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Exzavious Lee GIBSON
GIBSON v. THE STATE.
S91P0499.
(261 Ga. 313)
(404 SE2d 781)
(1991)
FLETCHER, Justice.
Murder, etc. Dodge Superior Court. Before Judge West.
Exzavious Lee Gibson was convicted by a Dodge
County jury of murder and armed robbery. He was sentenced to
death on the murder conviction and to life imprisonment for the
armed robbery. We affirm the conviction and death sentence.
1
1. The victim operated a family-owned grocery
store in Eastman. Late in the afternoon of February 2, 1990,
Eastman's chief of police, driving by the store during a routine
patrol, saw a crowd at the front entrance. A man ran to the
chief's car and reported there was blood all over the store and
no one visible inside.
The chief radioed for assistance and then
approached the store. The main entrance was locked. A member of
the victim's family broke open a side door. The police chief
entered the store and discovered the victim's body "behind the
counter and blood just totally everywhere."
A man had been seen running away from the
store. One of the women in the crowd recognized him and knew
where he lived. She accompanied a police officer to the
defendant's home. Leaving her in the car, the police officer
went to the door, knocked, and asked permission to enter. A
woman answered, telling the officer to come in.
He opened the door and immediately noticed
drops of fresh blood on the floor in the living room. The
officer asked the woman if anyone had run into the house. She
answered "her grandson" and directed him to a bedroom down the
hall. The officer went to the bedroom. Looking from the doorway,
he saw bloody money under the bed.
The officer went to the bed and looked under
it, thinking the defendant might be hiding there, and saw the
rest of the money (almost $500) and a wallet. He looked inside
the wallet and determined that it belonged to the victim.
Looking around, he saw some bloody clothes near a closet which
fit the description of the clothing worn by the man seen running
away from the store. The officer opened the closet door and
found the defendant, "crouched down" and sweating profusely. He
was arrested and taken to jail.
An autopsy was conducted on the body of the
victim. He had been cut numerous times; some of the cuts were
very deep while others were shallow. The autopsist testified
that he found 39 "stab and slash and superficial cut wounds on [the
victim's] body." The knife blade had broken off in the vertebrae
of the victim's neck, severing the victim's spinal cord and
immediately paralyzing him from the neck down. In the
autopsist's opinion, many of the superficial wounds in the front
of the victim's chest and neck were inflicted by what was left
of the knife after it had broken off in the victim's neck.
The defendant confessed shortly after he was
arrested. He first gave a brief written statement in which he
acknowledged killing the victim, claiming he needed money for
drugs. Later that evening, he gave a longer tape-recorded
statement, in which he added that he had been in the store
earlier that day and had used profanity in the presence of the
victim, who had then lectured him about his behavior. The
defendant stated that when he returned later, he intended not
only to rob the victim but also "to hurt him" because "I didn't
like him."
The evidence supports the conviction on both
counts. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d
560) (1979).
2. Citing Coleman v. Kemp, 778 F2d 1487 (11th
Cir. 1985), the defendant argues the trial court erred by
denying his motion for change of venue. We disagree. The Coleman
case involved a trial in a county subjected to an overwhelming
barrage of inflammatory pretrial publicity. The Eleventh Circuit
Court of Appeals held that this media inundation gave rise to a
presumption of prejudice to Coleman's right to a fair trial in
the county in which the crime occurred. The Court noted, however,
that "the presumed prejudice standard is 'rarely' applicable."
Id. at 1490.
In this case, the defendant offered only
three newspaper articles in support of his motion, consisting of
a mere 11 lines in one column, 23 lines in another, and 20 in a
third. This does not amount to a "barrage" of pretrial publicity
as would give rise to a presumption of prejudice.
Where the presumed prejudice standard does
not apply, the defendant can prevail on a motion for change of
venue based on excessive pretrial publicity only if he can show
actual prejudice "from the jury selection process itself -- the
voir dire examination and qualification of prospective jurors."
Lee v. State, 258 Ga. 82, 86 (365
SE2d 99) (1988).
3. There is no statutory requirement that the
state submit its requests to charge at least 24 hours before
trial and the trial court did not abuse its discretion by
denying the defendant's motion to compel such submission. We
note that the state did not submit any requested charges at
trial.
4. The defendant failed to establish any
necessity to exclude the news media from the pretrial hearings,
and the trial court did not err by refusing to close the
pretrial proceedings to the media. See R. W. Page Corp. v.
Lumpkin, 249 Ga. 576 (292 SE2d 815)
(1982).
5. The defendant contends the trial court
erred by denying his motion to suppress physical items -- bloody
money, bloody clothes, and the victim's wallet -- seized from
the defendant's bedroom. He contends there was no evidence that
the arresting officer was authorized to enter his bedroom and
that the defendant's later consent to search, given after he was
interrogated, was not preceded by Miranda warnings and was
induced by an illegal entry into the defendant's room and the
defendant's consequent perception that these items would be
seized with or without his consent.
The defendant's grandmother not only invited
the arresting officer into her home, she told the officer the
defendant was "in the far back bedroom" and the officer could "go
on back and talk to him." Thus, even pretermitting any question
of "hot pursuit," the officer was authorized to enter the
defendant's bedroom. 2 Williams
v. State, 166 Ga. App. 798 (2) (305 SE2d
489) (1983). The defendant's consent, then, was not
tainted by an illegal entry. As to his other claim, the evidence
shows the defendant was Mirandized at least twice the same
evening he gave his consent. Moreover, he executed a written
consent to search stating he had "been informed of my
constitutional right . . . to refuse to consent to . . . a
search" of the premises. His consent to search was not invalid,
and there was no error.
6. The defendant complains about the Attorney
General's response to his attempt to subpoena information in the
possession of witnesses employed by the state crime laboratory.
The Attorney General moved to quash the subpoenas, to assess
costs, and to find the defendant's attorney in contempt of court
for filing the subpoenas. In response, the defendant's attorney,
stating he did not wish to "suffer" the court's contempt and had
no funds to pay the costs, withdrew the subpoenas. The defendant
argues that the state's "bullyboy" tactics "compelled" his
withdrawal of the subpoenas and denied him effective assistance
of counsel.
The defendant, however, did not withdraw his
subpoenas until midway through the trial, and then only after
being strongly encouraged by the trial court to insist on his
subpoenas if he wished, because the possibility of "being fined
or . . . having to incur any personal cost in this matter is so
remote as to be non-existent."
Only two crime-laboratory witnesses testified.
One had not been subpoenaed by the defense, and the other -- the
autopsist -- testified that he had complied with the subpoena
and brought to court with him all items in his possession called
for by the subpoena.
While we find the threats contained in the
motion to quash the subpoenas to be distasteful, we do not find
that the defendant was "compelled" to withdraw his subpoenas, or
that the State by its action impaired the defense attorney's
representation of the defendant. 3
7. The arresting officer testified that when
he entered the defendant's residence and asked his grandmother
if anyone had just run through the house, she answered that her
grandson had. Next, the officer testified, she asked him, "Is he
in any kind of trouble? Has he robbed somebody or something?"
The defendant objected and moved for a mistrial. The trial court
sustained the objection and instructed the jury to disregard the
testimony about what the grandmother had asked the officer. The
defendant's motion for mistrial was denied.
The defendant contends the testimony at issue
was "pure hearsay" and the trial court erred by denying his
motion for mistrial. The denial of the motion for mistrial was
not an abuse of discretion. Farley v. State,
260 Ga. 816 (4) (400 SE2d 626) (1991).
8. It was not error to admit in evidence pre-autopsy
photographs of the victim's body which demonstrated the nature
and location of the wounds. Taylor v. State,
261 Ga. 287 (6 d) (404
SE2d 255) (1991).
9. The defendant testified at the sentencing
phase of the trial that he was using crack cocaine the day of
the crime. On cross-examination, the state asked how long the
effects of crack cocaine lasted. The defendant answered, "Maybe
an hour, hour and a half." The state then asked whether "all
these experts" who said the effects of crack cocaine only lasted
"about fifteen minutes" did not know "what they're talking about?"
The state withdrew the question after the
defendant objected to it, and the jury was instructed to
disregard it. The defendant's motion for mistrial was denied.
There was no abuse of discretion. Farley v. State, supra.
10. The state offered in evidence at the
sentencing phase a letter the defendant had written "To The
Police" about his "magnificent" escape attempt. The defendant
objected on the ground that the letter was "irrelevant" and "interjects
another crime, an unindicted crime, into this case, an attempt
to escape." These objections were properly overruled. The letter
clearly was relevant, Hicks v. State, 256
Ga. 715 (19 c) (352 SE2d 762)
(1987), and, moreover, testimony about the defendant's escape
attempt had already been admitted without objection. See also
Isaacs v. State, 259 Ga. at 728 (16 b).
The defendant implies in his brief that he
had no timely notice that the letter would be admitted in
aggravation. See OCGA 17-10-2.
However, lack of notice was not an issue raised at trial, and
may not be raised for the first time on appeal.
4
11. Nothing in the court's jury instructions
can reasonably be construed to have placed any burden on the
defendant to justify a life sentence. See Ford v. State,
257 Ga. 461 (2) (360 SE2d 258) (1987).
12. The jury found that the offense of murder
(a) was committed while the defendant was engaged in the
commission of the offense of armed robbery and (b) was
outrageously and wantonly vile, horrible and inhuman in that it
involved aggravated battery. See OCGA
17-10-30 (b) (2) and (b) (7). The evidence supports these
findings. OCGA 17-10-35 (c) (2).
See Taylor v. State, supra (13 c).
13. We do not find that the sentence of death
was imposed as the result of passion, prejudice or other
arbitrary factor, OCGA 17-10-35
(c) (1), or that it is either excessive or disproportionate to
sentences imposed in similar cases, considering both the crime
and the defendant. OCGA 17-10-35
(c) (3). The similar cases listed in the Appendix support the
imposition of a death sentence in this case.
APPENDIX.
James L. Wiggins, District Attorney, Timothy
G. Vaughn, Cheryl L. Alford, Assistant District Attorneys,
Michael J. Bowers, Attorney General, Thomas A. Cox, Jr., for
appellee.
Notes
1 The crime
occurred on February 2, 1990. Gibson was arrested the same day.
He was indicted February 20, 1990, and tried June 11 through 14,
1990. He filed a motion for new trial on June 21 which was heard
on October 22 and denied November 19, 1990. He filed a notice of
appeal, and the case was docketed in this court on January 19,
1991. After extensions of time were granted to the parties, the
appeal was argued orally on April 8, 1991.
2 We note
that the defendant does not complain about the legality of his
warrantless arrest.
3 See Eason
v. State, 260 Ga. 445 (396 SE2d 492)
(1990), which discusses a defendant's right to
information in the possession of the state crime laboratory.
4 We note
that the defendant was allowed to examine the state's file
before trial. It is not likely that he was unaware of the letter.
W. Dennis Mullis, for appellant.
DECIDED JUNE 10, 1991.
GIBSON v. TURPIN.
97.
(270 Ga. 855)
(513 SE2d 186)
(1999)
HINES, Justice.
Habeas corpus. Butts Superior Court. Before Judge Overstreet
from Augusta Circuit.
Exzavious Lee Gibson was convicted of armed
robbery and malice murder in 1990, and was sentenced to death.
This Court affirmed the judgments of Conviction and sentences
entered thereon on direct appeal, Gibson v. State,
261 Ga. 313 (404 SE2d 781) (1991),
and the United States Supreme Court denied certiorari. Gibson v.
Georgia, 502 U. S. 1101 (112 SC 1188, 117 LE2d 430) (1992). On
December 20, 1995, Gibson filed a petition for writ of habeas
corpus asserting ineffective assistance of counsel,
prosecutorial misconduct, and other claims. The habeas corpus
court denied Gibson's request for relief on March 11, 1997, and
he filed an application for certificate of probable cause to
appeal with this Court. Because there is no state or federal
constitutional right to an appointed lawyer upon habeas corpus
and because Gibson's remaining claims are without merit, we deny
Gibson's application for certificate of probable cause to
appeal.
The evidence supporting Gibson's convictions
and death sentence is detailed in Gibson, 261 Ga. at 313-314
(1). Gibson entered a grocery store and killed the owner with a
knife by stabbing and slashing him 39 times. He attacked with
such force that the blade of the knife broke in the victim's
neck vertebrae, and still he continued stabbing with the handle
and blade remnant. Acting on information provided by a witness,
the police arrested Gibson at his house. Bloody money, bloody
clothes and the victim's wallet were found in Gibson's bedroom.
Gibson confessed that he robbed and murdered the victim because
he needed money for drugs, and because he had been in the store
earlier on the day of the crimes and the victim had chastised
him for using profanity. Gibson also told the police that he had
no regrets about what he had done.
1. Gibson claims that he was denied his
constitutional rights because he did not have state-funded
counsel to represent him during his habeas corpus proceedings.
Gibson's direct appeals were exhausted in 1992, when the United
States Supreme Court denied his petition for certiorari and
motion for rehearing. With the assistance of the Georgia
Appellate and Educational Resource Center ("Resource Center"),
Gibson filed his petition for writ of habeas corpus on December
20, 1995. He was not facing a scheduled execution date when the
petition was filed. Gibson and the Resource Center, who appeared
as amicus curiae throughout his case, repeatedly moved for a
continuance of the evidentiary hearing because the Resource
Center had not located volunteer counsel to represent him. The
Resource Center also repeatedly claimed that it lacked the staff
to directly represent him. The motions for a continuance were
denied.
At the habeas corpus evidentiary hearing in
September 1996, a lawyer with the Resource Center, Elizabeth
Wells, appeared as amicus curiae to protest the case going
forward. The habeas court invited Ms. Wells to represent Gibson,
but she refused. Ms. Wells stated that the Resource Center would
represent Gibson as counsel of record, but only if the habeas
court would reschedule the case so as to allow her time to
review the record. The habeas court declined granting a
continuance based on this conditional offer. After the
evidentiary hearing, the habeas court issued a final order
denying Gibson relief from his convictions and sentences. Gibson
maintains that his constitutional rights were violated because
the State of Georgia did not provide him with a state-funded
attorney for his habeas corpus proceedings. We disagree.
It is well settled that there is no federal
or state constitutional right to appointed counsel in Georgia
habeas corpus proceedings. Coleman v. Thompson, 501 U. S. 722,
755-758 (111 SC 2546, 115 LE2d 640) (1991) (capital case);
Murray v. Giarratano, 492 U. S. 1, 11-12 (109 SC 2765, 106 LE2d
1) (1989) (capital case); Pennsylvania v. Finley, 481 U. S. 551,
555 (107 SC 1990, 95 LE2d 539) (1987); State v. Davis,
246 Ga. 200, 201-202 (269
SE2d 461) (1980) (capital case); Stephens v. Balkcom,
245 Ga. 492, 492-493 (3) (265
SE2d 596) (1980). Under the United States Constitution,
the state is required to provide counsel to indigent defendants
for their trial, Gideon v. Wainwright, 372 U. S. 335 (83 SC 792,
9 LE2d 799) (1963), and for their first appeal as a matter of
right, Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d
811) (1963), but no further. The Constitution does not even
require states with multi-tiered appellate systems to appoint
appellate counsel through the exhaustion of an indigent
defendant's discretionary direct appeals. Ross v. Moffitt, 417
U. S. 600 (94 SC 2437, 41 LE2d 341) (1974).
After his direct appeals are ended, a
prisoner may seek a writ of habeas corpus alleging that his
trial and direct appeals included substantial error under the
federal or state constitutions. OCGA
9-14-42 (a). However, habeas corpus is not a criminal
proceeding, but is considered to be civil in nature. Finley, 481
U. S. at 557; Nolley v. Caldwell, 229 Ga.
441, 441 (4) (192 SE2d 151)
(1972). It is a collateral attack that is separate and distinct
from direct review, and occurs only after a prisoner has failed
to obtain relief by direct appeal. Id. It is not an extension of
direct appeal:
Habeas corpus always has been a collateral
remedy, providing an avenue for upsetting judgments that have
otherwise become final. It is not designed as a substitute for
direct review.
(Emphasis in original.) Mackey v. United
States, 401 U. S. 667, 682-683 (91 SC 1160, 28 LE2d 404) (1971)
(Harlan, J., concurring in part and dissenting in part). Habeas
corpus is not intended to be a means for re-litigating a
prisoner's case. See Gunter v. Hickman,
256 Ga. 315, 316 (1) (348 SE2d 644)
(1986) (issues raised and decided on direct appeal cannot be
reasserted in habeas corpus proceedings); Black v. Hardin,
255 Ga. 239, 240 (4) (336
SE2d 754) (1985) (failure to raise an alleged error on
direct appeal will ordinarily preclude habeas corpus review). No
state is obligated under the United States Constitution to
provide habeas corpus proceedings as a means of obtaining post-conviction
relief. Finley, 481 U. S. at 557. Habeas Corpus review is not a
second trial.
Exzavious Lee Gibson was arrested nine years
ago for murder. Because he was indigent, the trial court
appointed a lawyer who was experienced in death penalty
litigation to defend him at the state's expense. Gibson's lawyer
investigated and tried the case. A jury of Gibson's peers, after
receiving the overwhelming evidence of his guilt and the
brutality of the murder, convicted him and sentenced him to
death. Gibson's appointed, state-funded lawyer appealed, raising
numerous enumerations of error. This Court, finding no harmful
error with Gibson's trial, unanimously affirmed his convictions
and sentences. Gibson, 261 Ga. at 317. The entire process, trial
and direct appeal, was governed by the Unified Appeal Procedure
("UAP"), OCGA 17-10-36, which
utilizes a checklist to ensure that "all possible matters which
could be raised in defense have been considered by the defendant
and defense counsel and either asserted in a timely and correct
manner or waived in accordance with applicable legal
requirements." OCGA 17-10-36 (b);
UAP I (A). An appointed lawyer represented Gibson at every stage
of his Criminal defense.
After his direct appeals were exhausted,
Gibson exercised his right under the Georgia constitution to
petition for writ of habeas corpus. However, he asserts that
this is an empty right because the lack of a state-funded lawyer
prevents him from adequately raising his claims. This Court has
previously addressed whether the lack of appointed counsel
denies an indigent death-row petitioner meaningful access to the
Courts under Bounds v. Smith, 430 U. S. 817 (97 SC 1491, 52 LE2d
72) (1977), and has held that it does not. Davis, 246 Ga. at
201. In Davis, this Court further held that there is no
exception for death-row inmates based upon the irrevocability of
death, reasoning that, if meaningful access to the courts meant
appointed counsel, all habeas Corpus petitioners would be
entitled to appointed counsel. Id.
The dissent seeks to stretch the right of
meaningful access to the courts beyond its constitutional bounds.
Meaningful access means that state authorities must ensure that
inmates have " 'a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the
Courts.' " Lewis v. Casey, 116 SC 2174, 2180 (1996), quoting
Bounds, 430 U. S. at 825. For example, a state may not interfere
with an inmate's attempt to prepare or file legal documents, and
a state must waive filing fees for indigent inmates. Lewis, 116
SC at 2179. Meaningful access does not mean that a state must
help inmates discover grievances, or litigate effectively when
in court. Lewis, 116 SC at 2181. It is simply the right of an
inmate to raise his claims and be heard.
Gibson does not allege that Georgia did
anything to prevent him from raising his claims. Instead, he
asserts that Georgia should have financed his habeas corpus
litigation by providing him with a lawyer at state expense. In
other words, he raised his claims, but not as effectively as he
would have preferred. Gibson, however, has cited no cases that
entitle him to a lawyer in order to have meaningful access to
the courts. While the United States Supreme Court has provided
some examples of what resources provided to inmates may
constitute meaningful access to the courts upon habeas corpus,
such as adequate law libraries, Bounds, 430 U. S. at 830, it has
never held that an appointed attorney is required. Indeed, the
Supreme Court has specifically disclaimed the idea that the
Constitution requires the permanent provision of counsel so that
inmates can litigate more effectively. Lewis, 116 SC at 2181.
The apparent rationale underlying Gibson's
claim of lack of meaningful access to the courts is that he is
not intelligent and habeas corpus law is complex ("Byzantine").
This rationale, however, does not distinguish him from the many
non-capital habeas petitioners. Numerous prisoners have limited
intellect and education, and many issues that arise in
non-capital cases are complicated. The test for ineffective
assistance of counsel outlined in Strickland v. Washington, 466
U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), and Smith v.
Francis, 253 Ga. 782 (325 SE2d 362)
(1985), and the required showings necessary to prevail on
this claim, are the same for non-capital cases as capital cases.
If an appointed lawyer is truly constitutionally required in
order to ensure meaningful access to the courts upon habeas
corpus, courts would be hard-pressed to justify why only death-row
inmates, and not all inmates, should have this constitutional
right. "Death is different" is the only reason that this line
could be drawn.
The "death is different" reason is often used
to justify additional procedures and closer scrutiny in death
penalty cases. The phrase is correct: death is different. Death
penalty cases do require closer examination and the additional
safeguards provided by law.
The citizens of this state should be, must
be, appalled at the prospect of executing an innocent person, or
a murderer undeserving of the ultimate punishment. But anyone
familiar with the facts that underlie this petitioner's
convictions and sentences, of what he did to a shopkeeper on
February 2, 1990, knows that Exzavious Lee Gibson is neither
innocent nor undeserving of the death penalty "Death is
different" is a crucial reminder of the gravity of a sentence
where the state seeks to punish a defendant by taking his life,
and of the need for procedural safeguards in the determination
and carrying out of such a sentence, but it should not be used
to construct constitutional rights that do not exist, or to
usurp the legislature's role in determining the structure of our
criminal justice system and the allocation of legal resources.
Neither the federal nor Georgia constitutions require the
appointment of a lawyer for a death-row inmate to have
meaningful access to the courts upon habeas corpus. Giarratano,
492 U. S. at 11-12; Davis, 246 Ga. at 201.
The lack of appointed counsel upon state
habeas corpus is also not "fundamentally unfair." Obviously, an
attorney could better investigate, structure, and present
Gibson's habeas claims than Gibson could. But this simple fact
does not support an equal protection claim:
The duty of the State under our cases is not
to duplicate the legal arsenal that may be privately retained by
a criminal defendant in a continuing effort to reverse his
conviction, but only to assure the indigent defendant an
adequate opportunity to present his claims fairly in the context
of the State's appellate process.
Finley, 481 U. S. at 556, quoting Ross, 417
U. S. at 616. Nor does it support a due process claim because
the existence of habeas corpus " 'does not automatically mean
that a State then acts unfairly by refusing to provide counsel
to indigent defendants at every stage of the way.' " Finley, 481
U. S. at 556, quoting Ross, 417 U. S. at 610-611.
Gibson further argues that he has a
constitutional right to a state-funded lawyer upon habeas corpus
because, as he had the same lawyer at trial and on direct
appeal, it is his first opportunity to raise a Sixth Amendment
claim of ineffective assistance of counsel. This argument, which
the dissent asserts was left an "open question" by Coleman, 501
U. S. at 755-756, has since been rejected by every federal court
of appeals that has considered it. Mackall v. Angelone, 131 F3d
442, 449, n. 13 (4th Cir. 1997); Parkhurst v. Shillinger, 128
F3d
1366, 1371 (10th Cir. 1997); Hill v. Jones,
81 F3d 1015, 1024-1026 (11th Cir. 1996); Bonin v. Calderon, 77
F3d 1155, 1159-1160 (9th Cir. 1996); Nolan v. Armontrout, 973
F2d 615, 616-617 (8th Cir. 1992). Two additional reasons for not
creating this constitutional right bear consideration. First, as
with meaningful access, if a constitutional right to habeas
counsel exists for this reason it would apply to almost all
habeas corpus petitioners, and not just to death-row inmates.
Second, a constitutional right to habeas counsel, carried to its
logical conclusion, would spawn more litigation and delay in an
already cumbersome system. This Court and the United States
Supreme Court have long held that the constitutional right to
counsel is the right to effective counsel. Strickland, 466 U. S.
at 686; McMann v. Richardson, 397 U. S. 759, 771, n. 14 (90 SC
1441, 25 LE2d 763) (1970); Black v. State,
264 Ga. 550 (1) (448 SE2d 357) (1994);
Pitts v. Glass, 231 Ga. 638, 639 (203
SE2d 515) (1974). Presumably, if there is a
constitutional right to counsel upon state habeas corpus, an
additional Sixth Amendment claim will exist in Georgia:
ineffective assistance of habeas counsel. See Wainwright v.
Torna, 455 U. S. 586, 587-588 (102 SC 1300, 71 LE2d 475) (1982)
(a defendant can only be deprived of his Sixth Amendment right
to effective assistance of counsel where there is a
constitutional right to counsel).
Also, if the same reasoning applies, a
petitioner who raises this new claim must have appointed counsel
to do so, because it is his first opportunity to raise this
constitutional claim with regard to his habeas counsel. There
will be collateral proceedings to consider alleged Sixth
Amendment error in previous collateral proceedings. See
Bejarano, 929 P2d at 925 (if ineffective assistance of post-conviction
counsel is a viable claim then "claims of ineffective assistance
of counsel in the immediate prior proceeding may be raised ad
infinitum").
In determining what is constitutionally
required, a relevant inquiry is also what is the contemporary
practice. As part of his claim of lack of fundamental fairness,
Gibson asserts that Georgia is one of only two states that does
not permit-appointed counsel for indigent death-sentenced habeas
corpus petitioners. However, closer examination reveals that no
state, save for Mississippi, has recognized a constitutional
right to appointed counsel upon habeas corpus. See Jackson v.
State, No. 98-DR-00708-SCT, 1999 WL 33904 (Miss. Jan. 28, 1999).
Almost every jurisdiction that provides state-funded counsel to
indigent death-row habeas corpus petitioners does so by statute.
See Ala. Code 15-12-23 (a) (1995)
(subject to judicial discretion); Ariz. Rev. Stat. Ann. 13-4041
(B), 13-4234 (D) (West Supp. 1998); Ark. Code Ann.
16-91-202 (a) (1) (Michie Supp.
1997); Cal. Gov't Code 68662 (West Supp. 1999); Colo. Rev. Stat.
21-1-104 (1997); Conn. Gen. Stat.
51-296 (a) (1998); Fla. Stat. Ann. 27.702 (West Supp. 1999);
Idaho Code 19-4904 (Michie 1997) (subject to judicial discretion);
725 Ill. Comp. Stat. Ann. 51122-2.1 (a) (1) (West 1992); Ind.
Code Ann. 33-1-7-2 (a) (Lexis
1998); Kan. Stat. Ann. 22-4506 (1995) (subject to judicial
discretion); Ky. Rev. Stat. Ann. 31.110 (2) (c) (Banks-Baldwin
1991); La. Code Crim. Proc. Ann. art. 930.7 (West 1997) (subject
to judicial discretion); Md. Ann. Code art. 27, 645A (f) (1)
(1998); Mo. Ann. Stat. 600.042 (West Supp. 1999); Mont. Code Ann.
46-21-201 (1997); Neb. Rev. Stat.
Ann. 29-3004 (Michie 1995) (subject to judicial discretion); Nev.
Rev. Stat. Ann. 34.750 (1) (Michie 1996) (subject to judicial
discretion); N.J. Stat. Ann. 2A:158A-5 (West Supp. 1998); N.Y.
Jud. Law 35-b (McKinney Supp. 1999); N.C. Gen. Stat. 7A-451 (a)
(2) (1995); Ohio Rev. Code Ann. 120.06, 120.16, 120.26 (Anderson
1998) (subject to public defender discretion); Okla. Stat. Ann.
tit. 22 1355.6 (B) (West Supp. 1999); Or. Rev. Stat. 138.590 (3)
(1990); S.C. Code Ann. 17-27-160
(B) (West Supp. 1998); S.D. Codified Laws
21-27-4 (Michie 1987); Tenn. Code Ann.
40-30-306 (a) (1997); Tex. Crim.
P. Code Ann. 11.071 (West Supp. 1999); Utah Code Ann.
78-35a-202 (1998); Va. Code Ann.
19.2-163.7 (Michie 1995); Wash. Rev. Code Ann. 10.73.150 (West
Supp. 1998); see also 21 USC 848 (q) (4) (B) (right to qualified
legal representation for capital petitioners in federal habeas
corpus proceedings). The contemporary practice thus illustrates
that a law providing appointed counsel to indigent death-row
habeas petitioners usually results from legislative enactment,
not judicial fiat.
Gibson claims that Georgia is
constitutionally required to provide counsel in death penalty
habeas corpus proceedings in order to ensure the fundamental
fairness of Georgia's death penalty procedures and meaningful
access to the courts. This assertion, which ignores the
collateral purpose of habeas corpus, would lead to the judicial
creation of a right not found in the federal or state
constitutions, or resulting from the exercise of the legislative
process. We do not say that a law providing state-funded counsel
to indigent death-row habeas petitioners lacks merit. In fact,
such a law might be good policy. "But, while we have an
obligation to insure that constitutional bounds are not
overreached, we may not act as judges as we might as legislators."
Gregg, 428 U. S. at 174-175. A law requiring appointed counsel
for capital habeas petitioners is not constitutionally compelled,
and therefore, the decision to create such a law rightfully
belongs to the General Assembly.
2. Gibson alleges that his trial counsel was
ineffective due to numerous errors and omissions, including
failure to object to preserve error at trial, failure to make
important pretrial motions, and failure to adequately
investigate and present key mitigation evidence. Gibson's trial
counsel testified at the habeas corpus evidentiary hearing and
we have examined the record from that hearing and the record of
Gibson's trial and direct appeal.
In order to prevail on a claim of ineffective
assistance of counsel, Gibson must show that his trial Counsel's
performance was deficient and that this deficient performance
actually prejudiced his defense. Strickland, 466 U. S. at 687;
Smith, 253 Ga. at 783 (1). Under this standard, Gibson's trial
counsel is afforded a strong presumption that his performance
fell within a wide range of reasonable professional conduct.
Smith, supra. To show actual prejudice, Gibson must demonstrate
that, but for trial counsel's deficient performance, there is a
reasonable probability that the result of the trial would have
been different. Id.
Based on the record, we are able to determine
the following: Gibson's counsel, William Dennis Mullis, was
appointed to defend Gibson shortly after his arrest. Mr. Mullis
was the contract public defender for the judicial circuit, and
had previously defended two death penalty cases. Mullis met with
Gibson many times before trial and found him to be rational and
cooperative. Gibson was able to assist Mullis by providing the
names of potential mitigation witnesses.
The evidence of Gibson's guilt was
overwhelming. A witness saw and recognized Gibson running from
the grocery store immediately after the killing. A police
officer, acting on this information, went to Gibson's house only
15 minutes after the murder, and was invited inside by Gibson's
grandmother. The police officer followed a trail of fresh blood
droplets back to Gibson's bedroom where he discovered bloody
money, bloody clothes and the victim's wallet. Gibson was found
hiding in a closet. His shoes were consistent with bloody shoe
prints found in the grocery store. Gibson gave two statements,
one written and one videotaped. In both statements he confessed
to the murder and armed robbery.
Mullis investigated Gibson's case. He
examined the entire state's file because the district attorney
had an open file policy. He interviewed several law enforcement
witnesses and the woman who had seen and recognized Gibson
leaving the grocery store after the murder. He called the doctor
who conducted the autopsy. Mullis filed several discovery
motions, including a Brady motion, and he attempted to subpoena
employees of the state crime lab to produce their testing
materials. In addition to a court-ordered psychological
evaluation to determine competency, Mullis successfully moved
for an independent psychological evaluation.
Mullis filed additional pretrial motions. He
moved to suppress the items discovered in Gibson's bedroom,
claiming an illegal warrantless search. He moved to suppress
Gibson's statements, claiming that Gibson had been under the
influence of narcotics when he waived his Miranda rights. Mullis
also moved for a change of venue because there had been several
articles in local newspapers that he believed to be
inflammatory. The trial court reserved ruling on the change of
venue request until the completion of voir dire, and then denied
it due to the few jurors biased by pretrial publicity. The trial
court granted a motion requesting the completion of a pretrial
juror questionnaire.
The psychologist who performed the
court-ordered evaluation was Dr. Robert J. Storms. Dr. Storms
determined that Gibson was competent to stand trial and was not
insane at the time of the murder. Mullis contacted Dr. Storms
regarding possible mitigation issues and Dr. Storms informed him
that Gibson's IQ was in the 80s, and that he was not mentally
retarded. Dr. Storms also told Mullis that he had not uncovered
any past history of child abuse, and that Gibson had been in
considerable trouble with the law, leading to stays in various
youth detention institutions. Dr. Storms stated that Gibson "had
not had a particularly wonderful upbringing" and "it seems like
he essentially raised himself."
Another psychologist, Dr. George T. Anderson,
performed the independent examination of Gibson. He reported to
Mullis that Gibson had a tested IQ of 76, which is borderline
intelligence, but that Gibson was "certainly not retarded." Dr.
Anderson stated that Gibson's IQ was probably five or six points
higher than he tested because Gibson had not tried very hard on
the test -- he "didn't act like he cared one way or the other."
Dr. Anderson also reported that Gibson's mother died when he was
two years old, that his father had not been involved in his life,
and that he was raised by an aunt in Maryland. Gibson abused
alcohol and drugs, and had spent some time in a juvenile
facility and a Florida jail for a variety of offenses. Gibson
has no brothers or sisters.
Mullis contacted Gibson's family members
about possible mitigation evidence. The aunt who raised Gibson,
Faustine Christopher, agreed to testify. Mullis also spoke with
another aunt and Gibson's grandmother. Gibson told Mullis that
Christopher had used corporal punishment on him, but no
relatives Corroborated any history of childhood abuse. Although
Gibson's grandmother lived in Dodge County, she did not testify
because she "didn't want to get involved" and Mullis believed
that she could not offer much favorable evidence. Mullis did
locate an acquaintance in Dodge County who agreed to testify
about Gibson's peaceful nature (Gibson had only lived in Dodge
County about two months before the murder).
Despite the overwhelming evidence of Gibson's
guilt, Mullis did not believe anything would be gained by
pleading guilty and going to trial only on sentencing. At trial,
Mullis successfully moved to prevent the jury from seeing the
video portion of Gibson's confession because it depicted Gibson
wearing handcuffs, and he was successful in keeping out
cumulative photographs of the victim's body. Mullis was also
concerned about the autopsy report, which indicated that the
victim had been paralyzed from the neck down by the stab wound
that broke the knife blade. He believed that this would be very
damaging aggravation evidence because the jury would hear that
Gibson had continued to assault a helpless victim.
After the autopsist testified that the neck
wound had left the victim as helpless as a "rag doll" and that
Gibson had continued to stab with the remnant of the knife,
Mullis managed to impeach the autopsist with a statement he made
to Mullis during their pretrial telephone conversation. The
doctor conceded that the neck wound that resulted in the broken
blade could have been the final wound.
During the sentencing phase, the state
introduced evidence of an escape attempt by Gibson. Three months
before trial, Gibson escaped from his cell at the city jail and
was caught inside the building. The police discovered a letter
addressed "To the Police" on Gibson's bunk when they first
noticed he was missing. Gibson's letter described his
magnificent escape" in a mocking, condescending tone.
The letter and police testimony about the
escape were introduced over defense objection. To counter this
evidence, Mullis used Gibson's testimony in the sentencing phase
to explain that this event was not actually an escape but an
attempt to get transferred from the city jail to the County jail,
which Gibson believed to be more comfortable. Regarding the
letter, Mullis testified at the habeas Corpus hearing that he
had warned Gibson, as he does all his clients, not to write
anything in jail that could be used by the state, but Gibson had
ignored him.
Mullis testified that his mitigation strategy
was "two-pronged." He planned to focus on Gibson's youth (17
years old at the time of the murder) and his lack of a home life
while growing up. Gibson's aunt, Faustine Christopher, testified
that Gibson's father had left his mother when Gibson was only a
few months old, and that his parents had never been married.
When Gibson was only two years old, his mother was murdered. Ms.
Christopher further testified that she raised Gibson, who was a
playful child until he began to get into trouble when he was 14
years old.
Another witness, Sharon Jordan, testified
that she had known him during the short time he had lived in
Dodge County and that he had a peaceful nature. Then Gibson
testified, expressing remorse and explaining that he had been
high on drugs when he killed the victim. He also testified that
he was only 17 years old when he committed the murder. In his
closing argument, Mullis invoked Gibson's youth and his lack of
a family while growing up. He implored the jury to spare Gibson,
saying to do so would be Christian. The jury returned a
recommendation of death.
Mullis's representation of Gibson was not
deficient. See Strickland, 466 U. S. at 687. Mullis investigated
Gibson's possible defenses, interviewed key witnesses, and
discovered that Gibson was competent and not mentally retarded.
Mullis therefore elected to present evidence in the sentencing
phase of Gibson's youth, his remorse, and his childhood without
parents. We cannot conclude that this decision was not made in
the exercise of reasonable professional judgment. Id. at 690;
Smith, 253 Ga. at 783 (1). In addition, the record reveals that
Mullis filed numerous relevant pretrial motions and made timely
objections at trial. Mullis's conduct fell within the wide range
of reasonable professional conduct permitted in Strickland. Id.
Furthermore, even if we were to assume that
Gibson's counsel was deficient, Gibson cannot show actual
prejudice. Strickland, 466 U. S. at 694; Smith, supra. The
murder was extremely brutal; the victim was savaged with dozens
of stab and slash wounds. The attack was so violent the victim's
spinal cord was severed and knife blows to the head resulted in
superficial skull fractures. In his recorded statement, Gibson
told the police that he had entered the store and begun stabbing
the victim without saying anything or giving the victim a chance
to turn over the money without a fight. He said that he had no
regrets about what he had done. Gibson's escape attempt, in
conjunction with his mocking letter to the police, also showed
that he was a difficult prisoner and an escape risk.
In addition, two psychological examinations
revealed that Gibson was not mentally ill or retarded. Under
these circumstances, Gibson cannot demonstrate that there was a
reasonable probability that, assuming his lawyer's
representation was deficient, the outcome of his trial would
have been different. Id. The habeas court did not err by denying
Gibson's claim of ineffective assistance of trial counsel.
3. Gibson asserts that the habeas court erred
by scheduling his case to conform with the time limits
established by Uniform Superior Court Rule 44 for the litigation
of a Capital habeas corpus case. This claim is without merit.
Davis v. Thomas, 266 Ga. 835, 838
(471 SE2d 202) (1996) (habeas
court has broad discretion in controlling its calendar).
4. The habeas court's adoption of a final
order drafted by the state was not error. Jefferson v. Zant,
263 Ga. 316, 316-317 (1) (431
SE2d 110) (1993).
5. Gibson's remaining habeas claims are
procedurally defaulted because they could have been raised on
direct appeal and were not. Black, 255 Ga. at 240 (4); OCGA
9-14-48 (d). These claims include
allegedly prejudicial remarks made by the state in its closing
argument, the state's alleged failure to disclose exculpatory
evidence, and the constitutionality of the Unified Appeal
Procedure.
FLETCHER, Presiding Justice, dissenting.
I dissent because the state and federal
constitutions require appointment of counsel for a death penalty
inmate who is pursuing his first habeas corpus petition and who
is seeking to challenge his conviction and sentence on a basis
not available on direct appeal. Counsel for this habeas
petitioner is required in order to protect the constitutional
guarantee of meaningful access to the courts because of the
complexity of habeas corpus law and the importance of habeas
review in ensuring fundamental fairness in capital cases.
The same counsel represented Gibson at trial
and on direct appeal. This habeas petition is therefore Gibson's
first opportunity to challenge his conviction and sentence on
the ground of ineffective assistance of counsel. The habeas
court denied the motion of amicus for a continuance for
obtaining pro bono counsel and conducted an evidentiary hearing
over Gibson's objection that he had no attorney. The record
shows that Gibson has an eighth grade education and is in the "borderline
range of intelligence" with an IQ between 76 and 82. Following
the hearing, the Court made an ex parte request of the state to
prepare an order, which the court then adopted verbatim.
The Georgia Constitution guarantees the right
to seek habeas corpus relief. The right to seek habeas review
includes the right to meaningful access to the courts to pursue
the habeas challenge. As this Court recently stated, "[p]risoner
access to the courts in order to challenge unlawful convictions
. . . cannot be unjustifiably denied or obstructed." The federal
constitution provides similar protections.
The question becomes whether meaningful
access and fundamental fairness require appointment of counsel
in a capital post-conviction proceeding that provides the first
opportunity to raise a constitutional challenge to the
conviction and sentence. This is a question that the United
States Supreme Court has never addressed and has specifically
left open.
The majority's reliance on Murray v.
Giarratano and State v. Davis is unpersuasive because neither
case involved a death penalty inmate who was forced to proceed
at his first habeas proceeding without counsel. Giarratano was
not a habeas proceeding, but was a civil rights case seeking
broad prospective relief. As Justice Kennedy observed in casting
the deciding vote in Giarratano, Virginia already provided
institutional lawyers to assist in preparing postconviction
petitions and "no prisoner on death row in Virginia has been
unable to obtain counsel to represent him in post conviction
proceedings."
Similarly, Davis was never without counsel;
he was simply without compensated counsel. In Davis, this Court
held only that the trial court erred in "appointing" the
Prisoner Legal Counseling Project, and thus providing for
payment. The Court noted that lawyers with the PLCP were already
providing legal advice and representation on a volunteer basis.
The first factor to consider in addressing
the question of whether the constitution requires appointed
counsel is the nature of the proceedings. The United States
Supreme Court has recognized that an attorney's assistance in
capital post-conviction proceedings is "crucial because of the
complexity of . . . jurisprudence in this area." As Justice
Kennedy observed in Giarratano, post-conviction proceedings are
a "central part of the review process for prisoners sentenced to
death." Troubling statistics confirm this: nearly half (46%) of
all capital cases reviewed in federal habeas proceedings between
1976 and 1991 were found to have constitutional error.
In 1996, this Court also recognized the
importance of counsel when Chief Justice Benham sent letters to
approximately 80 law firms across this state requesting that
each firm agree to represent an individual in a capital post-conviction
case on a pro bono basis. As this case demonstrates, however,
reliance on pro bono counsel is no longer adequate. Recently,
the Supreme Court of Mississippi recognized that such reliance
is insufficient and granted a motion for appointed and
compensated counsel for a death row inmate in state post-conviction
proceedings.
That court recognized that the uniqueness of
death as a sentence and the complexity of post-conviction
procedures require counsel in order to provide meaningful access
to the courts.
The need for counsel is even greater with the
passage of the Anti-Terrorism and Effective Death Penalty Act of
1996, 28 U.S.C. 2254, 2262-66, Georgia's Death Penalty Habeas
Corpus Reform Act of 1995, OCGA 9-14-44,
et seq., and Uniform Superior Court Rule 44. Together these
enactments impose strict time limitations on habeas petitions in
death penalty cases. A prisoner sentenced to die must file his
or her federal habeas petition within one year of the conviction
becoming final, with tolling allowed if state post-conviction
proceedings are pending.
In Georgia, Rule 44 requires that a habeas
petitioner file all pretrial motions within 60 days of filing a
petition and complete discovery within 120 days. Rule 44 also
requires the evidentiary hearing to be conducted within 180 days
of the filing of the petition. Failure to meet these
requirements will result in the absence of any hearing on the
merits for the habeas petitioner. Furthermore, as the State Bar
of Georgia points out in its amicus brief, the strict time
limits of this rule actually discourage lawyers from accepting
the Chief Justice's plea for pro bono assistance because the
rules do not permit adequate time to become familiar with the
Byzantine requirements of habeas corpus law.
It is also important to consider the claims
being raised in the habeas petition. In this case, Gibson is
seeking to challenge the effectiveness of his trial counsel, an
issue that he has not been able to assert previously. It is well-established
that indigent defendants are entitled to counsel for the direct
appeal from the judgment of conviction and sentence.
A state that permits a defendant to raise a
constitutional challenge to his death sentence only after the
right to counsel has expired is treading heavily on the Sixth
Amendment right to counsel, especially in light of the unusual
importance of post-conviction proceedings in capital cases.
Repeated reversals of convictions and death sentences in habeas
proceedings demonstrate that the protections given in the trial
and direct appeal stages of death penalty cases are often not
sufficient to assure their reliability. The fact that death
sentences are not reimposed following a successful habeas
petition underscores the importance of the habeas proceeding.
Furthermore, the United States Supreme Court
has previously recognized that due process may require
appointment of counsel in circumstances where the risk of an
erroneous decision is not nearly so great as in death penalty
litigation: in proceedings to terminate parental rights,
adjudicate juvenile delinquency, transfer prisoners to a state
mental hospital, and revoke parole, and to misdemeanor criminal
trials where even one day of imprisonment is imposed.
In determining the requirements of
"fundamental fairness," another relevant inquiry is the
contemporary practice. The federal government and all other
states provide a right to counsel in capital post-conviction
proceedings. Georgia is the only jurisdiction that fails to
provide a right to counsel in capital post-conviction cases.
While it is true that the mechanism for appointed counsel in
capital habeas proceedings usually has come about through the
state legislature, this fact is irrelevant for constitutional
analysis. If, as the majority concedes, contemporary practice is
relevant to determining the constitutional requirements, then
there is no rational basis for distinguishing the source. The
fact that other state legislatures have provided for counsel in
capital post-conviction proceedings may be a strong policy
consideration for Georgia's legislature, but it is a weak excuse
for this Court to evade its responsibility to ensure the
guarantees of the constitution.
The ultimate consideration and the one that
underlies all these arguments is that death is different. Its
finality as punishment demands special consideration. The
majority's response to the reality that "death is different" is
to focus on the facts of this case and make the subjective
determination that Gibson deserves the death penalty. That
decision is never appropriate for this Court to make; it is the
province of the jury. Even if it were an appropriate
determination for this Court, it cannot justify the denial of
due process. The majority's subjective conclusion that Gibson
deserves the death penalty ignores the tenet that "fundamental
fairness is the central concern of the writ of habeas corpus."
When a petitioner is on death row and pursuing his first habeas
petition, there can be no glimmer of hope that fundamental
fairness will prevail in the absence of counsel and, without a
procedure for appointed counsel, the right to meaningful access
to habeas review under the Georgia Constitution is lost.
For all these reasons, I conclude that
meaningful access to the right to seek habeas relief and
fundamental fairness in those proceedings demand appointment of
counsel for Gibson and I would reverse and would order a new
habeas hearing following appointment of counsel.
Because the Court has not granted the
certificate for probable cause to appeal, nor given the parties
the courtesy of an opportunity to submit briefs on the alleged
constitutional errors during the trial, I further believe that
it is inappropriate to consider those issues as the Court does
in division 2.
I am authorized to state that Chief Justice
Benham and Justice Sears join in this dissent.
SEARS, Justice, dissenting.
I fully concur with Presiding Justice
Fletcher's dissent. The official taking of a human life is the
ultimate governmental exercise of control and power over
individual liberty. If it is to be done, it must be done
cautiously, dispassionately, soberly, and fairly. And
fundamental fairness demands that a condemned prisoner have the
benefit of competent counsel to articulate his constitutional
claims and to navigate the procedural and substantive morass
that is our habeas corpus law. If this were not so, all states
but one that impose the death penalty would not require counsel
in these cases. Nevertheless, the majority today joins that one
state and requires a condemned man, without counsel, to bring
his claims for relief in an arcane process that he cannot
possibly understand in a court of law that (most likely) will
not be able to understand his constitutional concerns. This is
an outcome that no just government should countenance.
I am authorized to state that Chief Justice
Benham and Presiding Justice Fletcher join in this dissent.
William P. Smith III, General Counsel State
Bar, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Rogers &
Hardin, C. B. Rogers, Alston & Bird, G. Conley Ingram,
Kilpatrick Stockton, Miles J. Alexander, Gambrell & Stolz, Linda
A. Klein, David A. Webster, Gerald R. Weber, Jr., amici curiae.
Thurbert E. Baker, Attorney General,
Paige Reese Whitaker, Assistant Attorney General, for
appellee.
King & Spalding, Joseph R. Bankoff, for
appellant.
DECIDED FEBRUARY 22, 1999 -- RECONSIDERATION
DENIED APRIL 9, 1999.