore not
entitled to the services of a psychiatrist.
Hightower's attorneys first notified the trial
court of their desire for expert psychiatric assistance in a written
motion dated August 6, 1987. The full text of the motion reads as
follows:
Motion for Funds to Hire Independent
Psychiatrists
1. The defendant, John Hightower, was arrested on
July 10, 1987, and charged with three counts of Murder.
2. The said Defendant was indicted by the Baldwin
County Grand Jury on July 14, 1987, for said offenses.
3. The District Attorney of Baldwin County,
Georgia, Mr. Joseph Briley, has announced that he intends to seek
the death penalty in the prosecution of said case.
4. Counsel for Defendant feel that the
defendant's mental state, together with the presence or absence of
any mental disorder or disease, may be of importance in the defense
of said action.
5. Defense counsel were appointed by this
Honorable Court to represent the Defendant, the said Defendant
having been found previously indigent by this Court.
6. Defendant is without sufficient funds of any
kind with which to hire independent psychiatric or psychological
experts, and feels that the same would be needed in order to insure
him all of his due process rights under the Georgia and the United
States Constitutions.
7. Defendant believes that independent
psychiatric and/or psychological evaluations need to be accomplished
in order to assure that any and all defenses can be properly
presented at trial.
Wherefore, Defendant prays that funds be provided
to his counsel of record for the purpose of employing independent
psychiatric and/or psychological experts in the defense of his case.
This 6th day of August, 1987.
/s/ Hulane E. George, Attorney for Defendant
B. Carl Buice, Attorney for Defendant
The court heard arguments on this and other
motions at a hearing on August 31, 1987. At the hearing, the court
asked defense counsel whether they intended to “make a motion for an
examination at Central State Hospital.” They answered in the
negative, and asked that the court consider instead their motion for
funds to hire an independent psychiatrist.
The court, pursuant to
Ake, ordered counsel to make a preliminary showing that Hightower's
sanity at the time of the offense was likely to be a significant
factor at trial. Carl Buice, one of Hightower's two attorneys,FN8
offered the following:
FN8. The court initially appointed Alan Thrower
to represent Hightower. On July 17, 1987, 5 days after the murders,
the court granted Thrower's motion to be relieved as counsel due to
a conflict of interest. Four days after granting the motion, the
court appointed Hulane E. George and B. Carl Buice to represent
Hightower. George and Buice were a married couple who were also law
partners. They served as Hightower's counsel both at trial and on
direct appeal.
May it please the Court. Where we are at this
point in this issue is at a very preliminary threshold because if we
were not there we would get into a very circuitous situation.
Obviously in order to determine clearly what we are going to need in
the way of psychiatric testimony we need the help of a psychiatrist.
It is not possible to evaluate fully the mental condition of the
defendant without professional assistance to assist us in doing that
and if the Court would note, the Ake decision does not just have to
do with the defense of insanity, but goes on to talk about whether
the mental condition of the defendant is going to be a factor at the
trial of the case which has to do not only with the guilt/innocence
phase or any plea of not guilty or of guilty but insane or not
guilty for reasons of insanity, but also in the area of litigation
and extenuation in terms of whether there are any characteristics of
the defendant which would be mitigating of the circumstances in the
event that he was convicted.
Now, the only thing we can present to the Court
at this point in the absence of having expert testimony is that
which is already apparent in the record. That is, that we have here
a man who is charged with three murders, the murder of his wife and
two stepdaughters. This comes in a situation in a life history in
which there has been no previous violence. We have a situation where
a person of no demonstrated erratic behavior performs an act which
is in and of itself according to the charge of the district attorney,
stunningly abhorrent.
The event itself, the facts themselves raise the
question of the mental state of the defendant and the circumstances
which would lead up to such an event, not just in terms of insanity
which, of course, is a legal term and not a mental health term, but
in terms of all the factors in the defendant's psyche which might
relate to this event and be important in the defense of his case,
not only in the defense in the guilt and innocence phase, but in any
phase of the trial in extenuation and mitigation.
So, what we are asking for at this point in
regard to this particular thing is some preliminary funds for a
psychiatric evaluation on the part of a psychiatrist who is a part
of the defense team who has-to whom we have access and with whom we
can consult in the building of our defense of this man so that we
can know what further issue we may need to raise in terms of
psychiatric evaluation, what defenses we need to file in terms of
this man's condition, whether we have defenses which are defenses in
the guilt/innocence phase or are just issues in the extenuation or
sentencing phase.
All of these are matters that we cannot determine
without having the benefit of counsel from a competent psychiatrist,
someone trained in the mental health field who can help us know what
to look for in terms of this man's personality. This is no small
issue in a case of this nature.
The mental state of the defendant is going to be
a key factor all the way through and if we are to provide him with
an adequate defense, if we are to be able to raise the issues which
need to be raised in this case or at least consider the issues which
may need to be raised, we need that expert assistance ab initio from
the very beginning.
To make us-to require us to make a showing in
terms of some professional evidence in the case where we have no
authority to get a professional to develop the evidence and have no
resource to a professional to determine what sort of issues may be
available to us, denies us of access to that whole area of defense
from the very beginning.
In response to this statement, the court asked
Buice how much money they needed for a psychiatric expert. He said
they needed $750 “[o]n a preliminary basis, reserving the right to
ask for an additional amount in terms of what we may find as we go
forward.” The court granted the motion and “authorize[d] [counsel]
to expend up to” $750. The court also left open the possibility of
granting more funds in the future, but only after another hearing.
At this point, the prosecutor moved that
Hightower be admitted to Central State Hospital for a “psychological
evaluation,” so that the State could rebut any “claim as to mental
incompetency” that the defense might raise at either phase of the
trial. Defense counsel opposed the motion, stating that they would
have Hightower evaluated by his own psychiatrist.
The court asked
when counsel intended to have Hightower examined by their
psychiatrist. They said they planned to have him examined that very
week. Buice, presumably referring to a psychiatric expert he had
already contacted, added: “He has already done some preliminary
interviews. He is in the process.”
In response to the prosecutor's protests that the
defense was merely seeking to “sandbag” the State by preventing it
the opportunity to examine Hightower, the court purported to grant
the prosecutor's motion. But given defense counsel's representation
that Hightower would soon be evaluated by his own expert, the court
delayed his transportation to Central State Hospital for two weeks.
We now place ourselves in the position of the
trial court and evaluate the evidence as it was submitted. In doing
so, we make several observations. First, defense counsel made no
issue of Hightower's “present sanity,” i.e., his competency to stand
trial.FN9 They opposed the prosecutor's attempt to have Hightower
evaluated by a state psychiatrist, and from the record, it does not
appear that the State ever had him evaluated.
Second, by the time of the hearing, his lawyers
had engaged the services of an unnamed mental health expert, and
this expert had already done some unspecified “preliminary” work on
the case.
Third, presumably because they had already chosen
their own expert, counsel requested only that the trial court grant
them funds. They never raised the option of an appointed
psychiatrist.
Fourth, unlike in Ake, in which the trial court
was so concerned about the defendant's peculiar behavior that he
ordered a psychiatric examination sua sponte, neither the court, the
prosecutor, nor defense counsel ever made an issue of Hightower's
behavior at the hearing.FN10
Fifth, defense counsel failed to offer any fact
bearing upon Hightower's mental status apart from the mere
occurrence of the crime itself. At the hearing, they merely pointed
out that Hightower was accused of three “abhorrent” murders even
though his behavior had never before been violent or “erratic.”
FN9. Nothing in the record indicates that
Hightower's behavior at this hearing was in any way peculiar. Indeed,
Hightower's competency to stand trial does not appear ever to have
been at issue, a point that Hightower himself makes in his brief.
FN10. Nor has Hightower argued to us on appeal
that his behavior should have given the trial court pause.
Based upon these observations, we conclude that
Hightower had at this stage failed to satisfy his preliminary burden
under Ake. The trial court had no evidence upon which to conclude
that his “sanity at the time of the offense [was] to be a
significant factor at trial.” Ake, 470 U.S. at 83, 105 S.Ct. at
1096. Despite this, the court gave his attorneys precisely the sum
they requested for a psychiatric expert. No constitutional error had
yet occurred.
As far as the record discloses, it was not until
some three months later that the trial court dealt in any way with
defense counsel's requests for expert psychiatric assistance. In an
order dated November 25, 1987, the court, citing its authorization
of $750 for the payment of a psychiatric expert, ordered the county
to pay $440 to Dr. N. Archer Moore.
Attached to the order is an
itemized billing record detailing services Dr. Moore rendered in
Hightower's case, which were as follows: (1) a one-hour interview
with Hightower on August 25, 1987; (2) a two-hour interview with
Hightower on August 28, 1987; (3) a two-hour interview with
Hightower on August 31, 1987; (4) a one-hour interview with
Hightower on November 16, 1987; and (5) a two-hour conference with
Hightower's attorneys on November 17, 1987.
At this point, the court could discern the
following. First, defense counsel had taken a portion of the funds
they had received and used it to employ an expert of their choice,
Dr. Moore. Second, Dr. Moore was a psychologist, not a
psychiatrist.FN11 Third, Dr. Moore had taken the opportunity to
evaluate Hightower on four separate occasions for a total of six
hours. Fourth, defense counsel had not yet exhausted the $750 that
they had received for the specific purpose of hiring a psychiatric
expert.
FN11. The November 25 order does not identify
this fact, though Dr. Moore's attached billing statement (1) recited
his professional name as “N. Archer Moore, Ph.D.,” (2) gave no
indication that Dr. Moore possessed a medical degree in addition to
his Ph.D., and (3) listed a single professional affiliation, the
American Board of Psychology. The court from these facts alone could
have assumed that Dr. Moore was a psychologist.
No additional funds were requested at this stage,
and no error had yet occurred.
Another three months passed before defense
counsel presented the trial court with any additional information
regarding a need for expert psychiatric assistance. On February 8,
1988, they filed a motion, which reads as follows:
Motion for Additional Funds to Hire
Psychiatrist
1. On August 31, 1987, this Court granted the
Defendant the sum of Seven Hundred Fifty ($750.00) [sic] to hire a
psychologist and/or psychiatrist to evaluate the Defendant herein.
2. Defendant's counsels retained Dr. Archer Moore,
of Macon, Georgia, to evaluate the Defendant. On the advise [sic] of
Dr. Moore, Defendant's counsels were advised to seek a psychologist
or psychiatrist who had extensive experience in dealing with family
violence to evaluate the Defendant.
3. Dr. Emanuel Tanay, M.D., has been contacted by
Defendant's counsel and has advised us that he would be able to
provide forensic psychiatric services to Defendant. A copy of a
letter from Dr. Tanay and a copy of his vitae is attached hereto as
Exhibit “A” and is made a part hereof by reference.
4. Defendant requires the services of Dr. Tanay,
if he is to adequately present not only his defense but to assist
Defense counsel in the preparation of Defendant's case in the guilt/innocence
phase as well as in the sentencing phase. To deny these services is
to violate Defendant's constitutional rights under the Constitutions
of the United States and the State of Georgia.
WHEREFORE, Defendant herein moves that this Court
order that Dr. Tanay [sic] services be ordered and that this Court
sign an order providing that his services would be reimbursed up to
Six Thousand ($6,000.00) Dollars.
This 8th Day of February, 1988.
/s/ Hulane E. George
B. Carl Buice
The first attachment to the motion was a letter
to defense counsel from Dr. Emanuel Tanay, M.D., dated February 1,
1988. In this letter, Dr. Tanay, writing in response to an
“extensive telephone conference” with defense counsel, expressed his
willingness “to provide forensic psychiatric services” for Hightower
at a reduced rate of $150.00 per hour plus expenses.
Dr. Tanay
estimated that his evaluation of Hightower would take at least
twenty hours, and said that he required a court order to guarantee
that he would be paid on an hourly basis for his testimony. In
closing, Dr. Tanay stated that he could not evaluate Hightower
before April 11, 1988.FN12
FN12. Although it does not appear that a trial
date had yet been set, the court and the parties seemed at that
point to have contemplated a trial in mid- to late-April 1988.
The second attachment to the motion was Dr.
Tanay's curriculum vitae. It showed, among other things, that Dr.
Tanay was a psychiatrist licensed in Michigan, Ohio, and Georgia,
and that he was certified by the American Board of Psychiatry and
Neurology and by the American Board of Forensic Psychiatry. In
addition, the curriculum vitae listed Dr. Tanay's numerous
publications, some of which appeared by their titles to address
legal issues related to insanity, mental illness, forensic
psychiatry, and psychic trauma.
The trial court held a hearing on defense
counsel's motion on February 9, 1988. At the hearing, counsel
informed the court of the following:
We have had Mr. Hightower evaluated by our
psychiatrist, Dr. Archer Moore, and he advised us that we really
needed someone who was an expert in family violence. And we have
combed the United States, and we have been advised that this man-if
you will look at his eight page vitae which is just a part of his
vitae, you can see he is very well qualified. I spoke to Dr. Tanay
and as he said in his letter, he could not evaluate Mr. Hightower
until April the 11th of 1988, and he states that he will reduce his
regular fee to $150 per hour plus expenses. His expenses includes
[sic] coming from Detroit to Atlanta and renting a car. I figure
probably somewhere around $6,000 for total expenses for Dr. Tanay.
We desperately need his input in this case. We need it not only in
the guilt-innocent phase but we need it in the sentencing phase. We
need someone to evaluate Mr. Hightower and to give us some clues as
to the causes of this tragedy. And he seems-according to everyone
that we can talk to-is just about the only one in the United States
that is available.
The prosecutor responded that the court had “bent
over backwards already” in meeting Hightower's requests for
psychiatric assistance, and had “gone further than Ake ” required in
this regard. Defense counsel answered:
We are not asking or dealing with the issue of
minimum requirement of the appellate courts. We're asking for
substantial justice on the part of Mr. Hightower. To use just an
ordinary psychologist in a case of this sort where the issues of
domestic violence, a very specialized field, are at stake is rather
analagous [sic] to using a general practitioner for brain surgery.
If any accused person in Mr. Hightower's situation, who had the
funds to do so, were in his place, certainly a specialist of this
sort would be used.
The only reason for not using a specialist of
this sort in this sort of case would be a lack of funds. And if Mr.
Hightower is therefore refused-denied the access to this sort of
specialist simply because of lack of funds, we submit that it would
be tantamount to a failure of due process.
The court then asked counsel if they could cite
any authority that required the provision of additional funds. They
could not. Instead, they reminded the court that they had received
$750 at the last hearing, and that, as they understood it, they were
entitled to come to the court again “if [they] needed more.” The
court then asked counsel how much money it had given them “to spend
at [their] discretion.” Counsel answered:
We have $5,000-$5,750. And we've divided that
into Dr. Moore's bill which was I think $450 which has been paid. We
had-we have hired a jury specialist and we have hired a special
investigator and that will wipe out all of that money. Without
further argument, the court denied the motion for additional funds.
FN13
FN13. Again, we note that the record bears no
indication that Hightower's behavior at this hearing was in any way
peculiar.
We pause once again to consider whether the court
committed error at this stage. We evaluate the additional evidence
now available to the court and discern how it should have affected
its actions. Several things are worth noting.
First, the court knew nothing of Dr. Moore's
evaluation of Hightower save the dates and durations of the
interviews. It was unclear at this point as to (1) whether Dr. Moore
had been able to diagnose Hightower, (2) why Dr. Moore had “advised”
defense counsel to seek an expert in “family violence,” and (3)
whether and in what phase defense counsel intended that Dr. Moore
testify at trial.
Second, the court knew nothing about the probable
value of Dr. Tanay's assistance. It knew only that (1) Dr. Tanay,
unlike Dr. Moore, was a psychiatrist, and (2) defense counsel
perceived Dr. Tanay to be an expert in the unexplained field of
“family violence.” Defense counsel made no issue of the former
distinction,FN14 but instead grasped upon the latter distinction
without explaining its significance.
The most the court could glean
from counsel's representations was that “family violence” was a
“specialty” of psychology or psychiatry dealing with violent
behavior in the context of family relationships. While a specialist
of this kind might have been useful to Hightower, his attorneys
essentially conceded at the hearing that their own notions of “justice,”
rather than the requirements of law, demanded the provision of such
an expert.
FN14. Because we hold that Hightower had no right
to an expert under Ake, we need not decide the question of whether a
criminal defendant's Ake rights are satisfied by the provision of a
psychologist rather than a psychiatrist.
Third, defense counsel provided no additional
facts upon which to make an issue of Hightower's mental state.
Indeed, although Dr. Moore had evaluated Hightower months beforehand,
counsel still did not indicate that they would offer an insanity
defense at trial.
Fourth, Hightower had not behaved peculiarly at
any proceeding. Based upon these observations, we conclude that
Hightower still had not satisfied his preliminary burden under Ake.
Months after they made their initial request for funds for a
psychiatric expert, defense counsel still had not shown the court
that Hightower's sanity was likely to be an issue at trial. That
they had received expert funds in spite of this deficiency did not
entitle them to more. No error had yet occurred.
* * *
We have surveyed all pretrial proceedings at
which Hightower presented the trial court with information bearing
upon his need for a psychiatric expert. He has failed to identify
any point in those proceedings at which the court, given the
evidence then available, acted contrary to the requirements of
federal law.
We are not unconcerned about putting the
proverbial cart before the horse in cases of this kind. Without
question, defense counsel may be unable fully to understand and
explain his client's mental state until an evaluation is performed.
But Ake does not require defense counsel to guide the trial court
through the depths of the defendant's psyche; all it requires is a
minimum threshold showing that the defendant's sanity at the time of
the offense is likely to matter at trial. No such showing was made
in this case.
Even if we assume that Hightower made the showing
Ake requires, we hold that the trial court met its constitutional
obligation under Ake by providing Hightower with defense funds that
could have been spent on the services of a psychiatric expert.
In addition to the $750 it granted specifically
for a psychiatric expert, the court gave Hightower a lump sum of
$5,000 for defense expenses. In Hightower's view, it would have been
improper under the circumstances for his lawyers to use any portion
of this lump sum for a psychiatric expert.
The Georgia Supreme Court
decided to the contrary on direct appeal, finding instead that
Hightower could have used this lump sum “for a special investigator
or other such expert assistance as [he] might choose.” Hightower v.
State, 259 Ga. 770, 386 S.E.2d 509, 511 (1989). This finding of fact
is entitled to a presumption of correctness, one that Hightower can
rebut only “by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
* * *
We turn finally to Hightower's claims of
ineffective assistance of counsel.FN53 Hightower contends that his
attorneys committed various errors at both phases of his trial and
on direct appeal.
FN53. We affirm without further discussion the
district court's rejection of the following 2 claims of ineffective
assistance: (1) that trial counsel failed fully to investigate
Hightower's case, develop mitigating evidence, and seek correct jury
instructions; (2) that trial counsel distanced themselves from
Hightower in front of the jury.
The governing standard is that of Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984):
A convicted defendant's claim that counsel's
assistance was so defective as to require reversal of a conviction
or death sentence has two components. First, the defendant must show
that counsel's performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as
the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Counsel's performance is constitutionally
“deficient” when it “[falls] below an objective standard of
reasonableness.” Id. at 688, 104 S.Ct. at 2064. We must avoid all
temptation to “second-guess” counsel's decisions as to trial
strategy. Id. at 689, 104 S.Ct. at 2065. Instead, we are to examine
“the facts of the particular case, viewed as of the time of
counsel's conduct.” Id. at 690, 104 S.Ct. at 2066.
To establish prejudice, Hightower “ must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S.Ct. at 2068. Put another way, he must
establish that counsel's errors “undermine confidence in the outcome”
of the case.FN54 Id.
FN54. The Strickland Court articulated different
standards for challenges to convictions and sentences:
When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent [counsel's]
errors, the factfinder would have had a reasonable doubt respecting
guilt. When a defendant challenges a death sentence ... the question
is whether there is a reasonable probability that, absent the errors,
the sentencer-including an appellate court, to the extent it
independently reweighs the evidence-would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death. 466 U.S. at 695, 104 S.Ct. at 2068-69.
Although Hightower claims that his attorneys were
ineffective at both phases of his trial and on direct appeal, he
does not clearly differentiate between errors that affected the
guilt determinations and errors that affected the sentences. This
differentiation is of no consequence, as we reject each of
Hightower's claims of ineffective assistance as to both phases of
his trial and as to his direct appeal.
Ineffectiveness of counsel is a mixed question of
law and fact. Id. at 698, 104 S.Ct. at 2070. Thus, we review these
claims de novo. Chandler v. United States, 218 F.3d 1305, 1312 (11th
Cir.2000).
Hightower first argues that his counsel failed to
maintain a coherent defense theory.FN55 We find no basis upon which
to grant relief here.
FN55. Relatedly, Hightower claims that trial
counsel were ineffective for failing to present the testimony of a
“competent” psychiatrist.
In Part III, we hold that Hightower was not
entitled under Ake to the assistance of a psychiatrist, but that in
the alternative, even if he was so entitled, trial counsel received
funds they could have used for a psychiatric expert. Hightower's
ineffective assistance claim depends upon the second alternative.
He states the issue succinctly in a footnote in his brief: “If the
funds provided by the state court were adequate, then trial counsel
should have spent them to hire the qualified psychiatrist they knew
was crucial to their defense.” Essentially, Hightower challenges the
way in which counsel spent the $5,750 in defense funds the court
granted.
We conclude that Hightower has failed to
establish Strickland deficiency in counsel's performance. Apart from
blanket assertions that counsel should have spent some money on a
psychiatrist, he gives no specific indication as to how they should
have acted differently. He does not specify, for example, (1) how
much counsel should have used for a “competent” psychiatrist; (2)
whose services counsel should have declined to employ in order to
retain a “competent” psychiatrist, e.g., the investigator, the jury
specialist, or Dr. Albrecht, all of whom were paid out of the
provided funds; or (3) whether counsel should have hired a
psychiatrist in addition to, or instead of, Drs. Moore and Albrecht,
the psychologists who testified at trial. Because he has failed to
demonstrate with specificity how counsel erred in spending the funds,
Hightower essentially asks us, in direct contravention of Strickland,
to apply the benefit of hindsight to scrutinize counsel's spending
decisions. 466 U.S. at 689, 104 S.Ct. at 2065. This we will not do.
Counsel testified at the hearing before the state
habeas court that their strategy was to save Hightower's life,
rather than to seek an acquittal. This was a reasonable strategic
choice, given that Hightower confessed to the murders on the same
day they occurred. Counsel only pursued this sentence-focused
strategy after discussing it with Hightower and gaining his
approval. Hightower has failed to articulate any concrete attorney
error that prejudiced his defense.FN56 This claim must therefore
fail.
FN56. Hightower contends that his attorneys
prejudicially altered their theory of defense during the course of
the trial. He points to the fact that counsel accepted a “guilty,
but mentally ill” instruction at the guilt phase charge conference
after initially opposing such an instruction. But we cannot see how
Hightower suffered prejudice in this regard. Reasonably believing
that a “not guilty” verdict was unlikely, counsel evidently felt
that it was to Hightower's benefit for the jury to have an
alternative to straight “guilty” verdicts. That the jury did not
select this alternative is immaterial to a claim of ineffective
assistance of counsel.
We must clarify that this ineffective assistance
claim is wholly separate from a claim that Hightower raised in the
state habeas court and the district court. Before those courts, he
claimed that the trial judge erred by failing to give to the jury
the complete “guilty, but mentally ill” instruction required by
O.C.G.A. § 17-7-131(b)(3)(B). Both courts found this claim
procedurally defaulted.
The question before us is merely whether
trial counsel were ineffective in not objecting to a “guilty, but
mentally ill” instruction in the first instance. We conclude that
they were not. As to the next question, i.e., whether the trial
judge erred in giving an improper “guilty, but mentally ill”
instruction, Hightower has not presented the question to us, and we
therefore do not address it.
Hightower next claims that his attorneys were
ineffective at trial for failing to challenge for cause or
peremptorily strike two jurors who, in his view, appeared
predisposed toward a death sentence.FN57 He also contends that
defense counsel were ineffective on direct appeal for failing to
enumerate as error the court's seating of these jurors. The district
court found that even though counsel may have been deficient,
Hightower failed to establish prejudice resulting therefrom. We
agree.
FN57. Hightower also contends that counsel were
ineffective at trial and on direct appeal because of their ignorance
of the correct standard, i.e., Adams- Witt instead of Wainwright.
See Part V. So stated, this claim misses the mark. Hightower cannot
prevail on a claim of ineffective assistance without showing that he
suffered prejudice. As to a reverse- Witherspoon-based claim of
ineffective assistance, Hightower must show that counsel's ignorance
of the correct standard resulted in the seating of jurors who were
unconstitutionally biased in favor of death.
Practically speaking, Hightower must show that
because of their ignorance, defense counsel failed properly to deal
with these unacceptable jurors, whether by neglecting to (1)
challenge them for cause, (2) strike them peremptorily, or (3) claim
on direct appeal that the trial judge erred by seating them. As with
Hightower's main Witherspoon claims, we examine this ineffective
assistance claim in a juror-specific manner.
We first consider his claim as to juror Paul
Jensen. The relevant portion of defense counsel's voir dire of
Jensen, i.e., that which revealed his attitude toward a death
sentence, reads as follows: MR. BUICE: Mr. Jensen? Where are you on
that? Would the fact that three people died ...? MR. JENSEN: He's
convicted of three murders? MR. BUICE: Yes. MR. JENSEN: It would be
very-it would determine-it [sic] would have to determine the case-the
case would have to determine how I'd feel exactly, but it would be
very hard for me not to vote for the death penalty because of three
murders. MR. BUICE: Well, would the fact of three murders, then,
tend to close your mind to other considerations? MR. JENSEN: Right
now it would, but it would have to be determined by the severity of
the case and what was involved in determining of the three murders.
Counsel challenged Jensen for cause on the
grounds that (1) he was a college student whose worry about missed
coursework would divert his attention, and (2) he appeared to favor
a death sentence if drugs or alcohol had contributed to the
commission of the crime. The court rejected the challenge.
We conclude that this brief voir dire exchange
provides no basis for relief. FN58 Although Jensen suggested that he
would favor a death sentence if three murders were established, he
also indicated that he could not form an opinion on the sentences
until he heard the evidence.
Given the difficulty of reviewing such
equivocal answers from the cold record, years after they were
uttered, it is obvious why we accord great deference to trial judge
determinations of juror bias. See, e.g., Wainwright v. Witt, 469
U.S. 412, 429-30, 105 S.Ct. 844, 855, 83 L.Ed.2d 841 (1985) (holding
that a trial court's determination of juror bias is a matter of
fact, to be reviewed as such under 28 U.S.C. § 2254).
The trial judge, in a superior position to
observe Jensen's credibility and demeanor, refused to excuse Jensen
for bias. We cannot say that Hightower suffered prejudice from
counsel's failure to strike Jensen peremptorily or to allege on
direct appeal that the court erred in seating him.
FN58. In support of his claim, Hightower offers
no evidence beyond the excerpted portion of Jensen's responses that
we reproduce here.
We next consider Hightower's claim as to juror
Rufus Little. Defense counsel's voir dire of Little proceeded as
follows: MS. GEORGE: ... I am going to again ask the same question
and I am going to say this with two questions. If a person has been
convicted of murder and the murder of three people, are you strongly
in favor, somewhat in favor, or somewhat opposed to the death
penalty? ... Okay, Mr. Little? MR. LITTLE: Strongly for it if it has
been proven. MS. GEORGE: If it's been proven? MR. LITTLE: Yes. ...
MS. GEORGE: If there were a conviction of three deaths [sic], three
people involved, three people had died, could you vote for a life
imprisonment, would that be severe enough punishment for you? ...
How about you, Mr. Little? MR. LITTLE: I would have to hear the
case. Three murders, you know, that's cruel, but there may be
something out of it to prove without a doubt, well then a life would-I'd
have to hear the case. ... MS. GEORGE: All right. How about you, Mr.
Little? Would you automatically vote for the death penalty if there
was a conviction of three people? MR. LITTLE: If they proved without
a doubt he did it. MS. GEORGE: You would automatically do it? MR.
LITTLE: If they proved without any doubt, based on the circumstances,
I would. But it's hard to say until I hear the whole case. MS.
GEORGE: But you did say if the person was convicted beyond a
reasonable doubt, you would automatically vote for the death penalty?
MR. LITTLE: Automatically-like I say I would automatically-like I
say I would have to hear the case. Like I say I would automatically
vote for the ... MS. GEORGE: That's all I have Your Honor.
Counsel did not (1) challenge Little for cause,
(2) exercise a peremptory strike against him, or (3) claim on direct
appeal that it was error to seat him. Again forced to review the
cold record to detect bias,FN59 we decline to grant relief. In our
view, Little's statements during voir dire, in their totality, do
not reflect a pro-death sentiment sufficient to establish prejudice.
Even as defense counsel sought to pin down his bias, Little
continually expressed that he would need to hear the whole case
before deciding on the proper punishment. We agree with the district
court that Hightower failed to show that Little's views on the death
penalty “would prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his
oath.” Id. at 424, 105 S.Ct. at 852.
FN59. Hightower produces no evidence as to Little
beyond this excerpt of his examination.
We have considered Hightower's claims and find
them to be without merit. The judgment of the district court is,
accordingly,
