Turpin v. Mobley
Turpin v. Mobley
Opinion of the Court
Stephen Anthony Mobley was convicted of malice murder, armed robbery and other crimes in 1994 and sentenced to death for the murder. This Court affirmed Mobley’s convictions and sentence in 1995,
The evidence adduced at trial showed that Mobley stole a .380
CLAIMS THAT ARE BARRED
1. Claims that were previously litigated and decided on direct appeal are barred because it is well-settled that “[a]fter an appellate review the same issue[] will not be reviewed on habeas corpus.”
In later cases, this Court has found that a Sabel discovery order can have a “chilling effect” when it forces the defense to choose against consulting an expert for fear that unfavorable reports would have to be given to the state.
CLAIMS THAT ARE DEFAULTED
2. A habeas petitioner who fails to raise an issue that he could have raised on direct appeal defaults the issue on habeas corpus, unless he can meet the cause and prejudice test.
[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.12
To show cause, Mobley must demonstrate that “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim that has been procedurally defaulted.”
Mobley has raised the following claims for the first time on habeas corpus that he could have raised on direct appeal: pros-ecutorial misconduct for allowing the former district attorney to allegedly testify falsely as to his reasons for rejecting Mobley’s plea offers, prosecutorial misconduct for failing to correct the false testi
INEFFECTIVE ASSISTANCE OF COUNSEL
3. Mobley’s claim of ineffective assistance of counsel is neither barred nor defaulted. An ineffective assistance of counsel claim does not need to be raised until trial counsel no longer represents the defendant.
In order to prevail on a claim of ineffective assistance of counsel, Mobley must show both deficient performance and actual prejudice.
In its final order, the habeas court ruled that trial counsel had been ineffective in investigating and presenting mitigating evidence in the sentencing phase. Specifically, the habeas court found that trial counsel failed to uncover significant mitigating evidence regarding Mobley’s alleged traumatic upbringing, failed to seek funds for an independent psychologist, failed to accept Mobley’s father’s funds to conduct a genetic test, and inadequately presented an unorthodox mitigating defense that attempted to show a possible genetic basis for Mobley’s conduct. A claim of ineffective assistance of counsel is a
A. The investigation.
Attorneys Dan Summer and Chuck Taylor were appointed to represent Mobley at his trial.
Having concluded that Mobley would be convicted due to the overwhelming evidence of his guilt, trial counsel focused on the sentencing phase and the development of mitigating evidence. Trial counsel interviewed Mobley’s relatives, who told them that Mobley had been a difficult child who had frequent problems with lying, cheating, stealing, vandalizing, setting fires, and being cruel to animals.
During his childhood, Mobley had been treated and evaluated by a number of psychologists and social workers. Trial counsel read all of these psychological records and consulted some of the mental health professionals who had treated Mobley. The psychological reports showed that Mobley had an average IQ and a conduct disorder manifested by a lack of a true values system. He was reported to be manipulative, self-centered and impulsive. Although some psychological reports early in Mobley’s childhood suggested that he
Mobley’s counsel sought to find what they called “traditional mitigation evidence.” They interviewed Mobley’s mother, father, and sister, all of whom reported that there was no physical or sexual abuse in Mobley’s childhood. Mobley’s parents also denied any birth trauma or alcohol abuse. Mobley himself denied that he had ever been physically abused, sexually abused or neglected. Additionally, poverty was not a mitigating issue because Mobley’s childhood standard of living had ranged from middle class to affluent. Trial counsel also found that Mobley had only one real friend, who was the owner of the car that he had used to commit the armed robberies (and who had told him that he could use the car to visit his family and look for a job).
The habeas court’s final order faults trial counsel for failing to interview Mobley’s maternal grandmother, who would have provided information that Mobley’s mother had been a perfectionist who sometimes yelled at Mobley when he was a child, and often sent him to his room. The habeas court further notes that trial counsel failed to obtain his birth records, which showed that Mobley may have had some difficulty breathing when he was a newborn. In addition to the grandmother’s testimony and the birth records, there was evidence presented that Mobley’s parents had used inconsistent parenting styles in trying to deal with their difficult son. Mobley’s father had tried spanking him, sometimes with a belt, but had given that up when it did not work. A psychologist testified that Mobley’s family had been a “classic family of alcohol,” but Mobley’s father denied being an alcoholic or having a drinking problem.
The adequacy of a trial attorney’s investigation into a defendant’s background is judged by a standard of reasonableness.
Further, even if the mitigating evidence presented at the habeas evidentiary hearing had been presented at trial, Mobley has not shown actual prejudice. The facts presented at the habeas hearing, considered collectively, show no extenuating circumstances in Mobley’s childhood, especially in light of Mobley’s early violent behavior. Additionally, the state presented substantial evidence in aggravation, including his prior convictions, lack of remorse, boasting of the crime, contemptuous comments regarding the victim, and sexual assaults of other inmates while awaiting trial. The aggravating evidence presented by the state clearly showed Mobley’s proclivity toward violence, future dangerousness, and utter lack of remorse over the murder. We conclude beyond a reasonable doubt that the limited additional mitigation evidence concerning Mobley’s childhood presented at the evidentiary hearing would not have changed the outcome of Mobley’s trial.
B. Failure to seek funds for an independent psychologist.
In its order, the habeas court found that Mobley’s counsel were ineffective for failing to seek funds to hire an independent psychologist. The trial court had ordered a mental evaluation of Mobley and the state psychologist reported that Mobley was sharp-witted with above-average intelligence. Mobley had no delusions or hallucinations and was competent to assist in his defense.
The evidence shows that Mobley’s counsel had reviewed all the previous psychological reports and had consulted several doctors who had treated Mobley as a child. In addition, trial counsel planned to call a psychologist who had treated Mobley when he was sixteen years old to testify on Mobley’s behalf in the sentencing phase. Trial counsel considered hiring an expert psychologist but decided against
C. Failure to accept Mobley’s father’s funds for a genetic test.
While searching for a reason to explain Mobley’s behavior, Summer read an article about a researcher in the Netherlands who had studied a possible genetic basis for violent behavior. The study tracked several generations of a family that had a number of members with histories of violent and antisocial behavior, and the researcher discovered a possible link between this behavior and a point mutation in a structural gene for monoamine oxidase. According to the article, this study was the first time researchers had discovered a genetic disturbance directly related to violent or antisocial behavior.
Summer investigated the use of this genetic link to violence as a possible mitigation defense. He contacted a professor of genetics at Harvard Medical School and reviewed the case with her. She informed Summer that he needed to conduct a Mobley family history to determine if there was a prevalence of violent behavior that might suggest a genetic predisposition. Summer then spoke with Joyce Ann Elders, Mobley’s father’s cousin, who was considered the family historian. She revealed to Summer that a number of people in the last three generations of the Mobléy family had exhibited aggressive and antisocial behavior. These people included a murderer, a rapist, an armed robber, several substance abusers, and several spouse abusers.
Summer then contacted the National Psycho Pharmacology Lab and a doctor at the Emory Nuclear Medicine Laboratory about the cost of preliminary testing to determine if Mobley had the same gene mutation as the people in the Netherlands study. Summer filed a “Motion for Continuance and Motion to Provide Funds for Expert Witness Assistance to Conduct Prehminary Analysis for MAOA Deficiency and other Genetic Analysis as Information Becomes Available” and supported the motion with his research, affidavits from doctors, and testimony from the family historian. After a hearing, the trial court denied Mobley funds to hire a geneticist and funds to con
The evidence shows that trial counsel decided against going forward with the genetic test because (1) they believed that there was only a slim chance that the genetic test would reveal that Mobley had the same genetic defect as the people in the Netherlands study, (2) they intended to present a genetic defense without the geneticist, by using the family historian, and (3) they believed that the trial court’s denial of funds might constitute reversible error and they wanted to preserve the issue for appeal. The first two reasons for declining the father’s offer were reasonable conclusions. Trial counsel’s desire to “preserve” the issue for appeal, however, was not a reasonable basis for the decision. We do not condone trial counsel foregoing a vigorous defense in the hope that a ruling might constitute error on appeal. If Mobley had prevailed on this issue on appeal, the reversal of the trial court would only result in a new trial in which counsel would have the assistance of a genetics expert, which is the same relief Mobley’s father offered in the beginning.
Nevertheless, we conclude that the decision regarding the genetic test was a reasonable strategic decision and therefore did not constitute ineffectiveness by trial counsel. The presence of one flawed reason does not render counsel’s otherwise reasonable strategic decision deficient performance. Additionally, Mobley was able to present the genetics theory and there has been no showing that a geneticist would have offered additional significant evidence. Therefore, even if the decision constituted deficient performance, Mobley has not demonstrated prejudice.
D. The mitigation defense.
The habeas court ruled that trial counsel presented an inadequate mitigation defense. Specifically, the habeas court found that, after being denied the funds for a geneticist, Mobley’s counsel nonetheless persisted with presenting an unconventional genetic theory for Mobley’s behavior, without the assistance of an expert witness. We disagree because this ruling fails to take into account the fact that the genetic defense was only one part of trial counsel’s overall mitigation strategy.
Mobley’s counsel’s strategy in the penalty phase centered around the following theme: Mobley has a personality disorder that has affected his behavior since he was a child, this behavior may be the
The appropriate test for determining whether trial counsel was constitutionally effective is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.’ ”
Although the habeas court focused on trial counsel’s genetic theory, it was only a part of the overall mitigation strategy. Further, a novel defense or mitigation theory is not unreasonable simply because it is unorthodox. We also do not believe that it was unreasonable for trial counsel to proceed with the introduction of the genetic theory without a geneticist, by using only the family historian. The simple argument that characteristics or traits, including violent behavior, may be passed from one family generation to another is not so technical that a layperson could not grasp it without the assistance of an expert. Therefore, we conclude that Mobley’s counsel adopted a mitigation strategy that was not unreasonable under the circumstances.
Since the evidence at the habeas hearing does not support Mobley’s burden, we reverse and reinstate the death sentence.
4. The habeas court correctly ruled that trial counsel had no conflict of interest during Mobley’s trial.
Judgment reversed in Case No. S98A0410 and affirmed in Case No. S98X0411.
Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995).
Mobley v. Georgia, _ U.S. _ (116 SC 377, 133 LE2d 301) (1995).
Mobley, 265 Ga. 292 (1).
Elrod v. Ault, 231 Ga. 750, 750 (204 SE2d 176) (1974); Gaither v. Gibby, 267 Ga. 96 (2) (475 SE2d 603) (1996) (issues raised and decided on direct appeal cannot be reasserted on habeas corpus).
264 Ga. 323, 325 (5) (443 SE2d 839) (1994).
248 Ga. 10, 18 (6) (282 SE2d 61) (1981).
Mobley, 265 Ga. at 294 (4).
See Childress v. State, 266 Ga. 425, 433 (3) (467 SE2d 865) (1996); Wellons v. State, 266 Ga. 77, 81-82 (2) (463 SE2d 868) (1995).
See Gibson v. Ricketts, 244 Ga. 482 (1) (260 SE2d 877) (1979).
Mobley, 265 Ga. at 294 (4).
Roulain v. Martin, 266 Ga. 353 (1) (466 SE2d 837) (1996).
Black v. Hardin, 255 Ga. 239, 240 (4) (336 SE2d 754) (1985); see also OCGA § 9-14-48 (d).
Turpin v. Todd, 268 Ga. 820, 825 (493 SE2d 900) (1997), quoting Murray v. Carrier, 477 U.S. 478, 488 (106 SC 2639, 91 LE2d 397) (1986).
Turpin, 268 Ga. at 828, quoting United States v. Frady, 456 U.S. 152, 170 (102 SC 1584, 71 LE2d 816) (1982).
See Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d 370) (1985) (“miscarriage of justice” approaches the situation where the State is imprisoning the wrong person due to mistaken identity).
White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991).
See id.
Strickland v. Washington, 466 U.S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782 (325 SE2d 362) (1985).
Strickland, 466 U.S. at 689-690; Smith, 253 Ga. at 783 (1).
Strickland, 466 U.S. at 690.
Smith, 253 Ga. at 783 (1).
Strickland, 466 U.S. at 698; Lajara a State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).
Linares v. State, 266 Ga. 812, 813 (2) (471 SE2d 208) (1996).
Andy Maddox was originally Summer’s co-counsel but he was replaced by Taylor after Mobley’s first trial ended in a mistrial. Summer and his co-counsel (either Maddox or Taylor) will be referred to as “Mobley’s counsel” or “trial counsel.” Summer will often be referred to individually since, as lead counsel, he played the larger role in Mobley’s defense.
Mobley was 25 years old when he killed John Collins. He had spent some of his adult years incarcerated due to several prior crimes.
Jefferson v. Zant, 263 Ga. 316, 319 (3) (b) (431 SE2d 110) (1993).
See Turpin v. Christenson, 269 Ga. 226, 239 (497 SE2d 216) (1998); Strickland, 466 U.S. at 691 (before selecting a strategy, a trial lawyer must reasonably investigate his options).
See Christenson, 269 Ga. at 239-240 (trial counsel failed to review defendant’s extensive psychological records already in their possession or contact any of the mental health professionals who had previously treated defendant even though these doctors were readily available); Curry v. Zant, 258 Ga. 527, 528 (371 SE2d 647) (1988) (trial counsel failed to follow up on defendant’s only psychological report which showed that defendant had organic brain damage and was “not hitting on all cylinders”).
See Zant v. Moon, 264 Ga. 93, 98 (2) (440 SE2d 657) (1994) (additional mitigating evidence about petitioner’s abusive childhood would not have resulted in a sentence less than death).
See Jefferson, 263 Ga. at 320 (3) (b) (trial counsel not deficient where he initially investigated possibility of mental deficiencies and had no reason to conclude that such evidence would be helpful in mitigation).
This ruling was affirmed on appeal. Mobley, 265 Ga. at 293 (2).
Before Mobley’s trial, this Court held on interim review that Mobley could introduce evidence of his conditional offer to plead guilty. Mobley v. State, 262 Ga. 808, 811 (4) (426 SE2d 150) (1993). This holding was overruled on direct appeal. Mobley, 265 Ga. at 299-300 (18) (b).
Jefferson, 263 Ga. at 318 (3) (a), quoting White v. Singletary, 972 F2d 1218, 1220 (11th Cir. 1992).
See id.; Rogers v. Zant, 13 F3d 384, 386 (11th Cir. 1994).
Devier v. Zant, 3 F3d 1445, 1450 (11th Cir. 1993).
Dissenting Opinion
dissenting.
I need not address the habeas court’s grounds for granting the writ and vacating Mobley’s death sentence in this case because I would hold that Mobley’s death sentence should be set aside and the case retried on the sentencing phase for the reasons set forth in my dissent in Mobley v. State, 265 Ga. 292, 301 (455 SE2d 61) (1995). Accordingly, I must dissent to the majority’s opinion.
Reference
- Full Case Name
- TURPIN v. MOBLEY; And Vice Versa
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- Published