Citations:

Newland v. State, 258 Ga. 172, 366 S.E.2d 689 (Ga. 1988) (Direct Appeal).
Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008) (Habeas).

Final Meal:

Newland declined a special last-meal request. Instead, he was served the regular meal tray, which consisted of chicken and rice, carrots, collard greens, rolls, bread putting and iced tea.

Final Words:

Newland expressed remorse for killing his "good friend." "I'm sorry this happened. I wish I could go back to that day. I have no grudges against anybody. I still don't remember what happened, but what happened happened." A few minutes after his final statement, he continued talking again after the death chamber's microphone had been turned off. But his words were only heard by the warden, security officers and medical staffers behind the soundproof glass window.

Georgia Department of Corrections

Newland, Robert L.
GDC ID: 0000436424
DOB: 04/1943
RACE: WHITE
GENDER: MALE
HEIGHT: 6' 00"
WEIGHT: 185
EYE COLOR: BLUE
HAIR COLOR: BLONDE
MOST RECENT INSTITUTION: GA DIAG & CLASS PRIS-PERM
CASE NO: 211846
OFFENSE: MURDER, AGG ASLT W INTNT TO RAPE, AGG ASLT
CONVICTION COUNTY: GLYNN COUNTY
CRIME COMMIT DATE: 05/30/86
RECEIVED: 08/31/1987

Robert L. Newland, 54, was sentenced to death in August 1987 in Glynn County for killing Carol Beatty, a 27-year-old woman who lived across the street from Mr. Newland and his roommate.

Mr. Newland used a pocket knife to cut Ms. Beatty, slashing her throat deep enough to cut her vocal cords and her stomach enough for her intestines to show. Ms. Beatty lived for 22 hours after the attack and with an investigator's help she was able to spell out the name of her attacker.

Mr. Newland had previously been convicted of a similar assault, but that conviction was reversed on appeal.

Georgia man executed for murdering woman in ‘86

By Greg Bluestein - Atlanta Journal Constitution

AP March 10, 2009

JACKSON, Ga. — A Georgia man was executed Tuesday for stabbing a woman neighbor to death after she spurned his sexual advances.

Robert Newland, 65, was put to death by lethal injection at the state prison at Jackson and was pronounced dead at 7:35 p.m. He was the first person executed in Georgia this year. The injection was administered at 7:20 p.m.

Newland was convicted in 1987 and sentenced to death for the slaying of Carol Sanders Beatty, a 27-year-old former state and national amateur diving champion. Authorities say Newland went to the woman’s duplex on St. Simons Island in May 1986 after a drinking binge and tried to kiss her. They say he drew a knife and stabbed her repeatedly after she refused his advances. She would die hours later, shortly after identifying Newland as the killer to police.

The Georgia Supreme Court denied a motion 6-1 Tuesday by Newland’s attorney to stay the execution on grounds the punishment was disproportionate and arbitrary. It also denied his application to appeal. The lone justice to dissent was Justice Robert Benham, who did not elaborate. The Georgia pardons board denied a separate appeal Monday to commute the sentence. The U.S. Supreme Court, Newland’s last option for reprieve, denied a stay about an hour before the execution.

Newland went to Beatty’s duplex on May 30, 1986, after a drinking binge and tried to kiss her, authorities said. When she refused his advances, scratching and slapping him, he drew a knife and slashed her neck and stabbed her repeatedly. Police found Beatty lying in her garden and rushed her to the hospital. A doctor noticed she was moving her lips to try to say something, but couldn’t pronounce the words. He summoned a detective, who asked her if she was saying “Bob.” She nodded her head. When asked the last name of her assailant, the detective ticked through the alphabet. When he reached “N” she “nodded her head vigorously,” and squeezed his hand, court documents say. She ended up spelling out “N-E-W-L-A” and when the detective asked if the last name was Newland, she nodded again and squeezed his hand.

She died hours later. Newland, meanwhile, ran to the home he shared with a girlfriend, where he washed himself off with a hose and tried hiding in a small attic space, authorities said. He was soon apprehended. He told police after his arrest he “grabbed her and I threw her down and somehow the knife came in my hand and started stabbing her.” “I was drunk, I don’t know why I did it,” he told authorities. “I had no reason for it.”

A jury found Newland guilty of murder and aggravated assault with intent to rape in August 1987 and recommended he be sentenced to death. Several rounds of state and federal appeals have since upheld the conviction and sentence.

Georgia Attorney General

PRESS ADVISORY - Wednesday, February 25, 2009

Execution Date Set For Man Convicted In Glynn County Murder

Georgia Attorney General Thurbert E. Baker offers the following information in the case against Robert L. Newland, who is currently scheduled to be executed on March 10, 2009 at 7:00pm.

Scheduled Execution

On February 25, 2009, the Superior Court of Glynn County filed an order, setting the seven-day window in which the execution of Robert L. Newland may occur to begin at noon, March 10, 2009, and ending seven days later at noon on March 17, 2009. The Commissioner of the Department of Corrections, acting pursuant to state law, then set the date and time of the execution as March 10, 2009 at 7:00pm. Newland has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.

Newland’s Crimes

The Eleventh Circuit Court of Appeals summarized the facts of the case as follows: Petitioner and Margaret Beggs, his girlfriend of four years, moved to Glynn County, Georgia in February 1984. Petitioner was self-employed as a drywall construction contractor and Beggs was employed as a social worker in a local mental health clinic. They lived in a house at 230 Broadway Street on St. Simon’s Island, across the street from Carol Sanders Beatty, who lived in a duplex at 231 Broadway Street. Over the two years that they were neighbors, Beggs and Beatty increasingly socialized with each other. Petitioner had infrequent social contact with Beatty, although they were on friendly terms.

On May 30, 1986, at approximately 4:30 p.m., petitioner and Beggs went to a local bar, the Sandpiper, where petitioner had several glasses of beer. They left the bar at around 5:15 p.m., and after purchasing Chinese take-out at Ping’s Restaurant and a bottle of vodka at a local store, they went home for dinner.

After dining and consuming several Bloody Marys, they went across the street to visit Beatty. They arrived at around 8:30 p.m., carrying the bottle of vodka and some Bloody Mary mix with them. While Beatty and Beggs talked -- mostly about the problems Beatty was having with her husband locked up in a Florida prison for dealing drugs -- petitioner and Beggs had several rounds of Bloody Marys, consuming most of the vodka in the process.

Petitioner left Beatty’s residence around 9:30-10:00 p.m., announcing that he was going home to bed because he had to get up early the next morning to bid a construction job. Beggs stayed and continued the conversation with Beatty. Petitioner went home, but did not retire for the night. Instead, he packed some clothes and other household items in his pick-up truck and drove to a pier on St. Simon’s Island, where he struck a parked vehicle and immediately fled the scene. He abandoned his pick-up truck on Forest Park Drive, several blocks from his Broadway Street residence, and headed on foot to Beatty’s residence. The owner of the vehicle petitioner had struck, Donald Sanders, had witnessed the collision and called the police. While these events were unfolding, Beggs remained at Beatty’s. She left at around 11:00 p.m. After she got home, she discovered that petitioner was not there. Neither was his truck.

Beatty was in her front yard when she and Beggs parted company. Bonnie Smith, who lived in the other half of the duplex at 231 Broadway Street, was there too. Beatty and Smith visited for a few minutes; both then retired for the night. It was approximately 11:15 p.m.

Shortly after the two women returned to their residences, petitioner entered Beatty’s backyard. Petitioner described what happened next in his confession to the police on May 31, after he had been taken into custody. He called to Beatty, asking her to come outside. Beatty came out and petitioner attempted to kiss her. She refused, and told him to go home or she would tell Beggs. Petitioner again attempted to kiss her, and she scratched and slapped him. According to his post-arrest confession to the police, he then "grabbed her and I threw her down and somehow the knife came in my hand and started stabbing her, I don’t know, I just lost [sic] out of control . . . I was drunk, I don’t know why I did it. I had no reason for it." Petitioner stabbed Beatty in the throat and the abdomen, using a pocket knife that he regularly carried. During the assault, Beatty screamed and called for help. When she collapsed, he ran home, discarding the knife as he ran, washed himself off with a hose in his backyard, put on a new pair of jeans, and entered his house.

At 11:22 p.m., Glynn County Police Department Detectives Barry Moore and James Brundage received a report of a woman screaming in the Broadway Street neighborhood. While they were responding to the call, they received a call from Bonnie Smith, who told them that a woman was screaming in her backyard, behind her residence at 231 Broadway Street. They drove to that address, heard someone run through the backyard, and gave chase. In the course of their pursuit, Brundage discovered petitioner’s pick-up truck parked nearby on Forest Drive. The truck matched the description of the vehicle involved in the hit and run Sanders had reported.

Unable to find the person they were chasing, the detectives returned to Beatty’s residence. Brundage found Beatty in the backyard, laying in the garden, and still alive. Paramedics were summoned and transported Beatty to Glynn-Brunswick Memorial Hospital. According to Dr. Irwin Berman, one of her treating surgeons, Beatty had a slash wound [in] her neck, which had exposed the entire cross section of her windpipe . . . In addition to that, she had multiple wounds of her great vessels of neck . . . There were smaller wounds of the flank . . . and a stab wound of the abdomen through which . . . some of the organs of the, of the abdomen were protruding.

After Beatty had been taken to the hospital, petitioner, dressed in jeans but without a shirt or shoes, entered his house through the backyard. Beggs was awake. She noticed scratches on his face and chest. When she asked about them, petitioner told her that he fell in some bushes on the way back from Beatty’s. Beggs then observed the flashing lights of police cars across the street, at Beatty’s, and went over to find out what had happened. She learned that Beatty had been attacked and taken to the hospital.

Beggs returned home and told petitioner that "something terrible had happened to Carol." Petitioner told her "he didn’t do it." He asked Beggs to find his truck, because he could not remember where he had left it, and attempted to crawl into a small attic space, telling Beggs he was going to hide. Beggs, increasingly distraught at petitioner’s bizarre behavior, left the house in an attempt to find the truck. She also wanted to get away from petitioner, to collect her thoughts.

Beggs drove by Beatty’s duplex for a minute or two, searched the neighborhood for petitioner’s vehicle and, failing to find it, drove to a local convenience store to purchase cigarettes. After that, she drove to the same pier petitioner had headed for earlier, to have a smoke and collect her thoughts before returning home.

At around 12:15 a.m., Dr. Berman noticed that Beatty was mouthing words, apparently in an attempt to communicate. He notified Detective Greg McMichael, who was standing by, and McMichael came to her bedside. The Georgia Supreme Court, in Newland v. State, related what followed: McMichael . . . asked the victim who had attacked her and read her lips to say the name, ‘Bob.’ He then sounded out the name, ‘Bob’ and asked the victim if this was correct. She nodded her head affirmatively. When asked the last name of her assailant, the victim mouthed a word McMichael could not understand. He then asked the victim if the name began with an ‘A.’ She shook her head negatively. McMichael proceeded in this manner through the alphabet until he asked about the letter ‘N.’ The victim ‘nodded her head vigorously’ and squeezed his hand. By this procedure McMichael was able to elicit affirmative shakes of the head from the victim to the letters, ‘N E W L A.’ McMichael then asked the victim if the last name was ‘Newland.’ The victim ‘nodded her head again very vigorously,’ and squeezed McMichael’s hand. 258 Ga. 172, 366 S.E.2d 689, 692-93 (Ga. 1988).

In like manner, Beatty was able to give McMichael petitioner’s phone number and the name of the street where he lived. Relying on this information, the Glynn County Police Department dispatched several officers, including Detectives Bill Williams and Dennis Krauss, to petitioner’s residence. They arrived at 1:10 a.m. and found petitioner sitting up in his bed and pulling on a pair of jeans, as if he had just awakened. They placed petitioner under arrest for aggravated assault and transported him to the police department headquarters in nearby Brunswick.

Beggs came home shortly after the police left with petitioner. Several officers were still there, and they asked her, and she agreed, to accompany them to the headquarters. She was not under arrest. Newland v. Hall, 527 F.3d 1162, 1166-1169 (2008). (footnotes omitted).

The Trial (1986-1987)

Newland was indicted in the Superior Court of Glynn County, Georgia on June 11, 1986, for the murder and aggravated assault with the intent to rape of Carol Sanders Beatty. On August 14, 1987, a jury found Newland guilty of murder and aggravated assault with intent to rape. The jury’s recommendation of a death sentence was returned on August 15, 1987.

The Direct Appeal (1988)

The Georgia Supreme Court unanimously affirmed Newland’s convictions and death sentence on April 14, 1988. Newland v. State, 258 Ga. 172, 366 S.E.2d 689 (1988). Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on November 28, 1988. Newland v. Georgia, 488 U.S. 975, 109 S.Ct. 514 (1988).

State Habeas Corpus Petition (1991-2003)

Newland, represented by attorneys from the Georgia Resource Center and Dykema Gossett, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on January 2, 1991. Newland filed an amended petition for writ of habeas corpus on November 12, 1997. An evidentiary hearing was held on March 3-4, 1998. On December 20, 2001, the state habeas corpus court entered an order denying Newland state habeas relief. Newland’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on October 1, 2002. Newland then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on May 5, 2003. Newland v. Turpin, 538 U.S. 1015 (2003).

Federal Habeas Corpus Petition (2003-2005)

Newland, represented by attorneys from the Georgia Resource Center and Dykema Gossett, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia, Brunswick Division, on September 19, 2003. Newland filed an amendment to his petition for writ of habeas corpus on March 11, 2004. On January 27, 2005, the United States Magistrate Judge entered his Report and Recommendation recommending that Petitioner’s habeas corpus petition be denied. On June 15, 2005, the United States District Judge adopted the Report and Recommendation and denied the petition for a writ of habeas corpus. The district court denied a motion to alter and amend judgment on August 31, 2005. The district court denied Newland a certificate of appealability on November 2, 2005.

11th Circuit Court of Appeals (2005-2008)

The Eleventh Circuit granted Newland’s application for certificate of appealability on November 29, 2005. The case was orally argued before the Eleventh Circuit on June 8, 2006. On May 14, 2008, the Eleventh Circuit issued an opinion which denied relief. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008). Newland filed a petition for panel rehearing, which was denied on July 9, 2008.

United States Supreme Court (2008-2009)

Lengthy, ongoing appeals frustrate courts and stall relief for hurting families

By Teresa Stepzinski - Jacksonville.com

Sunday, Mar. 15, 2009

BRUNSWICK - The execution last week of a man who murdered a St. Simons Island mother brought a measure of relief to her family after nearly 22 years of uncertainty as his case moved through the court system.

Robert L. Newland went to Georgia's Death Row on Aug. 31, 1987, for murdering his neighbor, Carol Sanders Beatty, a 27-year-old mother who refused his sexual advances. His appeals included a decade before a state judge who ultimately rejected Newland's assertion that his conviction and death sentence violated the state constitution.

The case isn't unusual. Known as state habeas corpus petitions, those death penalty appeals routinely go on for years in Georgia under a system deemed woefully inadequate by attorneys and victims' families. "It's dragged out. It takes longer and longer and there's no relief in sight," said Gene Dixon of Waycross, whose daughter was slain in a triple murder 16 years ago.

Charlye Dixon, 18, her fiance, 19-year-old Jason Hampton, and Teresa Gail Taylor, a 40-year-old nurse, were killed by Billy Daniel Raulerson Jr. during the 1993 Memorial Day weekend. On Death Row since 1996, Raulerson, now 39, is appealing his three murder convictions and death sentences. The Georgia Supreme Court unanimously affirmed the death sentences in 1997.

But Raulerson's next round of appeals, to a state habeas judge, went on for eight years before being denied in 2005. His most recent appeal is before Senior U.S. District Judge Anthony Alaimo in Brunswick. "I hope I live long enough to see his death sentence carried out," Dixon said. "At some point, the state should take it on themselves, say enough is enough, and carry out the jury's verdict."

Raulerson is among 65 inmates who have been on Death Row for 13 years or more. Most are in varying stages of the appellate process.

Legislation rejected

Efforts to shorten the state habeas process in death penalty cases failed last week in the General Assembly. The first, authored by state Rep. David Ralston, R-Blue Ridge, would have established time frames for each step of the process. It also would have required judges to rule within 180 days after receiving all the legal briefs and evidence in appeals.

A judge failing to meet the deadline would have been forced to send a report to the circuit's chief judge explaining the delay, followed by an updated status report every 30 days. Ralston, a lawyer, also co-sponsored a bill by state Rep. Steve Davis, R-McDonough, that mandated habeas appeals be filed within a year after the imposition of a death sentence. Defendants now have up to four years.

Both of those bills died in committee. So did an unrelated Senate bill that would have made it easier for defendants, including Raulerson, to use the defense of "guilty but mentally retarded" in criminal cases. Sponsored by Sens. Preston Smith, R-Rome, and Seth Harp, R-Midland, the measure was intended to lower Georgia's legal standard for mental retardation. It would have lowered the burden of proof to "a preponderance of the evidence" to show a person is "guilty but mentally retarded."

The current standard of "mentally retarded beyond a reasonable doubt" has been upheld by the U.S. Supreme Court and Georgia Supreme Court. If the Senate bill had passed into law, Raulerson and others who used the "guilty but mentally retarded" defense would have been entitled to new trials. It's already been proven that Billy Raulerson is not retarded," said Dixon, who characterized Raulerson's ongoing claim of mental retardation as unfounded and a stall tactic.

No legislation this session addressed the shortage of habeas judges, which attorneys assert is a major problem bogging down the system. Because habeas appeals are a regular part of a judge's normal duties, the state doesn't allocate any extra funding for handling those cases, said Chris Schrimpf, a spokesman for Gov. Sonny Perdue. "It's part of the job for them," Schrimpf said.

Legal logjam

"Ideally, we need a certain number of judges trained specifically to handle habeas cases, and that would be the only cases they hear," said District Attorney Rick Currie, president of the District Attorney's Association of Georgia. Habeas appeals now are handled by judges from throughout Georgia who must travel to Death Row in Jackson for the cases. Those judges must fit the cases in between their normal case load, Currie said.

Currie, of the Waycross Judicial Circuit, prosecuted Raulerson. Another circuit death penalty case, that of James Allyson Lee, who murdered his stepmother in 1994, has been waiting almost five years for a judge to rule on his habeas appeal, Currie said. "Right now, judges are overwhelmed with cases in their own circuits. Then they have to take on a death penalty appeal case, which is very intensive and time-consuming," he said.

Having a group of judges just for those appeals would alleviate the "bottleneck" of habeas cases clogging the system, said District Attorney Stephen Kelley of the Brunswick Judicial Circuit. "It would streamline and speed up the process as well as provide consistency in rulings," Kelley said. "The defendants wouldn't have to wait so long for their appeal to be heard."

No death penalty state has a group of judges assigned solely to hear habeas appeals, according to the Death Penalty Information Center in Washington, D.C. The bottom line in Georgia is money, Currie and Kelley said. Georgia doesn't set aside any funding for state habeas judges. Because of the bad economy and continuing state budget crisis, that situation isn't going to change any time soon, Currie said.

"Realistically, there's no hope of habeas cases speeding up while Georgia continues cutting back on state judiciary budgets," Currie said. Until then, Dixon and other families like his wait. They have no other option.

Southeast Georgia Death Row Inmates

Georgia's Death Row has 105 inmates, including one woman. Eight were convicted and condemned in the adjacent Brunswick and Waycross judicial circuits, which include 11 Southeast Georgia counties. For the Brunswick Judicial Circuit (Appling, Camden, Glynn, Jeff Davis and Wayne counties):

- Michael A. Cohen, now 51, of Brunswick: Since Dec. 23, 1986, for the 1985 fatal shooting of a Brunswick man during a burglary.

- Warren Deon King, now 32, of Surrency: Since Oct. 19, 1998, for the 1994 fatal shooting of an Appling County woman during a convenience store robbery.

- Jimmy Fletcher Meders, now 47, of Brunswick: Since May 5, 1989, for the 1987 fatal shooting of a Glynn County convenience store clerk during an armed robbery.

For the Waycross Judicial Circuit (Bacon, Brantley, Charlton, Coffee, Pierce and Ware counties):

- Ashley Lyndol Jones, now 35, of Waycross: Since June 19, 1995, for the 1993 sledgehammer beating death of a disabled Ware County man.

- James Allyson Lee, now 34, of Hilliard: Since June 23, 1997, for the 1994 fatal shooting of his stepmother in Charlton County.

- Billy Daniel Raulerson Jr., now 39, of Waycross: Since March 19, 1996, for the 1993 triple slaying of a young Ware County couple and a nurse.

- William Sallie, now 42, of Peoria, Ill.: Since May 2, 1991, for the 1990 fatal shooting of his former father-in-law in Bacon County. Sallie also wounded his former mother-in-law and kidnapped his ex-wife and her sister in the attack.

Robert L. Newland and Margaret Beggs, his girlfriend of four years, moved to Glynn County, Georgia in February 1984. Newland was self-employed as a drywall construction contractor and Beggs was employed as a social worker in a local mental health clinic. They lived in a house at 230 Broadway Street on St. Simon’s Island, across the street from Carol Sanders Beatty, who lived in a duplex at 231 Broadway Street. Over the two years that they were neighbors, Beggs and Carol increasingly socialized with each other. Newland had infrequent social contact with Carol, although they were on friendly terms.

On May 30, 1986, at approximately 4:30 p.m., Newland and Beggs went to a local bar, the Sandpiper, where Newland had several glasses of beer. They left the bar at around 5:15 p.m., and after purchasing Chinese take-out at Ping’s Restaurant and a bottle of vodka at a local store, they went home for dinner.

After dining and consuming several Bloody Marys, they went across the street to visit Carol. They arrived at around 8:30 p.m., carrying the bottle of vodka and some Bloody Mary mix with them. While Carol and Beggs talked – mostly about the problems Carol was having with her husband locked up in a Florida prison for dealing drugs – Newland and Beggs had several rounds of Bloody Marys, consuming most of the vodka in the process. As Carol was telling Beggs about her situation, Carol’s husband called from the prison, and talked to Carol and briefly to Newland. Newland left Carol’s residence around 9:30-10:00 pm, announcing that he was going home to bed because he had to get up early the next morning to bid a construction job.

Beggs stayed and continued the conversation with Carol. Newland went home, but did not retire for the night. Instead, he packed some clothes and other household items in his pick-up truck and drove to a pier on St. Simon’s Island, where he struck a parked vehicle and immediately fled the scene. He abandoned his pick-up truck on Forest Park Drive, several blocks from his Broadway Street residence, and headed on foot to Carol’s residence. The owner of the vehicle Newland had struck, Donald Sanders, had witnessed the collision and called the police. While these events were unfolding, Beggs remained at Carol’s. She left at around 11:00 pm. After she got home, she discovered that Newland was not there. Neither was his truck. Carol was in her front yard when she and Beggs parted company.

Bonnie Smith, who lived in the other half of the duplex at 231 Broadway Street, was there too. Carol and Smith visited for a few minutes; both then retired for the night. It was approximately 11:15 pm. Shortly after the two women returned to their residences, Newland entered Carol’s backyard.

Newland described what happened next in his confession to the police on May 31, after he had been taken into custody. He called to Carol, asking her to come outside. Carol came out and Newland attempted to kiss her. She refused, and told him to go home or she would tell Beggs. Newland again attempted to kiss her, and she scratched and slapped him. According to his post-arrest confession to the police, he then “grabbed her and I threw her down and somehow the knife came in my hand and started stabbing her, I don’t know, I just lost out of control . . . I was drunk, I don’t know why I did it. I had no reason for it.” Newland stabbed Carol in the throat and the abdomen, using a pocket knife that he regularly carried. During the assault, Carol screamed and called for help. When she collapsed, he ran home, discarding the knife as he ran, washed himself off with a hose in his backyard, put on a new pair of jeans, and entered his house.

At 11:22 pm, Glynn County Police Department Detectives Barry Moore and James Brundage received a report of a woman screaming in the Broadway Street neighborhood. While they were responding to the call, they received a call from Bonnie Smith, who told them that a woman was screaming in her backyard, behind her residence at 231 Broadway Street. They drove to that address, heard someone run through the backyard, and gave chase. Unable to find the person they were chasing, the detectives returned to Carol’s residence. Brundage found Carol in the backyard, laying in the garden, and still alive. Paramedics were summoned and transported Carol to Glynn- Brunswick Memorial Hospital.

According to Dr. Irwin Berman, one of her treating surgeons, Carol had a slash wound in her neck, which had exposed the entire cross section of her windpipe ... In addition to that, she had multiple wounds of her great vessels of neck ... There were smaller wounds of the flank ... and a stab wound of the abdomen through which ... some of the organs of the, of the abdomen were protruding. After Carol had been taken to the hospital, Newland, dressed in jeans but without a shirt or shoes, entered his house through the backyard.

Beggs was awake. She noticed scratches on his face and chest. When she asked about them, Newland told her that he fell in some bushes on the way back from Carol’s. Beggs then observed the flashing lights of police cars across the street, at Carol Beatty’s, and went over to find out what had happened. She learned that Carol had been attacked and taken to the hospital. Beggs returned home and told Newland that “something terrible had happened to Carol.” Newland told her “he didn’t do it.” He asked Beggs to find his truck, because he could not remember where he had left it, and attempted to crawl into a small attic space, telling Beggs he was going to hide. Beggs, increasingly distraught at Newland’s bizarre behavior, left the house in an attempt to find the truck. She also wanted to get away from Newland, to collect her thoughts. Beggs drove by Carol’s duplex for a minute or two, searched the neighborhood for Newland’s vehicle and, failing to find it, drove to a local convenience store to purchase cigarettes. After that, she drove to the same pier Newland had headed for earlier, to have a smoke and collect her thoughts before returning home.

At around 12:15 a.m., Dr. Berman noticed that Carol was mouthing words, apparently in an attempt to communicate. He notified Detective Greg McMichael, who was standing by, and McMichael came to her bedside. McMichael asked the victim who had attacked her and read her lips to say the name, ‘Bob.’ He then sounded out the name, ‘Bob’ and asked the victim if this was correct. She nodded her head affirmatively. When asked the last name of her assailant, the victim mouthed a word McMichael could not understand. He then asked the victim if the name began with an ‘A.’ She shook her head negatively. McMichael proceeded in this manner through the alphabet until he asked about the letter ‘N.’ The victim ‘nodded her head vigorously’ and squeezed his hand. By this procedure McMichael was able to elicit affirmative shakes of the head from the victim to the 10 letters, ‘N E W L A.’ McMichael then asked the victim if the last name was ‘Newland.’ The victim ‘nodded her head again very vigorously,’ and squeezed McMichael’s hand. In like manner, Carol was able to give McMichael Newland’s phone number and the name of the street where he lived.

Relying on this information, the Glynn County Police Department dispatched several officers, including Detectives Bill Williams and Dennis Krauss, to Newland’s residence. They arrived at 1:10 am and found Newland sitting up in his bed and pulling on a pair of jeans, as if he had just awakened. They placed Newland under arrest for aggravated assault and transported him to the police department headquarters in nearby Brunswick. Beggs came home shortly after the police left with Newland. Several officers were still there, and they asked her, and she agreed, to accompany them to the headquarters. She was not under arrest. At some point early that morning, on May 31, the police obtained a search warrant for Newland’s residence. They found a blood-stained shirt and a pair of socks on the back porch, and a pair of blood-stained blue jeans in a shed in the backyard.

At 1:30 am, Detective Williams questioned Newland in an interview room at the police department headquarters. Williams was the only officer present. Newland smelled of alcohol but his speech was not impaired. Williams began by informing Newland of his Miranda rights. He then asked Newland what he had done the previous evening. Newland said that his truck had broken down early in the afternoon and that he had left it on Forest Park Drive. Later that afternoon, he had gone to the Sandpiper bar with Beggs, had three glasses of beer, picked up Chinese food at Ping’s Restaurant, and gone home for dinner. After dinner, they went over to Carol’s place, where he and Beggs had several Bloody Marys. At around 8:30 p.m., they left Carol’s to go home. On the way, he stumbled, because he had been drinking “quite a bit,” and fell in some bushes, which accounted for the scratches on his face.

Once home, he went to bed and fell asleep. Beggs awakened him to say that the police were at Beatty’s. He told her that this was the neighbor’s problem and went back to sleep. He was sleeping when the police arrived to arrest him. Williams asked Newland if he had gotten drunk that evening; he replied that he had been drinking, but was not drunk. Newland asked Williams why he was being questioned – whether he had been charged with anything. Williams gave no answer. The interrogation lasted about half an hour. Around 2:00 a.m., the police had his blood alcohol content (“BAC”) tested. Officer Richard Strickland performed the test, which revealed a .12 percent BAC. Newland was placed in a holding cell following the test. While Newland was submitting to the BAC test, Williams began questioning Beggs, who had arrived at the headquarters (as Williams was questioning Newland).

This interrogation began approximately at 2:00 a.m. and was broken into two sessions, which combined lasted no more than two hours. Williams began the first session by informing Beggs that she was not under arrest. He then asked her to tell him what had transpired the previous evening up to the moment she arrived at the department headquarters. Beggs’s account of the first part of the evening was consistent with the account Newland had provided Williams. She stated that they had gone to a local bar, picked up Chinese food, gone home to eat, and then gone over to Carol Beatty’s. At this point, her account began to diverge from Newland’s. She stated that Newland left Carol’s before she did and that when she returned home, she saw Newland lying in bed. Moments later, she saw police lights flashing at Carol’s and went there to find out what had happened. She learned that Carol had been stabbed and hastened home to tell Newland. He was asleep and did not respond. She went back to Carol’s because she was concerned about her friend and wanted to learn more. After a brief conversation with a police officer, she drove to a local convenience store to purchase cigarettes and from there to the St. Simon’s Island pier. Distraught about Carol’s situation, she stayed at the pier for a few minutes, smoking and trying to calm down. She returned home only to find the police waiting. Williams asked her if she had observed any scratches on Newland, and she said that she had not. Williams confronted Beggs with the inconsistencies between her account and Newland’s. He pointed out the contradictions concerning whether they returned from Carol’s together or separately and whether Newland had scratches on his face. Williams asked her if she was lying; she denied it.

The first session ended with Williams telling Beggs to sit down on a couch outside the interview room and “think about everything again,” warning her that she would “go down with" Newland if she was trying to cover up for him. A short time later, Williams resumed the questioning. Beggs admitted that she had not actually seen Newland at home when she returned from Carol’s but had assumed he was there, telling Williams, “that’s the part I covered up.” She explained that after she returned to her house, she saw the flashing police car lights at Carol’s, walked over there and then back home, at which point she saw Newland in the bedroom and they talked. She admitted that during this conversation, she saw scratches on his face and asked him what had happened. He said he had fallen. Williams challenged Beggs’s account and told her that Carol had identified Newland as her attacker. He asked Beggs if she was sure about her story and reminded her that “this is your friend laying out there in the garden.” Beggs, reconsidering, told Williams that she had not seen Newland at home – after she crossed the street to inquire about the police car lights. He did not arrive until later, when he entered the house from the backyard. It was then that they talked about the scratches on his face. Williams asked her about the knife used in the attack on Carol. He accused her of disposing of the knife to protect Newland. Beggs denied doing anything with the knife.

The interrogation ended around approximately 3:30 a.m. Beggs was taken to a waiting area at the police headquarters where she sat for the next two hours. At 3:50 a.m., Williams resumed questioning Newland after advising him of his Miranda rights. Williams began by asking Newland to recount again the events of the previous evening. Newland repeated what he had told Williams earlier, but stated that after he left Carol Beatty’s, he drove off in his pick-up truck to go to the store, but the truck had “died” on Forest Park Drive. He left the truck there, returned home, and went to sleep. Beggs awakened him later. Williams asked Newland whether his truck died during the evening hours or in the afternoon, and Newland stated that it died that evening. Once again Newland asked Williams why he was being questioned. Williams said he was being questioned because he had attacked Carol Beatty, and confronted him with the inconsistencies between his story and Beggs’s. He told Newland that a bloody shirt and pair of pants had been found at his residence. Newland responded to Williams’s accusation that he had attacked Beatty by stating, “I have no idea, no remembrance, if I did anything like that.” Newland reinforced this statement by repeatedly saying that he had no memory of attacking Carol Beatty. He attributed this to the quantity of vodka he had consumed; he was not used to consuming that amount of alcohol.

Williams challenged Newland’s no-memory claim as inconsistent with the rest of Newland’s account of the evening. He asked Newland how he could remember falling in the bushes and conversing with Beggs after they got home, but not remember the attack. Although he had previously told Williams about his conversation with Beggs, he said he could not recall it. He could not explain why he remembered falling in the bushes. Williams attempted to prod Newland’s memory by confronting Newland with the possibility that “if that girl dies, you [will be] charged with murder” and Beggs will be charged as an accessory to murder. Their first exchange involving Beggs went as follows: WILLIAMS: You remember enough to lie about it. You remember enough to lie about it and you don’t even care enough about Peggy, her ass is going to jail. Newland: I do care about Peggy. WILLIAMS: . . . her ass is going to jail, too. Newland: For what? WILLIAMS: For accessory. Newland: Accessory to what? WILLIAMS: To murder. In their second exchange about Beggs, Williams was more specific about the basis for potential charges against Beggs: Newland: I was in my bed when y’all came. WILLIAMS: Yea, but you hadn’t been asleep. You hadn’t been in bed very long at all, I know that for a fact. Well, I think Peggy carried that knife off and hid it for you. Because the knife has disappeared. Newland: Are you thinking that or do you know that? WILLIAMS: No, I think that she, you know, and my boss wants to charge her as an accessory, so you know, if you know where the knife is, if you don’t want her to go to jail . . . Newland: . . . I have no idea, I have no idea, I’m just being straight with you, I just don’t know. The prospect of Beggs being charged as an accessory to murder did not cause Newland to alter his account of the evening; he continued to claim that he did not remember attacking Carol Beatty.

The interrogation ended at approximately 5:00 a.m. A short time after Newland’s second interrogation ended, Williams escorted Newland to a rest area within the headquarters building, where Newland was allowed to speak with Beggs in Williams’s presence. Their conversation lasted less than ten minutes. Newland told Beggs that he could not remember what had happened that evening. After this, Beggs returned to a waiting area.

At around 6:00 am, the police informed her that she could leave, and a sister picked her up at around 6:20 am. During the interim, Newland was taken to the Glynn-Brunswick Hospital, where his blood was drawn at 6:55 am for its BAC and blood type. The police then transported Newland to the Glynn County Detention Center. Later in the morning, the Detention Center contacted a local mental health hospital that provided emergency psychiatric services for the Center and requested that someone evaluate Newland. Frederick Dodd, Jr., Ph.D., a psychiatric social worker, who was on-call, met with Newland for roughly an hour. Newland appeared to Dodd to be “extremely tearful,” “pretty agitated,” and “very confused.” At Dodd’s request, the Detention Center placed Newland on suicide watch. Police officers brought Beggs back to the police headquarters around 9:00 a.m., where she was questioned for the next several hours. At noon, she was arrested for aggravated assault and taken to the Detention Center.

At 9:35 pm, on May 31, Carol Beatty died from excessive blood loss caused by the injuries she had suffered. The following morning, June 1, at around 10:00 am, Detectives Krauss and Putnam went to the Detention Center in order to inform Newland that Carol Beatty had expired and that he was now being charged with murder. Newland was escorted from his cell out to a holding cell to meet with the detectives. Before Detective Krauss began speaking to Newland, Newland stated: “I just want to plead guilty and get out of town.” Krauss instructed Newland not to say anything else and advised him of his Miranda rights. Newland signed a form waiving those rights. Krauss then asked Newland to tell him what happened the night of May 30. Newland, despite his expressed desire to plead guilty, said nothing inculpatory. Instead, he told Krauss that he did not remember assaulting Carol and did not want to continue talking. Krauss informed Newland that Carol had died and that he was being charged with murder.

Newland became upset and started to cry, but did not make any inculpatory statements. Since Newland had stated he did not wish to continue talking, Krauss asked that he be taken back to his cell. As Newland was being escorted out of the holding cell, he asked Krauss about Beggs’s status. Krauss told him that Beggs was in the Detention Center and that he was about to inform her that she also was being charged with murder. Newland then confessed to killing Carol Beatty. Newland stated that Beggs was not with him when he went to Carol Beatty’s backyard the night of May 30. According to Krauss, Newland said that he “tried to kiss her that, that she pushed him away, and they got into a struggle, and he got very angry about it. He . . . hit her and then threw her to the ground. He . . . pulled out his knife and just started cutting her.” Krauss asked him where the knife was, and he said he could not remember. Newland cried as he recounted the assault and expressed his remorse. The confession, including Krauss’s questions, lasted for ten to fifteen minutes. Krauss informed Williams of Newland’s confession.

Because the confession had not been recorded, Williams decided to visit Newland to have him repeat his confession. Accompanied by Detective McMichael and armed with a recorder, he went to the Detention Center to speak with Newland. At 1:05 p.m., Williams and McMichael spoke with Newland in an interview room. Williams informed Newland of his Miranda rights, and Newland signed a waiver-of-rights form. Newland again confessed to the murder. He also stated several times that he lost control and attacked Carol Beatty because he was intoxicated. He explained that after stabbing Carol, he ran home, washed himself off in his backyard, changed clothes, and then entered the house, where he spoke with Beggs. She asked him what had happened and how his face had gotten scratched. He told her nothing had happened. “She went over next door, the next thing I remember I was being arrested.” He claimed that he did not remember getting into an accident with his pick-up truck and what he had done with the knife. Newland expressed remorse throughout the interrogation.

On June 3, Beggs, now represented by counsel, gave an affidavit to the police describing Newland’s behavior on May 30 – 31. In exchange for the affidavit, the State reduced her charge from murder to giving a false statement to law enforcement officials. And that charge was eventually dropped. Carol was a former state and national diving champion.
 

Georgians for Alternatives to the Death Penalty

GFADP.org

Robert Newland grew up in Springfield, Ohio, in extreme poverty, raised by violently alcoholic parents. Bob’s mother consumed alcohol throughout her pregnancy with Bob, and was drunk almost every day of her adult life. When drunk, she was extremely violent and inflicted daily beatings on Bob. Bob sometimes tried to escape the misery of his home life by staying with his uncle Clarence. His nightmare continued when his uncle sexually abused Bob repeatedly starting around age 12. Bob had nowhere to turn, so he turned to alcohol. His school records document a 12-point drop in IQ from the 7th to the 10th grades, corresponding to the onset of heavy alcohol abuse when he was about 12 years old.

Bob’s home life got so bad that he finally ran away from home at age 16, never to return. He embarked on a life of constant movement – and heavy abuse of alcohol and drugs. On his own in the world, Bob took up carpentry to support himself. Bob suffered several serious head injuries while working on construction projects and also in a severe car accident. A neuropsychologist and neurologist found that he suffered significant brain damage from these injuries, exacerbated by his extensive abuse of alcohol and drugs. These injuries, while they do not render him unable to distinguish right from wrong, do impair his judgment and impulse control, particularly when under the influence of hard alcohol.

By the early 1980s, Bob had settled in St. Simon’s Island, Georgia, where he lived with his common law wife, Peggy, a social worker. With Peggy’s help, Bob minimized his drug and alcohol use. However, one night in the summer of 1986, he relapsed, consuming a large amount of vodka. His neighbors and his wife Peggy testified that on the night of the crime he was extremely drunk and barely making sense. Police noted Bob was slurring his speech and that he reeked of alcohol when he was arrested.

After his arrest, Bob expressed deep remorse for the murder of Ms. Beatty, a woman he knew as a kind friend and neighbor. At his trial, he testified to his remorse and disbelief that he could have harmed this person. However, the jury heard nothing about Bob’s past or his mental health problems because his attorneys made no effort to investigate his life for mitigating evidence. The reason the attorneys gave for not investigating was that Bob had asked them not to trouble his family or involve them in his case. It is this allegation that has defeated Bob’s legal claims of ineffective assistance of counsel.

People who knew Bob when he was sober uniformly describe him as a kind and generous person. Since his imprisonment in 1986, Bob has had a spotless disciplinary record. He has consistently expressed remorse for his crime.

Newland v. State, 258 Ga. 172, 366 S.E.2d 689 (Ga. 1988) (Direct Appeal).

Defendant was convicted in the Superior Court, Glynn County, A. Blenn Taylor, Jr., J., of malice murder and aggravated assault with intent to rape, and was sentenced to death. Defendant appealed. The Supreme Court, Gregory, J., held that: (1) evidence was sufficient to support defendant's conviction of malice murder and aggravated assault with intent to rape; (2) photographs depicting victim's wounds following tracheotomy, including sutures made during surgery, were properly admitted; and (3) even if testimony of police officer concerning victim's nonverbal identification of defendant was erroneous, error was harmless. Affirmed.

GREGORY, Justice.

The defendant, Robert L. Newland, was convicted of malice murder and aggravated assault with intent to rape Carol Sanders Beatty. The jury found the murder was committed while the defendant was engaged in the commission of an aggravated battery, OCGA 17-10-30(b)(2), and that the offense of murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture and an aggravated battery to the victim, and depravity of mind of the defendant, OCGA § 17-10-30(b)(7). The jury recommended that the defendant be sentenced to death. The trial court sentenced the defendant to twenty years for the conviction of aggravated assault with intent to rape, to run consecutively to the death sentence.FN1

FN1. The defendant was tried August 10 through August 15, 1987. The jury returned its verdict as to the sentence of death on August 15, 1987. The defendant's motion for new trial was denied on September 2, 1987. The case was docketed in this court on December 4, 1987, and orally argued to this court on February 8, 1988.

The evidence at trial showed that on May 30, 1986, the defendant and Peggy Beggs, with whom he resided, had “two or three drinks” before dinner, then went to visit the victim who lived across the street from them. There they shared a bottle of vodka with the victim. Beggs testified that the defendant left the victim's home about an hour before Beggs did. Beggs thought that the defendant had gone to their home because he had too much to drink, but when she returned home he was not there. The defendant arrived a short time later. He did not have on a shirt and was covered in scratches. The defendant told Beggs he had fallen in some bushes. When Beggs went to get some ointment for the defendant she noticed police vehicles across the street at the victim's house. Beggs investigated and learned that the victim had been attacked with a knife. She returned to her home and told the defendant “something terrible” had happened to the victim. The defendant responded by saying his truck was missing and he did not know where it was. Beggs testified that the defendant's behavior was “unusual,” and she left the house because she did not want to be around him. When Beggs came home the police were there. They arrested her along with the defendant, first charging them with aggravated assault, and later, with murder after the victim died. FN2

FN2. The murder charge against Beggs was later reduced to a charge of giving false statements during a police investigation.

Beggs testified that the defendant always carried a small pocket knife on his person. The defendant initially gave two statements to police in which he denied knowing anything about the attack on the victim. After he learned that Beggs was to be charged with the murder of the victim, he announced his desire to give an additional statement to police, maintaining that Beggs had nothing to do with the crime. The defendant stated he remembered being with Beggs at the victim's home, but could not recall what happened after he left them there. He remembered returning to the victim's house and calling the victim out into the back yard. The defendant told the victim he wanted to kiss her. “I tried to make a move on her, and then she pushed me away, and we got in a fight and she scratched me and I went crazy....” The victim said she would tell Beggs if the defendant did not leave her alone. The defendant stated he again attempted to kiss her. He said, “I grabbed her and I threw her down and somehow the knife came in my hand and started stabbing her.... I had no reason for it ... I just went crazy. She didn't do anything to me.” The defendant stated that he then went home, hosed himself off in his back yard, changed into some clothes he had stored in the shed and went to bed. The defendant told police he had consumed three beers and “the better part of over a half bottle of vodka,” and believed the influence of alcohol caused him to kill the victim. He stated he used a pocket knife to kill her, and had thrown it away, but could not remember where. The murder weapon was never recovered.

The victim suffered four slash wounds to the throat including a four-inch gash which completely exposed her windpipe and left her unable to speak. The victim had a number of stab wounds to the abdominal area which exposed her intestines. A police officer who observed the victim at the hospital testified her face was so caked with blood he could not tell what she looked like. Emergency surgery was performed and the victim lived for 22 hours before succumbing to death due to the loss of blood.

Forensic evidence showed that the defendant's clothes bore blood stains which matched the victim's blood type. The victim had human skin scrapings under her fingernails, but of an amount too small to type. A police officer testified that at the time of arrest the defendant was scratched “pretty bad” on his chest, arms and face.

2. The defendant argues that the evidence does not support his conviction of malice murder. We hold that a rational trier of fact could have determined beyond a reasonable doubt from the evidence recited above that the defendant is guilty of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 561 (1979).

2. The defendant complains that the trial court should have granted his motion for directed verdict as to the charge of aggravated assault with intent to rape. We do not agree. There was evidence from which the jury could have determined beyond a reasonable doubt that the defendant is guilty of aggravated assault with intent to rape. Jackson v. Virginia, supra; Humphrey v. State, 252 Ga. 525(1), 314 S.E.2d 436 (1984).

3. Under the Unified Appeal Procedure this court is charged with the duty to “review each of the assertions of error timely raised by the defendant during the proceedings of the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court.” 252 Ga. A-28 (1984). Our review of the record shows that the defendant objected at trial to the admission of photographs taken of the victim's throat wounds after an emergency tracheotomy was performed in an attempt to save her life. Due to the urgency of surgery there was no opportunity to take photographs of the victim's wounds prior to the tracheotomy. The photographs admitted in evidence incidentally depicted sutures of the throat wounds made during surgery. The defendant objected to the photographs under Brown v. State, 250 Ga. 862, 867, 302 S.E.2d 347 (1983), because the wounds had been “changed by authorities.” The trial court conducted a hearing on the admissibility of the photographs in which medical personnel testified that because the wounds had been closed, they were less “grotesque” following the surgery than they had been prior to the surgery. The trial court then admitted the photographs to identify and show the location of the wounds. The defendant did not raise this issue on appeal.

We hold that the trial court did not err in admitting the photographs for the purposes stated. While there was an alteration of the wounds “by authorities,” this was done in an attempt to save the victim's life. Our concern in Brown, supra, was to prevent photographs depicting the mutilation of the victim's body during an autopsy from being admitted in evidence unless “necessary to show some material fact which becomes apparent only because of the autopsy.” 250 Ga. at 867, 302 S.E.2d 347. In Heard v. State, 257 Ga. 1, 354 S.E.2d 115 (1987), an emergency tracheotomy was performed in an attempt to save the victim's life. The state offered in evidence photographs which showed powder burn marks on the victim's ear resulting from a gunshot wound. The incision made during the tracheotomy was clearly visible in these photographs, and we held that since the photographs could have been cropped, the admission of photographs of this surgical incision was gratuitous and error under Brown.FN3 In the case before us the concerns of Brown and Heard are not present. The undisputed evidence shows that the alteration to the wound was made in an attempt to save the victim's life, and left her in a less “grotesque” state than did the defendant's attack. Under these circumstances the trial court did not err in admitting the photographs to show the location and identity of the victim's wounds.

FN3. We held, however, that the error was harmless because of the overwhelming evidence against the defendant.

4. The defendant appeals the denial of his motion in limine to exclude the testimony of police officer, Greg McMichael, on the ground that it was hearsay. A doctor who treated the victim testified that he summoned McMichael to the victim's bedside when it became apparent she was attempting to communicate something. As stated above, the attack left the victim unable to speak. At the hearing on the motion in limine, McMichael testified he asked the victim who had attacked her and read her lips to say the name, “Bob.” He then sounded out the name, “Bob” and asked the victim if this was correct. She nodded her head affirmatively. When asked the last name of her assailant, the victim mouthed a word McMichael could not understand. He then asked the victim if the name began with an “A.” She shook her head negatively. McMichael proceeded in this manner through the alphabet until he asked about the letter “N.” The victim “nodded her head vigorously” and squeezed his hand. By this procedure McMichael was able to elicit affirmative shakes of the head from the victim to the letters, “N E W L A.” McMichael then asked the victim if the last name was “Newland.” The victim “nodded her head again very vigorously,” and squeezed McMichael's hand.

The state urged the admissibility of this testimony under both the dying declaration exception and the res gestae exception to the hearsay rule. The trial court ruled that the testimony could not be admitted under the dying declaration exception because the victim was not aware she was in the article of death. However, the trial court concluded that the testimony was admissible under the res gestae exception.

We find it unnecessary to determine whether the res gestae exception controls the admissibility of this evidence because we find that even if there was error in admitting McMichael's testimony, it was harmless. The testimony was admitted for the purpose of identifying the defendant as the victim's assailant. Other evidence in the case, including the defendant's confession which is not challenged in any regard, overwhelmingly establishes the identity of the defendant as the victim's assailant.

Sentence Review

5. The jury found that the offense of murder was committed while the defendant was engaged in the commission of the offense of aggravated battery. OCGA § 17-10-30(b)(2). The jury also found that the offense of murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture and an aggravated battery to the victim, and depravity of mind of the defendant. OCGA § 17-10-30(b)(7). We find that the evidence supports the jury's findings in regard to the aggravating circumstances beyond a reasonable doubt. See Hicks v. State, 256 Ga. 715(25), 352 S.E.2d 762 (1987).

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

7. The sentence of death is not excessive or disproportionate punishment to sentences imposed in similar cases generally. OCGA § 17-10-35(c). The similar cases listed in the Appendix support the imposition of the death penalty in this case. Judgment affirmed.

Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008) (Habeas).

Background: Following affirmance on appeal of defendant's state convictions for malice murder and aggravated assault with intent to rape, and imposition of the death sentence, 366 S.E.2d 689, defendant filed petition for federal habeas relief. The United States District Court for the Southern District of Georgia, No. 03-00146-CV-AAA, Anthony A. Alaimo, Senior District Judge, denied petition, and appeal was taken.

Holdings: The Court of Appeals, Tjoflat, Circuit Judge, held that: (1) trial and appellate attorneys were not constitutionally ineffective concerning the admissibility of confession, and (2) trial counsel was not ineffective in failing adequately to search for and present to the jury certain mitigating evidence during the penalty phase of the trial. Affirmed.

TJOFLAT, Circuit Judge:

On August 14, 1987, the petitioner, Robert Newland, was convicted in the Superior Court of Glynn County, Georgia of malice murder and aggravated assault with intent to commit rape.FN1 The following day, at the conclusion of the penalty phase of the trial, the jury recommended that petitioner be sentenced to death for the murder. The court followed the jury's recommendation and sentenced petitioner accordingly.FN2 After exhausting his direct appeal and collateral attack remedies in state court, petitioner applied to the United States District Court for the Southern District of Georgia for a writ of habeas corpus, challenging his convictions and death sentence on several federal constitutional grounds. The court denied the writ. We granted petitioner a certificate of appealability, authorizing an appeal raising five issues.FN3

FN1. Petitioner was charged in separate counts with murder in violation of O.C.G.A. § 16-5-1(a) (1982); felony murder predicated on aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5-1(c); felony murder predicated on aggravated assault with intent to rape in violation of O.C.G.A. § 16-5-1(c); aggravated assault with intent to commit rape in violation of O.C.G.A. § 16-5-21(a)(1); and aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5-21(a)(2).

The jury did not return a verdict on the felony murder counts because the court, pursuant to O.C.G.A. § 16-1-7 (1982), instructed the jury that it could find the defendant guilty of either malice murder or felony murder since section 16-1-7 prohibits a conviction for both malice murder and felony murder for the death of a single victim. Nix v. State, 280 Ga. 141, 625 S.E.2d 746, 748 (2006); Wade v. State, 258 Ga. 324, 368 S.E.2d 482, 485 (1988). Because the jury convicted petitioner of malice murder, the court dismissed the felony murder counts. The court dismissed the aggravated assault with a deadly weapon count because it determined that the charge in that count “merged with” the malice murder conviction. Section 16-1-7 bars a conviction for a crime included within a greater offense. Curtis v. State, 275 Ga. 576, 571 S.E.2d 376, 379 (2002). FN2. The court sentenced petitioner to a twenty-year prison term on the aggravated assault with intent to commit rape count, to run consecutively with the sentence for murder.

FN3. We granted the certificate of appealability (“COA”) after the district court declined to do so.

In his opening brief, petitioner presents only two of the issues; both question whether his attorneys provided him the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. The first issue concerns the admissibility of the confession petitioner gave the police. Petitioner claims that the confession was involuntary, the product of police coercion, and that his trial attorney rendered ineffective assistance of counsel in failing to convince the court that it was inadmissible on that ground. He claims that his appellate attorney rendered ineffective assistance of counsel in failing to appeal the trial court's admission of the confession into evidence. The second issue concerns the adequacy of counsel's preparation for and prosecution of petitioner's case at the penalty phase of the trial and asks whether counsel was constitutionally ineffective in failing adequately to search for and present to the jury certain mitigating evidence.FN4

FN4. Petitioner's brief presents an issue not included in the COA: whether counsel performed ineffectively at the guilt phase of the prosecution in failing to “obtain mental health assistance.” Our review is limited to the issues enumerated in the COA. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998). Petitioner's application for a COA limited the issue of whether counsel was ineffective in seeking and presenting mitigating evidence to counsel's handling of petitioner's case at the penalty phase of the trial. The application stated that “Mr. Newland received ineffective assistance of counsel in violation of the Sixth Amendment ... when counsel failed to conduct a life history investigation or obtain mental health assistance at the penalty phase of his capital trial.” In short, neither petitioner's application for a COA nor the COA we issued raises the issue of whether counsel should have obtained mental health assistance at the guilt phase of the trial.

The Georgia courts, applying Supreme Court precedent, found no constitutional deficiency in counsel's performance. The district court, in denying habeas relief, concluded that the Georgia courts properly applied that precedent in disposing of petitioner's challenges. We agree with the district court and therefore affirm its judgment.

This opinion is organized as follows. Part I describes the commission of the crimes in this case as presented to the jury. Part II discusses the procedural history of the case as it wound its way through the state courts and the district court on collateral review. We recount in considerable detail defense counsel's challenge to the validity of petitioner's confession and counsel's preparation for and prosecution of petitioner's case at the penalty phase of the trial. Part III states the legal standards governing our disposition of petitioner's claims, and parts IV-VI dispose of those claims. Part VII concludes our discussion.

I.

A.

Petitioner and Margaret Beggs, his girlfriend of four years, moved to Glynn County, Georgia in February 1984. Petitioner was self-employed as a drywall construction contractor and Beggs was employed as a social worker in a local mental health clinic. They lived in a house at 230 Broadway Street on St. Simon's Island, across the street from Carol Sanders Beatty, who lived in a duplex at 231 Broadway Street. Over the two years that they were neighbors, Beggs and Beatty increasingly socialized with each other. Petitioner had infrequent social contact with Beatty, although they were on friendly terms.

On May 30, 1986, at approximately 4:30 p.m., petitioner and Beggs went to a local bar, the Sandpiper, where petitioner had several glasses of beer. They left the bar at around 5:15 p.m., and after purchasing Chinese take-out at Ping's Restaurant and a bottle of vodka at a local store, they went home for dinner. After dining and consuming several Bloody Marys, they went across the street to visit Beatty. They arrived at around 8:30 p.m., carrying the bottle of vodka and some Bloody Mary mix with them. While Beatty and Beggs talked-mostly about the problems Beatty was having with her husband locked up in a Florida prison for dealing drugs-petitioner and Beggs had several rounds of Bloody Marys, consuming most of the vodka in the process.FN5

FN5. As Beatty was telling Beggs about her situation, Beatty's husband called from the prison, and talked to Beatty and briefly to petitioner.

Petitioner left Beatty's residence around 9:30-10:00 p.m, announcing that he was going home to bed because he had to get up early the next morning to bid a construction job. Beggs stayed and continued the conversation with Beatty. Petitioner went home, but did not retire for the night. Instead, he packed some clothes and other household items in his pick-up truck and drove to a pier on St. Simon's Island, where he struck a parked vehicle and immediately fled the scene. He abandoned his pick-up truck on Forest Park Drive, several blocks from his Broadway Street residence, and headed on foot to Beatty's residence. The owner of the vehicle petitioner had struck, Donald Sanders, had witnessed the collision and called the police. While these events were unfolding, Beggs remained at Beatty's. She left at around 11:00 p.m. After she got home, she discovered that petitioner was not there. Neither was his truck.

Beatty was in her front yard when she and Beggs parted company. Bonnie Smith, who lived in the other half of the duplex at 231 Broadway Street, was there too. Beatty and Smith visited for a few minutes; both then retired for the night. It was approximately 11:15 p.m.

Shortly after the two women returned to their residences, petitioner entered Beatty's backyard. Petitioner described what happened next in his confession to the police on May 31, after he had been taken into custody. He called to Beatty, asking her to come outside. Beatty came out and petitioner attempted to kiss her. She refused, and told him to go home or she would tell Beggs. Petitioner again attempted to kiss her, and she scratched and slapped him. According to his post-arrest confession to the police, he then “grabbed her and I threw her down and somehow the knife came in my hand and started stabbing her, I don't know, I just lost [sic] out of control ... I was drunk, I don't know why I did it. I had no reason for it.” Petitioner stabbed Beatty in the throat and the abdomen, using a pocket knife that he regularly carried. During the assault, Beatty screamed and called for help. When she collapsed, he ran home, discarding the knife as he ran, washed himself off with a hose in his backyard, put on a new pair of jeans, and entered his house.

At 11:22 p.m., Glynn County Police Department Detectives Barry Moore and James Brundage received a report of a woman screaming in the Broadway Street neighborhood. While they were responding to the call, they received a call from Bonnie Smith, who told them that a woman was screaming in her backyard, behind her residence at 231 Broadway Street. They drove to that address, heard someone run through the backyard, and gave chase. In the course of their pursuit, Brundage discovered petitioner's pick-up truck parked nearby on Forest Drive. The truck matched the description of the vehicle involved in the hit and run Sanders had reported.

Unable to find the person they were chasing, the detectives returned to Beatty's residence. Brundage found Beatty in the backyard, laying in the garden, and still alive. Paramedics were summoned and transported Beatty to Glynn-Brunswick Memorial Hospital. According to Dr. Irwin Berman, one of her treating surgeons, Beatty had a slash wound [in] her neck, which had exposed the entire cross section of her windpipe ... In addition to that, she had multiple wounds of her great vessels of neck ... There were smaller wounds of the flank ... and a stab wound of the abdomen through which ... some of the organs of the, of the abdomen were protruding.

After Beatty had been taken to the hospital, petitioner, dressed in jeans but without a shirt or shoes, entered his house through the backyard. Beggs was awake. She noticed scratches on his face and chest. When she asked about them, petitioner told her that he fell in some bushes on the way back from Beatty's.FN6 Beggs then observed the flashing lights of police cars across the street, at Beatty's, and went over to find out what had happened. She learned that Beatty had been attacked and taken to the hospital.

FN6. Beggs recounted this episode during her testimony as a prosecution witness at petitioner's trial.

Beggs returned home and told petitioner that “something terrible had happened to Carol.” Petitioner told her “he didn't do it.” He asked Beggs to find his truck, because he could not remember where he had left it, and attempted to crawl into a small attic space, telling Beggs he was going to hide. Beggs, increasingly distraught at petitioner's bizarre behavior, left the house in an attempt to find the truck. She also wanted to get away from petitioner, to collect her thoughts.

Beggs drove by Beatty's duplex for a minute or two, searched the neighborhood for petitioner's vehicle and, failing to find it, drove to a local convenience store to purchase cigarettes. After that, she drove to the same pier petitioner had headed for earlier, to have a smoke and collect her thoughts before returning home.

At around 12:15 a.m., Dr. Berman noticed that Beatty was mouthing words, apparently in an attempt to communicate. He notified Detective Greg McMichael, who was standing by, and McMichael came to her bedside. The Georgia Supreme Court, in Newland v. State, related what followed: McMichael ... asked the victim who had attacked her and read her lips to say the name, “Bob.” He then sounded out the name, “Bob” and asked the victim if this was correct. She nodded her head affirmatively. When asked the last name of her assailant, the victim mouthed a word McMichael could not understand. He then asked the victim if the name began with an “A.” She shook her head negatively. McMichael proceeded in this manner through the alphabet until he asked about the letter “N.” The victim “nodded her head vigorously” and squeezed his hand. By this procedure McMichael was able to elicit affirmative shakes of the head from the victim to the letters, “N E W L A.” McMichael then asked the victim if the last name was “Newland.” The victim “nodded her head again very vigorously,” and squeezed McMichael's hand. 258 Ga. 172, 366 S.E.2d 689, 692-93 (1988).

In like manner, Beatty was able to give McMichael petitioner's phone number and the name of the street where he lived. Relying on this information, the Glynn County Police Department dispatched several officers, including Detectives Bill Williams and Dennis Krauss, to petitioner's residence. They arrived at 1:10 a.m. and found petitioner sitting up in his bed and pulling on a pair of jeans, as if he had just awakened. They placed petitioner under arrest for aggravated assault and transported him to the police department headquarters in nearby Brunswick.

Beggs came home shortly after the police left with petitioner. Several officers were still there, and they asked her, and she agreed, to accompany them to the headquarters. She was not under arrest.

B.

At some point early that morning, on May 31, the police obtained a search warrant for petitioner's residence. They found a blood-stained shirt and a pair of socks on the back porch, and a pair of blood-stained blue jeans in a shed in the backyard.

At 1:30 a.m., Detective Williams questioned petitioner in an interview room at the police department headquarters.FN7 Williams was the only officer present. Petitioner smelled of alcohol but his speech was not impaired.

FN7. This interrogation was recorded and the transcript thereof was used by defense counsel in cross-examining Williams at trial.

Williams began by informing petitioner of his Miranda rights. He then asked petitioner what he had done the previous evening. Petitioner said that his truck had broken down early in the afternoon and that he had left it on Forest Park Drive. Later that afternoon, he had gone to the Sandpiper bar with Beggs, had three glasses of beer, picked up Chinese food at Ping's Restaurant, and gone home for dinner. After dinner, they went over to Beatty's place, where he and Beggs had several Bloody Marys. At around 8:30 p.m., they left Beatty's to go home. On the way, he stumbled, because he had been drinking “quite a bit,” and fell in some bushes, which accounted for the scratches on his face. Once home, he went to bed and fell asleep. Beggs awakened him to say that the police were at Beatty's. He told her that this was the neighbor's problem and went back to sleep. He was sleeping when the police arrived to arrest him. Williams asked petitioner if he had gotten drunk that evening; he replied that he had been drinking, but was not drunk. Petitioner asked Williams why he was being questioned-whether he had been charged with anything.FN8 Williams gave no answer.

FN8. The police had already placed petitioner under arrest for aggravated assault, but petitioner apparently was oblivious of that fact.

The interrogation lasted about half an hour. Around 2:00 a.m., the police had his blood alcohol content (“BAC”) tested. Officer Richard Strickland performed the test, which revealed a .12 percent BAC. Petitioner was placed in a holding cell following the test.

While petitioner was submitting to the BAC test, Williams began questioning Beggs, who had arrived at the headquarters (as Williams was questioning petitioner).FN9 This interrogation began approximately at 2:00 a.m. and was broken into two sessions, which combined lasted no more than two hours.FN10 Williams began the first session by informing Beggs that she was not under arrest. He then asked her to tell him what had transpired the previous evening up to the moment she arrived at the department headquarters. Beggs's account of the first part of the evening was consistent with the account petitioner had provided Williams. She stated that they had gone to a local bar, picked up Chinese food, gone home to eat, and then gone over to Beatty's.

FN9. As indicated in the following text, the police questioned Beggs, in two sessions, between 2:00 and 3:30 a.m. that morning, and again from 9:00 a.m. till noon the same day, at which time she was placed under arrest for aggravated assault. FN10. Williams was the only officer present during the two sessions. Both were recorded, and a transcript thereof was made part of the record of the superior court hearing on petitioner's post-conviction petition for a writ of habeas corpus.

At this point, her account began to diverge from petitioner's. She stated that petitioner left Beatty's before she did and that when she returned home, she saw petitioner lying in bed. Moments later, she saw police lights flashing at Beatty's and went there to find out what had happened. She learned that Beatty had been stabbed and hastened home to tell petitioner. He was asleep and did not respond. She went back to Beatty's because she was concerned about her friend and wanted to learn more. After a brief conversation with a police officer, she drove to a local convenience store to purchase cigarettes and from there to the St. Simon's Island pier. Distraught about Beatty's situation, she stayed at the pier for a few minutes, smoking and trying to calm down. She returned home only to find the police waiting. Williams asked her if she had observed any scratches on petitioner, and she said that she had not.

Williams confronted Beggs with the inconsistencies between her account and petitioner's. He pointed out the contradictions concerning whether they returned from Beatty's together or separately and whether petitioner had scratches on his face. Williams asked her if she was lying; she denied it. The first session ended with Williams telling Beggs to sit down on a couch outside the interview room and “think about everything again,” warning her that she would “go down with [petitioner]” if she was trying to cover up for him.

A short time later, Williams resumed the questioning. Beggs admitted that she had not actually seen petitioner at home when she returned from Beatty's but had assumed he was there, telling Williams, “that's the part I covered up.” She explained that after she returned to her house, she saw the flashing police car lights at Beatty's, walked over there and then back home, at which point she saw petitioner in the bedroom and they talked. She admitted that during this conversation, she saw scratches on his face and asked him what had happened. He said he had fallen.

Williams challenged Beggs's account and told her that Beatty had identified petitioner as her attacker. He asked Beggs if she was sure about her story and reminded her that “this is your friend laying out there in the garden.” Beggs, reconsidering, told Williams that she had not seen petitioner at home-after she crossed the street to inquire about the police car lights. He did not arrive until later, when he entered the house from the backyard. It was then that they talked about the scratches on his face. Williams asked her about the knife used in the attack on Beatty. He accused her of disposing of the knife to protect petitioner. Beggs denied doing anything with the knife. The interrogation ended around approximately 3:30 a.m. Beggs was taken to a waiting area at the police headquarters where she sat for the next two hours.

At 3:50 a.m., Williams resumed questioning petitioner after advising him of his Miranda rights.FN11 Williams began by asking petitioner to recount again the events of the previous evening. Petitioner repeated what he had told Williams earlier, but stated that after he left Beatty's, he drove off in his pick-up truck to go to the store, but the truck had “died” on Forest Park Drive. He left the truck there, returned home, and went to sleep. Beggs awakened him later. Williams asked petitioner whether his truck died during the evening hours or in the afternoon, and petitioner stated that it died that evening. Once again petitioner asked Williams why he was being questioned. Williams said he was being questioned because he had attacked Beatty, and confronted him with the inconsistencies between his story and Beggs's. He told petitioner that a bloody shirt and pair of pants had been found at his residence. Petitioner responded to Williams's accusation that he had attacked Beatty by stating, “I have no idea, no remembrance, if I did anything like that.”

FN11. Williams was the only officer present during the interrogation. The interrogation was recorded.

Petitioner reinforced this statement by repeatedly saying that he had no memory of attacking Beatty. He attributed this to the quantity of vodka he had consumed; he was not used to consuming that amount of alcohol. Williams challenged petitioner's no-memory claim as inconsistent with the rest of petitioner's account of the evening. He asked petitioner how he could remember falling in the bushes and conversing with Beggs after they got home, but not remember the attack. Although he had previously told Williams about his conversation with Beggs, he said he could not recall it. He could not explain why he remembered falling in the bushes.

Williams attempted to prod petitioner's memory by confronting petitioner with the possibility that “if that girl dies, you [will be] charged with murder” and Beggs will be charged as an accessory to murder.FN12 Their first exchange involving Beggs went as follows:

FN12. Williams prefaced this statement with this remark: “[T]hat girl is almost dead ... if they don't get enough blood in her she is going to die.” WILLIAMS: You remember enough to lie about it. You remember enough to lie about it and you don't even care enough about Peggy, her ass is going to jail. PETITIONER: I do care about Peggy. WILLIAMS: ... her ass is going to jail, too. PETITIONER: For what? WILLIAMS: For accessory. PETITIONER: Accessory to what? WILLIAMS: To murder.

In their second exchange about Beggs, Williams was more specific about the basis for potential charges against Beggs: PETITIONER: I was in my bed when y'all came. WILLIAMS: Yea, but you hadn't been asleep. You hadn't been in bed very long at all, I know that for a cact [sic]. Well, I think Peggy carried that knife off and hid it for you. Because the knife has disappeared. PETITIONER: Are you thinking that or do you know that? WILLIAMS: No, I think that she, you know, and my boss wants to charge her as an accessory, so you know, if you know where the knife is, if you don't want her to go to jail ... PETITIONER: ... I have no idea, I have no idea, I'm just being straight with you, I just don't know.

The prospect of Beggs being charged as an accessory to murder did not cause petitioner to alter his account of the evening; he continued to claim that he did not remember attacking Beatty. The interrogation ended at approximately 5:00 a.m.

A short time after petitioner's second interrogation ended, Williams escorted petitioner to a rest area within the headquarters building, where petitioner was allowed to speak with Beggs in Williams's presence. Their conversation lasted less than ten minutes. Petitioner told Beggs that he could not remember what had happened that evening.

After this, Beggs returned to a waiting area. At around 6:00 a.m., the police informed her that she could leave, and a sister picked her up at around 6:20 a.m. During the interim, petitioner was taken to the Glynn-Brunswick Hospital, where his blood was drawn at 6:55 a.m. for its BAC and blood type. The police then transported petitioner to the Glynn County Detention Center.

Later in the morning, the Detention Center contacted a local mental health hospital that provided emergency psychiatric services for the Center and requested that someone evaluate petitioner. Frederick Dodd, Jr., Ph.D., a psychiatric social worker, who was on-call, met with petitioner for roughly an hour. Petitioner appeared to Dodd to be “extremely tearful,” “pretty agitated,” and “very confused.” At Dodd's request, the Detention Center placed petitioner on suicide watch.FN13

FN13. Dodd's report of his interview with petitioner states: “suicidal watch recommended and instituted by officers.” There is no other reference in the record to the suicide watch or when it was lifted.

Police officers brought Beggs back to the police headquarters around 9:00 a.m., where she was questioned for the next several hours. At noon, she was arrested for aggravated assault and taken to the Detention Center.

At 9:35 p.m., on May 31, Beatty died from excessive blood loss caused by the injuries she had suffered. The following morning, June 1, at around 10:00 a.m., Detectives Krauss and Putnam went to the Detention Center in order to inform petitioner that Beatty had expired and that he was now being charged with murder.FN14 Petitioner was escorted from his cell out to a holding cell to meet with the detectives.FN15 Before Detective Krauss began speaking to petitioner, petitioner stated: “I just want to plead guilty and get out of town.” Krauss instructed petitioner not to say anything else and advised him of his Miranda rights. Petitioner signed a form waiving those rights. Krauss then asked petitioner to tell him what happened the night of May 30. Petitioner, despite his expressed desire to plead guilty, said nothing inculpatory. Instead, he told Krauss that he did not remember assaulting Beatty and did not want to continue talking. Krauss informed petitioner that Beatty had died and that he was being charged with murder. Petitioner became upset and started to cry, but did not make any inculpatory statements. Since petitioner had stated he did not wish to continue talking, Krauss asked that he be taken back to his cell. As petitioner was being escorted out of the holding cell, he asked Krauss about Beggs's status. Krauss told him that Beggs was in the Detention Center and that he was about to inform her that she also was being charged with murder. Petitioner then confessed to killing Beatty.

FN14. The detectives carried a tape recorder with them, to record the encounter, but the recorder malfunctioned. The sole account of what transpired between them and petitioner was given by Krauss-at the January 21, 1987 pretrial hearing on petitioner's motion to suppress his statements to the police and, later, at petitioner's trial.

FN15. At the January 21, 1987 pretrial hearing, Detective Krauss described the holding cell as follows: “It's not a very big place. It has bars between the officers and the prisoners, and it's pretty much a private place, and usually that's where we go and question someone that's in the Detention Center being held if we have anything to talk to them about.” The cell was located on the third floor of the Detention Center.

Petitioner stated that Beggs was not with him when he went to Beatty's backyard the night of May 30. According to Krauss, petitioner said that he “tried to kiss her that, that she pushed him away, and they got into a struggle, and he got very angry about it. He ... hit her and then threw her to the ground. He ... pulled out his knife and just started cutting her.” Krauss asked him where the knife was, and he said he could not remember. Petitioner cried as he recounted the assault and expressed his remorse. The confession, including Krauss's questions, lasted for ten to fifteen minutes.

Krauss informed Williams of petitioner's confession. Because the confession had not been recorded, Williams decided to visit petitioner to have him repeat his confession. Accompanied by Detective McMichael and armed with a recorder, he went to the Detention Center to speak with petitioner. At 1:05 p.m., Williams and McMichael spoke with petitioner in an interview room. Williams informed petitioner of his Miranda rights, and petitioner signed a waiver-of-rights form. Petitioner again confessed to the murder. But it was not recorded; the recorder's batteries had expired.FN16

FN16. Like the confession to Krauss, this confession was not recorded. Petitioner has not alleged any improper conduct by officers during these two unrecorded interrogations.

Realizing that the confession had not been recorded, Williams went to see petitioner again, at 11:10 a.m. the following day, June 2. He came alone, but this time he brought a functioning tape recorder. As he had done on the previous occasions, he informed petitioner of his Miranda rights. He did not ask him to sign a waiver-of-rights form, opting instead to have petitioner verbalize a waiver through the tape recorder. The interrogation lasted for fifteen minutes. Williams asked petitioner to repeat what he had told him the previous day, and petitioner did so, giving a detailed statement of his involvement in the killing. The statement was recorded and transcribed and published to the jury.

In his statement, petitioner essentially repeated what he had told Detective Krauss on June 1. He also stated several times that he lost control and attacked Beatty because he was intoxicated. He explained that after stabbing Beatty, he ran home, washed himself off in his backyard, changed clothes, and then entered the house, where he spoke with Beggs. She asked him what had happened and how his face had gotten scratched. He told her nothing had happened. “[S]he went over next door, the next thing I remember I was being arrested.” He claimed that he did not remember getting into an accident with his pick-up truck and what he had done with the knife. Petitioner expressed remorse throughout the interrogation.

On June 3, Beggs, now represented by counsel, gave an affidavit to the police describing petitioner's behavior on May 30-31. In exchange for the affidavit, the State reduced her charge from murder to giving a false statement to law enforcement officials. And that charge was eventually dropped.

II.

A.

On June 4, Donald Manning, the Glynn County Public Defender, met with petitioner at the Detention Center. Petitioner was indigent, and Manning informed him that he was appointed to represent him.FN17 Under Georgia law, petitioner, having been detained without bail, was entitled to a commitment hearing.FN18 Because a commitment hearing gives the accused an opportunity to discover the essence of the State's case, Manning, on June 10, informed the assistant district attorney handling the case, Robert Crowe, that he would be requesting a commitment hearing. Crowe replied that a grand jury would be convened the next day and would consider the Beatty case, and that if petitioner were indicted, a preliminary hearing would be unnecessary. Crowe nonetheless agreed not to oppose Manning's request for a preliminary hearing.

FN17. Manning was born and raised in Glynn County. He left the county in 1971 to pursue educational and employment opportunities and returned in 1978. He became an assistant public defender for Glynn County in 1979. In May 1983, he became the Public Defender. Manning was appointed a Glynn County juvenile judge in 1988. He was serving in that position at the time the superior court heard petitioner's application for writ of habeas corpus challenging his convictions and death sentence in the Beatty case.

Prior to petitioner's trial, Manning had served either as lead or assistant trial counsel or appellate counsel in nine capital cases in Georgia. Of these nine cases, he served as lead trial counsel in one case that went to trial and two other cases disposed of by plea-bargained guilty pleas. Before taking on petitioner's representation, Manning had tried, as defense counsel, 57 felony cases.

John Davis, an assistant public defender, assisted Manning in preparing for petitioner's trial but did not attend the trial. Davis had been a trial lawyer, a superior court judge for Lafayette County, Georgia, and a member of the U.S. House of Representatives from Georgia. He had moved to St. Simon's Island and become an assistant public defender following his congressional service. FN18. Georgia law provides that an arrestee who has not been released on bail may request a commitment hearing to determine whether probable cause exists to hold him on the charge for which he has been arrested. See O.C.G.A. § 17-7-20 (1980); Lamberson v. State, 265 Ga. 764, 462 S.E.2d 706, 708 (1995). The commitment hearing can also serve an important strategic function for the defendant because it provides defense counsel with the opportunity to obtain discovery in the early stages of pretrial preparation. See Jack Goger, Georgia Criminal Trial Practice § 11-2 (2007). At the hearing, defense counsel may subpoena witnesses and question them under oath. O.C.G.A. § 17-7-28 (1973).

On June 11, the grand jury returned a five-count indictment against petitioner, charging him with malice murder, aggravated assault with intent to rape, aggravated assault with a deadly weapon, and two counts of felony murder predicated on the aggravated assault charges. On July 1, the Glynn County Magistrate Court held a commitment hearing.

To show that the State had probable cause to detain petitioner for the Beatty assault, Crowe presented the testimony of three witnesses: Bonnie Smith, Beatty's next-door neighbor, and Detectives McMichael and Williams. Smith testified about calling the police after hearing a woman screaming in Beatty's backyard and seeing what appeared to be a man, whom she could not identify, running away. Manning cross-examined her about the relationship between Beatty and petitioner. Smith described the relationship as one of friendly neighbors. McMichael told of being summoned to Beatty's hospital bed and Beatty's identification of petitioner as her assailant, and Williams described his interrogation of petitioner and the incriminating content of petitioner's statements. Manning cross-examined both detectives; in doing so, he learned of other incriminating evidence the police had obtained. The commitment hearing ended after Williams finished testifying.FN19

FN19. The record does not indicate whether, at the conclusion of the commitment hearing, the court found probable cause to detain petitioner. The grand jury indictment had rendered such a finding unnecessary.

On October 21, the Glynn County Superior Court judge convened an “initial pretrial proceeding,” as required by the Georgia Unified Appeal Procedure (“UAP”).FN20 Judge Blenn Taylor, Jr., presided and handled the case to its conclusion. Crowe, appearing for the State, announced that the State would seek the death penalty and provided Manning with written notice in accordance with O.C.G.A. § 17-10-30(7).FN21 Following the UAP format, the court instructed Manning that he must “locate and interview all persons whose testimony might be helpful in ... mitigation of the punishment” and he acknowledged that such was his responsibility as defense counsel. When the initial pretrial proceeding concluded, the court arraigned petitioner.

FN20. The UAP, established in 1980, prescribes certain procedures for the pretrial, trial, sentencing, and appeal stages of capital cases. See O.C.G.A. 17-10-36 (1980); Smith v. Zant, 887 F.2d 1407, 1415 n. 19 (11th Cir.1989) (en banc). The UAP requires the trial court to conduct at least two pretrial hearings: the “initial pretrial proceeding,” which takes place prior to the arraignment, and the “motion hearing,” at which all motions are heard. Unified Appeal Procedure, Rule II(C)-(D). The UAP also establishes a “Checklist,” which enumerates legal errors that might occur at each stage of the prosecution and thus form the basis for an appeal. The trial judge must review the “Checklist” with counsel at the pretrial hearings and at trial. In addition, at the pretrial hearings and during the guilt and penalty phases of the defendant's trial, the judge must question the defendant regarding his satisfaction with trial counsel's performance. In petitioner's case, the court questioned petitioner as the UAP required, and at no time did he voice any objection to Manning's representation.

FN21. Section 17-10-30(7) authorizes the death penalty if the jury concludes that “the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”

On November 10, Manning filed twenty motions. Among them were a motion to suppress the statements petitioner gave the police and requests for discovery, including a list of the witnesses the State intended to call in its case in chief. On January 15, Manning moved the court for the appointment of a psychiatrist and a neurologist to examine petitioner to determine both his competency to stand trial and his sanity at the time of the offense.FN22

FN22. Specifically, pursuant to O.C.G.A. §§ 16-3-2 and 16-3-3, Manning requested an examination to determine if petitioner, at the time he assaulted Beatty, “did not have the mental capacity to distinguish between right and wrong” or suffered from “a delusional compulsion as to the act which over-mastered his will to resist committing the crime.”

The court heard Manning's motions on January 21, 1987. Arguing his January 15 motion, Manning told the court that he wanted a neurological (as well as a psychiatric) examination because he had reason to believe that petitioner had a “neurological disorder.”FN23 If Georgia Forensic Services (“GFS”) could not provide a neurological examination, he said, he would request that petitioner be seen by William Clary, M.D., a neurologist in private practice in Savannah, Georgia. The court granted Manning's motion in full.

FN23. At the evidentiary hearing on petitioner's post-conviction application for a writ of habeas corpus, Manning testified that he requested the neurological exam because petitioner had complained to the Detention Center physician of headaches; Manning believed that the headaches might constitute a symptom of an underlying neurological disorder.

After Crowe agreed to provide Manning with the discovery he requested, the court turned to Manning's motion to suppress petitioner's statements to the police and asked counsel if they were ready to proceed with an evidentiary hearing. They responded that they were ready to go forward.

Crowe called Detectives Williams and Krauss to the stand. They testified that petitioner had been informed of his Miranda rights at the time of his arrest and at each interrogation, that he waived his rights before questioning commenced, that he had not been threatened or promised anything in exchange for his statements, and that he gave no sign of mental impairment. In examining Williams about the two interrogations he conducted on May 31, Crowe focused on the degree of petitioner's intoxication. Williams stated that while petitioner did appear to have been drinking, his answers were responsive and he was steady on his feet. Krauss told Crowe that petitioner did not confess until after he asked about Beggs and had been informed of his rights.

Manning cross-examined both witnesses. In questioning Williams, he concentrated on what Williams said to petitioner while interrogating him-twice on May 31 and once on June 1. Referring first to the May 31 interrogations, Manning asked Williams about the extent of petitioner's intoxication, and Williams repeated what he told Crowe on direct-examination. Manning asked him whether petitioner expressed “concern” about Beggs's status in the investigation, and he said that petitioner seemed concerned.FN24 Turning to June 1, when, following Beggs's arrest for murder, Williams took petitioner's statement, Manning asked him if he told petitioner that Beggs would get the death penalty if petitioner did not confess. Williams said no.

FN24. In questioning Williams about his interrogation of petitioner at 3:50 a.m. on May 31, Manning did not ask him about two comments he made about Beggs: specifically, “her ass is going to jail ... for accessory ... to murder,” and “my boss wants to charge her as an accessory.” Manning's failure to bring these two comments to the trial judge's attention forms the basis for petitioner's claim that Manning's challenge to the validity of petitioner's confession was constitutionally inadequate.

Manning questioned Krauss regarding his interrogation of petitioner on June 1 and petitioner's emotional status at that time. He also put to Krauss the same question he had asked Williams: whether he told petitioner that Beggs would get the death penalty if he refused to confess. Krauss said he did not.

After hearing from these witnesses and considering argument of counsel, the court overruled Manning's motion to suppress, finding that petitioner's statements had been freely and voluntarily made after a waiver of rights. The court then announced that petitioner's trial would commence on April 27, 1987.

B.

On January 23, 1988, Dominic D'Alesandro, Ph.D., a forensic psychologist in the employ of GFS, interviewed petitioner at the Detention Center pursuant to the court's order granting Manning's motion for a psychiatric examination. D'Alesandro submitted a report to the court and counsel on January 27, in which he concluded that petitioner was competent to assist counsel in his defense, but deferred any opinion as to petitioner's criminal responsibility for the charged offenses until petitioner was evaluated by a neurologist.

On February 16, petitioner was examined by Dr. Clary, who subsequently issued a report.FN25 In it, he stated that he had “been asked to see [petitioner] for evaluation of headaches.” He discussed petitioner's background and the head injuries petitioner had suffered in the past. Regarding the latter, he indicated that petitioner had been struck in the head with a sledge-hammer and had injured his head in a car accident that resulted in a loss of consciousness for several hours. Dr. Clary also stated that petitioner said he had not “had beer for several years, although he used to drink apparently fairly heavily, [and] that prior to six years ago he was using drugs fairly consistently, but eventually stopped.” Dr. Clary concluded that petitioner was suffering from “chronic muscle tension headaches ... [but] doubt[ed] that there is any more significant underlying neurological problems.” Nonetheless, he ordered an electroencephalogram (“EEG”) and computed tomography (“CT”) scan if petitioner's headaches did not diminish. On March 24, the EEG and CT scan were conducted. Neither revealed any sign of neurological injury.FN26

FN25. The report was sent to the court, with copies to GFS and counsel for the parties. FN26. The results of the EEG and CT scan were provided to the court, GFS, and counsel for the parties.

On April 2, petitioner was examined by Richard Doss, M.D., a forensic psychiatrist in the employ of GFS, at Georgia Regional Hospital. On April 10, Drs. Doss and D'Alesandro issued a joint report, which was sent to the court with copies to counsel. The report concluded that “there were no indications to suggest the existence of a psychiatric, psychological, or neurological disorder which could conceivably have been a factor in his behavior during the night of the alleged murder with which he is charged.” The report also noted that petitioner “maintain[ed] that he was unable to remember the specific episode which resulted in the charges,” but, nonetheless, “demonstrated a significant remorse for the situation.”

C.

On July 31, the prosecutor provided Manning with notice that he would be seeking the death penalty under O.C.G.A. 17-10-30(2) as well as subsection (7).FN27 On August 7, three days before petitioner's trial was to commence, the prosecutor filed notice that he intended to present a prior indictment of petitioner as a non-statutory aggravating factor at the sentencing hearing, should petitioner be convicted.FN28 Petitioner had been indicted in December 1978 in Tennessee for aggravated assault, burglary, and criminal sexual conduct in the first degree. The victim of these alleged offenses was a woman. Manning objected to the prosecutor's use of the indictment, and the court sustained his objection.FN29 Manning, however, successfully persuaded the court not to allow this indictment to be used at the sentencing hearing.FN30

FN27. Section 17-10-30(2) authorizes the death penalty if the jury concludes that “the offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.”

FN28. Pursuant to O.C.G.A § 17-10-30(b), the jury is authorized to consider “any mitigating circumstances or [non-statutory] aggravating circumstances otherwise authorized by law.” The prosecutor probably intended to introduce the indictment as a non-statutory aggravating circumstance, going to the defendant's general moral character. See Ford v. State, 257 Ga. 461, 360 S.E.2d 258, 260 (1987) (“The 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.”).

FN29. While petitioner was on the stand during the penalty phase of his trial, the prosecutor, believing that the court's pretrial ruling precluding the use of the indictment as a non-statutory aggravating factor did not bar him from using it to impeach petitioner, asked him whether he had ever been to Munesforo, Tennessee, and he said no. Manning objected. During the court-counsel colloquy that ensued (out of the hearing of the jury), the prosecutor explained to the court that, following the indictment, petitioner had been admitted to bail by posting a bond. He had skipped bail, become a fugitive, and forfeited his bond. The court sustained Manning's objection, and the jury never learned about the sexual assault that allegedly had occurred in Tennessee eight years before.

FN30. There is nothing in the record indicating why the trial judge decided not to allow admission of this indictment.

D.

1.

Petitioner's trial, which had been set for April 27, 1987, began on Monday, August 10, 1987.FN31 It lasted five days. The State called twenty-two witnesses in its case in chief during the guilt phase of the trial. The testimony of these witnesses established the facts set out in subpart I.A, supra.FN32 In addition to these facts, their testimony established that the victim's blood was present on petitioner's jeans and shirt.FN33 Anticipating Manning's defense-that petitioner's level of intoxication diminished the mens rea necessary for a malice murder conviction-the State introduced evidence of what it contended was a minimal level of intoxication through the testimony of Sally Watford, a Georgia Bureau of Investigation forensic scientist. She testified that petitioner's BAC was .04 percent when his blood was drawn at Glynn-Brunswick Hospital at 6:55 a.m. on May 31. Extrapolating back seven hours, using an average alcohol dissipation rate, she testified that petitioner may have had a BAC of .14 percent around midnight on May 30.

FN31. The trial was postponed for reasons not pertinent to this habeas proceeding. FN32. The evidence the State presented did not include what Beggs told the detectives on being questioned at the police headquarters on May 31 prior to being charged, at noon on that day, with aggravated assault. FN33. John Wegel, a forensic serologist employed by the Georgia Bureau of Investigation, stated that petitioner had Type A blood, that Beatty had Type O blood, and that the blood found on petitioner's jeans and shirt was Type O blood.

Manning's defense strategy was to portray petitioner as a normal guy, a hard worker who had an excellent reputation as a dependable drywall contractor, a good and friendly neighbor, and a person who used alcohol in moderation. On the evening of the crime, petitioner drank, for him, an excess amount of alcohol, and the alcohol caused him to act completely out of character. He had no reason to attack Beatty; he was not a violent person. Alcohol was the sole explanation for his conduct. The alcohol had such an effect on him that he could not form the mens rea required for malice murder.

Manning executed this defense strategy principally through his cross-examination of prosecution witnesses. Beggs related how much petitioner had to drink that evening. Petitioner had three to four beers at Ping's, the Chinese take-out restaurant, two Bloody Marys at their house before and during dinner, and three more over at Beatty's. By the time he left Beatty's, there was very little vodka left in the bottle. Beggs testified that she had not seen petitioner drink to the point of intoxication since February 1984, and that he was not normally a vodka drinker. When he left Beatty's, she said, “it was time” for him to go home.

Manning asked Detective Williams about petitioner's state of intoxication prior to the 1:30 a.m. interrogation on May 31. Williams said that petitioner had an odor of alcohol and that his eyes were bloodshot. Manning asked Watford to extrapolate back nine hours from the time petitioner's blood was drawn at the hospital, at 6:55 a.m. on May 31, and she said that petitioner's BAC was possibly .17 percent at approximately 10:00 p.m. the night before.

Manning questioned Bonnie Smith and Beggs about petitioner's lifestyle. Beggs said that she and petitioner had a normal relationship and that he had been regularly employed since they moved to St. Simon's Island in 1984. Petitioner owned his own drywall contracting business, and left Beatty's around 10:00 p.m. because he had to get up early the following morning to bid on a construction job.

Smith testified that she saw no signs of animosity or of a sexual relationship between petitioner and Beatty. She went on to say that she, Beggs, petitioner, and Beatty had worked together on a garden in the backyard of Beatty's and her duplex. In a leading question, Manning characterized petitioner and Beggs thusly: “Just normal people concerned with a garden, that's basically how you knew them is that, that it?” She replied, “Right.”

In addition to portraying petitioner as a friendly, caring person who had no reason to attack Beatty, Manning had to deal with the highly incriminating post-arrest statements petitioner had given to the police. His tack was to plant the idea with the jury that petitioner gave a false confession to protect Beggs and that his description of the crime was provided by the police as they interrogated him. He had Detective Williams admit that when he questioned petitioner at 1:30 a.m. and 3:10 a.m. on May 31, petitioner consistently claimed not to be able to recall any involvement in the murder, that he told petitioner that “[Beggs's] ass is going to jail, too ... for accessory,” that he was deeply concerned about Beggs's welfare, and that during the 3:10 a.m. interrogation, he provided petitioner with several details about the crime.

In cross-examining Detective Krauss, Manning focused on the events surrounding petitioner's statements to him on June 1. Krauss testified that petitioner first claimed that he could not remember what happened and that he only confessed after being informed that Beggs had been charged with aggravated assault. Asked whether petitioner “was trying to do his best to protect Peggy Beggs,” Krauss said that he was.

After the State rested its case, Manning presented the petitioner's case; he called two witnesses, Frederick Dodd, the psychiatric social worker who saw petitioner at the Detention Center the morning of May 31, and Officer Richard Strickland, who performed a BAC test around 2:00 a.m. that day. Dodd supported Manning's attack on the reliability of petitioner's incriminating statements. He testified that he visited petitioner after he had twice been interrogated by Williams, and that petitioner told him that he “could not believe that he had done what they said he had done.” Dodd felt that petitioner's lack of memory could have been due to an alcoholic blackout. Strickland added to the blackout theory, albeit indirectly, by testifying that petitioner's BAC was .12 percent at 2:09 a.m. and was likely at a higher level earlier.

The defense rested; it was Friday, August 14. The State had no rebuttal, so the jury was excused while the court held a charge conference. Manning proposed a jury instruction that would allow the jury to consider petitioner's intoxication in its determination of criminal intent. Manning reminded the judge that he had given the same instruction in a case he had tried before the judge in December 1986. The judge acknowledged that he had given the instruction in that case, but stated that his view of the law regarding the relevance of voluntary intoxication in determining criminal intent had changed since that time.FN34 Accordingly, he would not give the requested instruction; instead, he would submit an instruction to the jury that read, in part, “voluntary intoxication shall not be an excuse for any criminal act.” FN35 After the charge conference ended, the guilt phase of the trial resumed for counsel's closing arguments to the jury, beginning with the defendant's.

FN34. The record does not indicate when the judge changed his view concerning the relevance of voluntary intoxication in resolving the issue of criminal intent. What is clear is that prior to petitioner's trial, the judge did not inform the parties that he had changed his view and thus would not give an instruction along the lines of the instruction he had given previously and, in particular, in the case Manning had tried before him in December 1986.

FN35. The jury instruction on voluntary intoxication reads in full: “Our law provides that voluntary intoxication shall not be an excuse for any criminal act. It provides, further, that if a person's mind, when unexcited by intoxicants, is capable of distinguishing between right and wrong and reason and acting rationally and that person voluntarily deprives himself of reason by consuming intoxicants, and while under the influence of such intoxicants he commits a criminal act, he is criminally responsible for such acts to the same extent as if he were sober.”

Manning first reminded the jurors that they would be required to find that petitioner murdered Beatty “with malice aforethought.” He defined malice for them as the “deliberate intention unlawfully ... to take away the life of another human being.” He argued that Smith and Beggs had described petitioner as a hard worker, “a good neighbor,” and “a good husband,” and recalled Beggs's testimony that he had not drunk to the point of intoxication in several years. Petitioner got so intoxicated on the night of May 30, though, that, in Manning's words, “[he] did not even know what he was doing.” For this reason, the jury was urged to find “ample doubt, more than a reasonable doubt, about malice aforethought, about intent to kill.” Manning referred briefly to the aggravated assault with attempt to rape charge, saying that petitioner's attempt to kiss Beatty did not rise to the level of attempted rape.FN36

FN36. Manning's comments on the aggravated assault with a deadly weapon charge were likewise brief. The extent of his argument on that charge was: “Robert Newland is accused of five crimes, five, but I contend that you can conclude from the evidence that you've heard there is only one act, so you have to decide which, if any, of these alleged crimes was committed.”

The prosecutor's closing argument, delivered by Crowe, summarized the extensive evidence of petitioner's guilt. Crowe downplayed the impact of petitioner's intoxication by arguing that petitioner was not too intoxicated to run from Beatty's backyard, clean himself off, lie to Beggs when she spoke to him after he returned from attacking Beatty, and lie to Detective Williams in the initial interrogations. He relied heavily on petitioner's confession (to Detectives Krauss, Putnam, and Williams) to show that petitioner intended to assault Beatty with intent to rape, pointing to his statement that he tried to kiss her twice as evidence of intent to rape.

The case went to the jury on August 14 at 11:44 a.m. At 2:39 p.m., the jury returned its verdict. It found petitioner guilty of murder, aggravated assault with intent to rape, and aggravated assault with a deadly weapon. Following a short recess, the trial entered the penalty phase.

2.

The State sought the death penalty based on the existence of the two statutory aggravating factors indicated in the notices the prosecution had provided the petitioner. The State's case in chief was brief. Crowe waived his opening statement, and called no witnesses. To establish a non-statutory aggravating factor, he introduced and relied on documentary proof of petitioner's September 14, 1967 conviction in Florida for breaking and entering. He then rested the State's case.

Manning's strategy in presenting the petitioner's case was to focus on petitioner's lack of intent to kill Beatty. Part of this strategy was to show that petitioner had a new-found religious faith and that he would dedicate his life in prison to ministering to fellow inmates.

Manning called five witnesses to the stand, then petitioner. Four of the five witnesses were either lay or ordained ministers who had visited petitioner during his incarceration. All testified that petitioner had experienced a genuine conversion to Christianity and could be an effective lay minister to inmates. Patty Parkinson, Beggs's sister, testified to petitioner's good character and that she had known him to be “very supportive, a generous kind man.” He was “a passive type person. I never saw him angry.”

Petitioner testified that he was committed to his faith and asked the jury to spare his life so he could minister to other prisoners. He pled for forgiveness, expressing sorrow for what he had done. He said that he had no intent to kill Beatty-in fact, he still had no memory of the attack. After he concluded his testimony, the defense rested, and counsel began their closing arguments.

The prosecutor's closing argument was largely an explanation of why the jury should find the requisite statutory aggravating factors. Crowe argued that Beatty's injuries were so extensive and severe that they constituted torture, such that the jury could find the existence of both of the statutory aggravating factors. Reminding the jurors that Beatty had screamed and begged for her life while petitioner was assaulting her, Crowe asked them to show petitioner the same mercy he had shown Beatty.

Manning, in closing, argued that petitioner deserved life imprisonment. Petitioner did not intend to kill Beatty: “he doesn't even remember how he did it, certainly not why.” He suggested that the attack on Beatty “appears from all the evidence ... to be an isolated incident,” for which petitioner had expressed great remorse. He urged the jury to spare petitioner's life so he could minister to other prisoners through sharing his religious faith.

The jury began deliberating over the penalty to be imposed at 5:26 p.m. on August 14. At 8:51 p.m., after the jury informed the court that it had not reached a verdict, the court recessed for the day. The jury resumed its deliberations on Saturday, the 15th, at 9:00 a.m. At 10:22 a.m., it returned its verdict. It found the existence of both statutory aggravating factors and recommended that petitioner be sentenced to death. The court, as required by Georgia law, adopted the recommendation and imposed a death sentence.

E.

1.

Petitioner appealed his convictions and death sentence to the Supreme Court of Georgia, challenging the sufficiency of the evidence for the murder and aggravated assault with intent to rape convictions and the admission of Detective McMichael's testimony as to Beatty's identification of petitioner as her attacker. He did not appeal the trial court's denial of his motion to suppress the statements petitioner had made to the police. The Supreme Court of Georgia affirmed his conviction. Newland v. State, 258 Ga. 172, 366 S.E.2d 689 (1988). The United States Supreme Court denied certiorari review. Newland v. Georgia, 488 U.S. 975, 109 S.Ct. 514, 102 L.Ed.2d 549 (1988).

2.

On January 2, 1991, petitioner applied to the Superior Court of Butts County, Georgia, for a writ of habeas corpus. The case lay dormant until September 4, 1996. Petitioner amended his petition on November 12, 1997; as amended, it contained twenty-five claims based on the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Section 1 of the Georgia Constitution. The petition included the ineffective assistance of counsel claims presented to us in this appeal. On March 3-4, 1998 and January 13, 1999, the superior court held evidentiary hearings, at which the petitioner submitted affidavits from various individuals in support of his claims but did not testify. The State called Manning to testify at the March 3-4 hearing. He was the sole State's witness. Petitioner's case consisted of several affidavits, none coming from petitioner himself.

The superior court denied petitioner habeas corpus relief in a one-sentence order on February 22, 1999. On June 5, 2001, the Georgia Supreme Court remanded the case to the superior court for findings of fact and conclusions of law. On December 17, 2001, the court issued an order that adopted the State's proposed findings and conclusions and again denied relief. The Georgia Supreme Court denied petitioner's application for probable cause to appeal on October 1, 2002. The Supreme Court denied certiorari review on May 5, 2003. Newland v. Turpin, 538 U.S. 1015, 123 S.Ct. 1933, 155 L.Ed.2d 853 (2003).

3.

On September 22, 2003, pursuant to 28 U.S.C. § 2254, petitioner sought a writ of habeas corpus in the United States District Court for the Southern District of Georgia. His petition raised twelve claims, including the ineffective assistance of counsel claims now before this court.FN37 The petition was referred to a magistrate judge, who issued a report and recommendation on January 27, 2005, based on the records compiled in connection with the criminal prosecution and the state court habeas proceeding. The magistrate judge concluded that petitioner had failed to establish that the state courts had handed down a decision regarding any of his claims that entitled him to relief under 28 U.S.C. § 2254(d). The district court adopted the magistrate judge's report and recommendation as its decision on June 16, 2005, and denied relief. Petitioner moved the court to alter or amend its judgment, pursuant to Federal Rule of Civil Procedure 59(e), on June 30, 2005. The court denied the motion on August 31, 2005.

FN37. Petitioner was granted leave to amend his petition to add one claim not pertinent to this appeal.

On December 1, 2005, we granted a certificate of appealability to determine whether, as petitioner contends, (1) the performance of his trial and appellate attorneys, Donald Manning and John Davis, was constitutionally ineffective concerning the admissibility of his confession, and (2) Manning was ineffective in failing adequately to search for and present to the jury certain mitigating evidence during the penalty phase of the trial.

*****

In his testimony before the habeas court, Manning acknowledged that his investigation into petitioner's life history in Limecrest, Ohio, was limited and then explained why it was so. First, petitioner specifically instructed him not to contact his family or to send an investigator to Limecrest, Ohio, where he was born. More generally, petitioner emphatically discouraged him from researching his past.FN58 Second, after repeatedly asking petitioner about his past and receiving very little information in return, he was unsure of the significance of petitioner's background and doubted whether petitioner was being honest about the information he did provide. Third, petitioner did not give him the information he needed to contact family members or anyone else who might be able to testify about petitioner's upbringing, his childhood and adolescence.

FN58. At the evidentiary hearing, Manning testified as follows in an exchange with Assistant Attorney General Susan Boleyn, who represented the State: MANNING: [The information Mr. Newland initially provided me was] very brief, and I felt at the time uninformative responses. And I expressed that to Mr. Newland at the time, and I said, you know, I need to know where you're from. And ... I asked this question many times, and he would consistently say, look, this is my problem, I'm in this. I said well, what about your family, do you have brothers, sisters, what your-anybody that I can contact just to provide you with some money for the commissary at least. No, sir, I don't want anybody involved in this, this is my problem, don't you do that, don't contact anybody. And I didn't have anybody to contact. On several occasions I would ask Mr. Newland for more information and the closer we got to trial, the more insistent I became because I knew that we were facing a jury and it could be a capital jury that would have to decide his fate and I wanted to be able to humanize him to that jury and we had-the fact situation in this case was not-not pretty, let's say, and I needed something from him, some people to put up there to testify about the good things in his life, what he had done. But he just kept saying, look, I was a hippy [sic], I moved from place to place, I don't have any friends, and leave that out of it, this is my problem. That was his attitude and it was very frustrating for me.

BOLEYN: What, if any, consideration did you give to sending [the public defender's investigator] to Ohio based on Mr. Newland's response to your questions?

MANNING: Well, I didn't give any consideration to it because he didn't want that to happen and we didn't-you know, I try to do what my client wants to the extent that I can and he was adamant about this, he didn't want any of his relatives involved-quote, involved in this.

*****

Petitioner's argument that the habeas court's decision cannot be squared with the controlling Supreme Court precedent is twofold. First, petitioner claims that under Strickland, Manning's investigation of his background was unreasonable as a matter of law: Manning was given enough information to launch a thorough background investigation, and he knew that a background investigation was essential to an adequate preparation for the penalty phase of the trial. Petitioner then analogizes Manning's failure to investigate his background to conduct of trial counsel the Supreme Court has held to be ineffective and concludes that the state court's decision was contrary to, or an unreasonable application of, Strickland, Williams, Wiggins, and Rompilla.

Second, petitioner reminds us that Strickland looks to prevailing professional norms at the time of trial as a yardstick by which to assess the reasonableness of counsel's performance. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065 (“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”). Applying this yardstick, petitioner measures Manning's conduct and concludes that it fell outside the norms that address the need for background investigations in capital cases. He supports his conclusion with citations to cases we decided prior to the time of his trial, ABA guidelines, affidavits from experienced capital defense attorneys, and admissions Manning made while testifying before the state habeas court.

*****

It appears to us that two strategies are clear: the one Manning pursued, and the one petitioner advances. Manning's strategy effectively foreclosed the prosecutor from delving into petitioner's lengthy history of drug and alcohol induced violence. Habeas counsel's strategy would have portrayed petitioner as an addict, who knew that when he became intoxicated, he would probably become violent. Experience had taught him that. Under petitioner's proffered strategy, defense counsel, in closing argument to the jury, would try to use petitioner's mental illness to reduce his moral culpability for his attack on Beatty. The prosecutor would counter with the argument that petitioner knew full well what would happen if he got drunk; that he could have avoided what befell Beatty. Dr. Crown's explanation that petitioner was predisposed to drink on the night of May 30 because of the stress caused by his long-term relationship with Beggs would have been greeted with disbelief by the jury, given Beggs's testimony that petitioner had not drunk to the point of intoxication in several years, despite being in a relationship with her for all that time.FN85

FN85. Indeed, such testimony “could potentially alienate the jury as an attempt to excuse truly horrendous conduct.” Grayson v. Thompson, 257 F.3d 1194, 1222 n. 7 (11th Cir.2001).

Manning testified that presenting a history of childhood abuse to a Glynn County jury in 1987, as a reason for eschewing the death sentence, would have been highly problematic.FN86 Indeed, this court has recognized that “when a defendant is several decades removed from the abuse being offered as mitigation evidence its value is minimal”; petitioner left his abusive home in Ohio three decades before his attack on Beatty. Callahan v. Campbell, 427 F.3d 897, 937 (11th Cir.2005).

FN86. At petitioner's habeas hearing in state court, Manning testified as follows: “[Childhood abuse as a defense] was non-existent at that time in Glynn County. I was aware of some early attempts to do that, but I was also aware that most of it had been discredited.”

The state habeas court, albeit in a summary fashion, concluded that petitioner failed to carry the day on the prejudice issue. We hold that its decision did not amount to a decision contrary to, or an unreasonable application of, Supreme Court precedent.

VI.

In conclusion, for the foregoing reasons, we hold that the state habeas court properly applied the relevant, and controlling, Supreme Court precedent in dismissing petitioner's ineffective assistance claims. The judgment of the district court is, accordingly, AFFIRMED.

Robert F. Newland