Turpin v. Christenson
Turpin v. Christenson
Opinion of the Court
Scott Lynn Christenson was convicted of murder and armed robbery in 1990, and sentenced to death. This Court affirmed Christen-son’s convictions in Christenson v. State, 261 Ga. 80 (402 SE2d 41) (1991) (“Christenson F), but remanded to the trial court to determine if the State had a good faith basis for some of its cross-examination questions during the sentencing phase and to conduct a JacksonDenno hearing on the admissibility of a custodial statement introduced in the sentencing phase. The United States Supreme Court denied Christenson’s petition for certiorari. Christenson v. Georgia, 502 U. S. 855 (112 SC 166, 116 LE2d 130) (1991). In Christenson v. State, 262 Ga. 638 (423 SE2d 252) (1992) (“Christenson II), this Court affirmed Christenson’s death sentence. Christenson’s petition
In 1995 Christenson filed this habeas action, raising numerous claims, including ineffective assistance of counsel. The habeas court ruled that many of Christenson’s claims were not subject to habeas review because they had been addressed on direct appeal, and that many other claims had been procedurally defaulted. The habeas court, however, vacated Christenson’s death sentence because his trial counsel had been ineffective in the preparation for and the conduct of the sentencing phase. The State appeals the habeas court’s vacation of the sentence, Case No. S97A1435, and Christenson cross-appeals the habeas court’s affirmance of his conviction, Case No. S97X1438. We affirm.
The factual background for Christenson’s conviction and sentence is set out in Christenson I, supra at (1). Briefly summarized, the evidence adduced at trial showed that the victim, Albert L. Oliver III, was last seen driving his Toyota sports utility vehicle, with Chris-tenson in the passenger’s seat, on July 6, 1989. Christenson was arrested for stealing gas in Lonoke, Arkansas, on July 7, 1989. He was alone and driving Oliver’s vehicle. There were bloodstains in the vehicle and on some of Christenson’s clothes. After Oliver’s body was discovered near Columbus, Georgia, Christenson admitted to killing Oliver in four separate statements: a written statement, two audio-taped statements, and a videotaped statement which included Chris-tenson’s reenactment of the crime. According to his statements, Christenson hitched a ride with Oliver (with whom he was acquainted), tried to take his vehicle at gunpoint, struggled with Oliver for the weapon, and shot Oliver and dumped his body in a rural area.
Claims That Are Barred
1. Christenson raised numerous claims of alleged prosecutorial misconduct in his habeas petition regarding both the guilt/innocence and sentencing phases of his trial. He claimed the prosecutor made improper closing arguments, including comments regarding Chris-tenson’s lack of remorse, Christenson’s failure to testify, prejudicial matters outside the record, the prosecutor’s personal and religious beliefs, and the impact of the crime on the victim’s family. In addition, Christenson claimed prosecutorial misconduct because the State questioned mitigation witnesses about Christenson’s prior offenses without providing Christenson with pretrial notice of the intent to raise these offenses in the penalty phase.
The habeas court correctly ruled that these claims are barred. It is well settled that “[ajfter an appellate review the same issue[ ] will
2. Christenson alleges that the trial court erred by refusing to charge the jury on voluntary manslaughter. This claim was addressed on direct appeal and this Court held that the evidence did not support a charge on voluntary manslaughter. Christenson I, supra at (6). Therefore, this habeas claim is barred. Gunter, supra; Elrod, supra.
3. Christenson claims that the trial court erred by failing to exclude questions about Christenson’s prior offenses and to prevent improper comments by the State during closing argument. These habeas claims were also characterized by Christenson as prosecu-torial misconduct in Division 1 and are barred for the same reason: they were litigated on direct appeal. Id.
4. Christenson alleges the trial court erred by denying him funds to retain a psychiatrist. This claim was considered on direct appeal and this Court ruled adversely to Christenson. Christenson I, supra at (1) (c). Therefore, this habeas claim is barred. Gunter, supra; Elrod, supra.
5. This Court previously held that Christenson’s custodial statements were voluntary and admissible. Christenson I, supra at (3). The State also introduced a custodial statement made by Christen-son, after a prior arrest for car theft, as evidence in aggravation. This Court remanded for a Jackson-Denno hearing on the admissibility of this statement, Christenson I, supra at (9), and later held that the statement was admissible. Christenson II, supra at (2). Since the admissibility of these statements was already addressed on direct appeal, a habeas claim on these grounds is barred. Gunter, supra; Elrod, supra.
6. Christenson’s habeas complaints regarding the qualification of prospective jurors were addressed on direct appeal and, accordingly, are barred. Christenson I, supra at (4); id.
7. The failure of the trial court to conduct a Batson inquiry was addressed on direct appeal. Christenson I, supra at (5). Therefore, this claim is barred. Gunter, supra; Elrod, supra.
8. This Court has previously determined that Christenson’s
Claims That Are Procedurally Defaulted
9. Christenson complains in his habeas corpus petition about several alleged instances of prosecutorial misconduct which were not addressed on direct appeal. Specifically, Christenson claims that the prosecutor should have recused himself due to prior dealings with Christenson, that he improperly commented on several matters outside the evidence, and that he mischaracterized the evidence during cross-examination. Christenson could have raised these issues on direct appeal but he failed to do so. In Georgia, the failure to raise an error timely generally waives a habeas claim unless the petitioner 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.
Black v. Hardin, 255 Ga. 239 (4) (336 SE2d 754) (1985); see also OCGA § 9-14-48 (d). The only exception to the cause and prejudice test is the granting of habeas corpus relief to avoid a “miscarriage of justice,” which is an extremely high standard that is not met in this case. See Valenzuela v. Newsome, 253 Ga. 793 (4) (325 SE2d 370) (1985) (“miscarriage of justice” approaches the situation where the State is imprisoning the wrong person due to mistaken identity).
Christenson’s claims of prosecutorial misconduct are thus defaulted unless he can satisfy the cause and prejudice test. To show cause, Christenson must demonstrate that “some objective factor external to the defense impeded counsel's efforts to raise the claim that has been procedurally defaulted.” Turpin v. Todd, 268 Ga. 820, 825 (493 SE2d 900) (1997); McCleskey v. Zant, 499 U. S. 467, 493 (111 SC 1454, 113 LE2d 517) (1991). Objective factors which may constitute “cause” include interference by government officials that makes compliance with the procedural rules impossible or a showing that a factual or legal claim was not available to counsel. Turpin, supra. Ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), also constitutes “cause,” but attorney error that falls short of that standard does not. Id. To show prejudice, Christenson must demonstrate actual prejudice that
Christenson cannot show sufficient cause to excuse his procedural default. He presents no evidence that any external factors impeded his counsel’s ability to raise any of these claims, and the factual and legal basis of these claims was available to him on direct appeal. Christenson resorts only to alleged ineffectiveness of counsel to support a showing of cause. Although Christenson’s trial counsel was deficient in the preparation for and conduct of his trial,
10. Christenson also alleges numerous errors by the trial court that include: failing to grant a continuance at the start of the trial, refusing to grant funds to hire a defense investigator, improperly restricting voir dire, failing to require the State to comply with Brady v. Maryland, giving an erroneous jury charge, and failing to exclude prejudicial evidence, such as the reenactment videotape and photos of the victim’s body. None of these claims were raised on direct appeal and, for the same reasons enumerated in Division 9 of this opinion, Christenson does not show sufficient cause to overcome his procedural default.
11. Christenson asserts in his habeas appeal that the Georgia death penalty statutes, OCGA § 17-10-30 et seq., and the Unified
Ineffective Assistance of Counsel
12. Christenson alleges that his trial counsel provided him with ineffective assistance of counsel during the preparation for and conduct of his trial. This claim is neither barred nor defaulted. Georgia law provides that an ineffective assistance of counsel claim need not be raised until such time as trial counsel no longer represents the defendant. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991). The rationale behind this rule is that counsel cannot reasonably be expected to assert his or her own ineffectiveness. Id. Mr. Richard A. Bunn, one of Christenson’s trial attorneys,
A claim of ineffective assistance of counsel is grounded in the general right to counsel guaranteed to criminal defendants by the Sixth Amendment to the United States Constitution and Article I, Section I of the Georgia Constitution. Appellate courts apply a two-pronged test to determine if counsel’s performance was ineffective as to require reversal of a conviction or a death sentence:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a break*232 down in the adversary process that renders the result unreliable.
Strickland v. Washington, supra at 687. The Supreme Court of Georgia adopted the Strickland test in Smith v. Francis, 253 Ga. 782 (325 SE2d 362) (1985). For Christenson to show that his trial counsel’s performance was defective, he must demonstrate that his trial counsel’s performance was not reasonably effective in light of the circumstances confronting his counsel before and during the trial. Smith, supra at (1). Hindsight is not employed, and Christenson’s counsel is afforded a strong presumption that their conduct fell within a wide range of reasonable professional conduct and that their significant decisions were made in the exercise of reasonable professional judgment. Id. In order to show prejudice, Christenson must demonstrate that “there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. Christenson must show both defective representation and prejudice in order to prevail on this claim.
(A) The Guilt/innocence Phase
In July 1989, shortly after Christenson’s arrest, the trial court appointed Mr. Richard A. Bunn and Mr. William L. Kirby II to represent the defendant. Trial counsel made a determination that, based on the evidence, there would likely be a conviction and that the crucial phase of the trial would be the penalty phase. Although Mr. Bunn had no experience trying a murder case, let alone a death penalty case, they decided that Mr. Kirby would be primarily responsible for the guilt/innocence phase and Mr. Bunn would be primarily responsible for the penalty phase. The trial took place in March 1990.
Trial counsel had approximately eight months from appointment until trial, but they conducted little preparation and investigation of Christenson’s case until the eve of trial. In October 1989, trial counsel filed a number of motions relating to guilt/innocence issues, such as a motion to hire an investigator and a motion to suppress the defendant’s statements. The trial court denied Christenson’s motion for an investigator in February 1990 and it was only after this denial that Christenson’s counsel traveled to Arkansas to interview law enforcement witnesses to Christenson’s arrest and initial statements. This investigatory trip took place less than two weeks before trial and after the Jackson-Denno hearing on the admissibility of Christenson’s statements. Although trial counsel filed Christenson’s motion to suppress defendant’s statements in October 1989, they did nothing to obtain a hearing on this issue until February 1990. At that hearing, Christenson’s counsel filed a motion to continue the hearing because they had not “had an opportunity to get to Arkansas” and
Mr. Kirby tried the guilt/innocence portion of the trial. In his opening statement, Mr. Kirby told the jury that the defense would show that Mr. Oliver, the victim, had been a drug-dealing homosexual who had initiated the events which led to his death by attempting to trade sex for drugs. As the trial progressed, it became apparent that trial counsel had virtually no evidence to support this characterization of the victim. The only “evidence” to support the defense theory that Oliver was a homosexual was some condoms found in his sports utility vehicle, some friends who were teenage males, and the fact that he was unmarried, 31 years old and lived alone.
Pretermitting the question of defective representation in the guilt/innocence phase, we find the habeas court did not err by ruling that Christenson cannot meet the prejudice prong of Strickland. Although Christenson’s counsel’s preparation for and conduct of the guilt/innocence phase included errors and omissions, the evidence of Christenson’s guilt was overwhelming. The jury heard, read and saw Christenson admit to killing Oliver in several separate statements, all later held to be admissible by this Court. Christenson I, supra at (3). Christenson was the last person seen with Oliver, and Christen-son was arrested the following day driving Oliver’s truck in another state. There was blood in the truck and on Christenson’s clothes. Christenson cannot show that there was a reasonable probability that, but for trial counsel’s errors, he would not have been convicted. See Strickland, supra; Smith, supra. We therefore affirm the habeas
(B) The Penalty Phase
Defense counsel, as previously mentioned, recognized that the penalty phase would be the crucial phase of the trial, considering the amount of evidence pointing to Christenson’s guilt. Mr. Bunn, although he lacked any experience trying a death penalty case, was primarily responsible for assembling and presenting the mitigating evidence. Soon after appointment, trial counsel noticed that Chris-tenson seemed aloof and detached; often they had to rely on his family, especially his father, to get him to communicate with them. Trial counsel filed a motion for psychiatric evaluation because they believed that Christenson needed some “expert help” and because they believed that mental health issues might be relevant at trial. Although trial counsel recognized that mental health might be a mitigating factor in the sentencing phase, Mr. Kirby was primarily involved with investigating and developing the mental health evidence. Trial counsel believed that this evidence would be more relevant to guilt/innocence issues, such as competency to stand trial or a verdict of guilty but mentally ill.
At the hearing on the motion for psychiatric evaluation, trial counsel presented some of Christenson’s patient files from when he had been placed in the Bradley Center, a private psychiatric hospital, for in-patient treatment when he was fifteen years old (three years before the murder).
Christenson has an extensive history of psychiatric problems and substance abuse. The Bradley Center files contained a diagnosis
Pursuant to the trial court’s order, Christenson was evaluated by a state psychologist, Dr. Karen Bailey-Smith, who determined that Christenson was competent to stand trial and had been legally sane when he committed the crimes. In addition to her competency determination, Dr. Bailey-Smith diagnosed Christenson with a Personality Disorder Not Otherwise Specified and Psychoactive Substance Abuse Not Otherwise Specified. She further noted a dramatic twenty-point decline in Christenson’s IQ in the three years since his stay at the Bradley Center, from bright-normal to low-average intelligence, which she attributed to drug usage.
Despite the indications of Christenson’s impaired mental condition, trial counsel did no further investigation of his mental health. Trial counsel never obtained the complete Bradley Center files nor did they read the entirety of the file portions that they did have. No one contacted the Bradley Center clinical staff. They also did not contact Dr. Bailey-Smith about her opinion on mitigation issues or consider using her report.
At the habeas corpus hearing, Christenson presented the testimony of two mental health experts. A psychiatrist testified that Christenson had an anxiety disorder characterized by a “pervasive sense of nervousness or anxiety [even] in a normal, non-threatening environment.” He also stated that Christenson had an obsessive-compulsive disorder and an impulse-control disorder. According to the psychiatrist, Christenson was essentially non-confrontational (none of his prior offenses involved violence) and, due to his mental disorders, he would have been unable to make rational decisions during the struggle and shooting.
A licensed clinical social worker testified that Christenson’s family has a history of alcoholism and mental illness. All four of Chris-tenson’s grandparents were alcoholics and his mother and paternal grandmother, like Christenson himself, had been institutionalized in mental hospitals. Christenson’s mother suffered from depression; when Christenson was nine years old she had locked herself in a car and threatened to shoot herself.
In the penalty phase of the trial, the State introduced one witness in aggravation. The witness was Detective Cox of the Columbus Police Department. He testified that while he was transporting Christenson back to Columbus from Jackson, Tennessee, where Christenson had been arrested after stealing a truck in Georgia,
Trial counsel presented 19 witnesses and 27 exhibits as mitigation evidence in the penalty phase. The witnesses included Christen-son’s parents, grandfather, aunts, uncles, cousins and Little League baseball coaches. Trial counsel testified that their strategy was to “humanize” their client and prepared these witnesses by asking them to relate stories about “how Scott’s childhood was a happy and normal childhood.” The witnesses testified, most very briefly, that Chris-tenson had been a good child until his beloved grandmother died when Christenson was 14 years old. Then, Christenson became withdrawn, his grades dropped and he began to get into trouble due to drugs. The mitigation exhibits were mainly baseball trophies and family photographs. A key defense exhibit directly contradicted the family witnesses: Christenson’s school records clearly showed that Christenson’s grades began to plunge two years before the death of his grandmother.
The mitigation witnesses were poorly prepared for their testimony. Billing records and trial counsel’s habeas testimony indicate that trial counsel did not begin contacting most mitigation witnesses until the week before trial. Some mitigation witnesses were not contacted about their expected testimony until they were telephoned by trial counsel the night before they were to testify. As a result, the mitigation witnesses were not adequately prepared for the DA’s cross-examination. The DA, in a series of questions testing the witness’ knowledge of the defendant’s reputation and character, asked the witnesses repeatedly about almost two dozen specific property offenses that Christenson had committed, most from when he was a juvenile. The witnesses were forced to admit they had heard that Christenson had been in some trouble but they did not know about his extensive juvenile and criminal record.
The DA repeatedly hammered home this theme in his closing argument: Christenson, despite being blessed with caring parents and every advantage, had wasted his opportunities and become a career criminal and a drug addict. The prosecutor also argued that the last of Christenson’s five shots into Oliver had been the fatal shot,
Mr. Bunn argued for the defense. He started by telling the jury that he had to renege on a promise made to the jury during Mr. Kirby’s opening statement, that the defense would be able to explain why “two sad and aggrieved families” had been brought into the courtroom for this trial. He then proceeded to tell the jury, on three separate occasions, that he had no explanation for Christenson’s actions:
We don’t know what went wrong with Scott. We don’t know what happened to Scott along the way. . . .
*239 We don’t know what happened to Scott after the age of 14.
When I look at Scott Christenson, I wonder just like everyone else what happened. I don’t know what happened. . . .
I can’t tell you how a boy with his potential ended up in this courtroom convicted of murder and armed robbery. When I look at his life, I can’t explain it.
Mr. Bunn stated that Christenson had “no excuses” for what he had done. He told the jury “I’m not telling you that Scott deserves mercy” and asked for mercy only for Christenson’s family. The jury returned a recommendation of death.
Although trial counsel is afforded tremendous deference over matters of trial strategy, the decision to select a trial strategy must be reasonably supported and within the wide range of professionally competent assistance. See Devier v. Zant, 3 F3d 1445, 1453 (11th Cir. 1993); Strickland, supra at 690. Trial counsel testified that they chose to “humanize” their client because Christenson’s drug usage and “narcissistic” personality would not go over well in Harris County. However, before selecting a strategy, counsel must conduct a reasonable investigation into the defendant’s background for mitigation evidence to use at sentencing. See Jefferson v. Zant, 263 Ga. 316, 319-320 (431 SE2d 110) (1993); Baxter v. Thomas, 45 F3d 1501, 1513 (11th Cir. 1995); Bush v. Singletary, 988 F2d 1082, 1091 (11th Cir. 1993) (“After an adequate investigation, counsel may reasonably decide not to present mitigating character evidence at sentencing”). An attorney is not ineffective because he fails to follow every eviden-tiary lead, but an attorney’s strategic decision is not reasonable “ ‘when the attorney has failed to investigate his options and make a reasonable choice between them.’ ” Baxter, supra, quoting Horton v. Zant, 941 F2d 1449, 1462 (11th Cir. 1991). The failure to conduct a reasonable investigation may render counsel’s assistance ineffective. Baxter, supra at 1514; Curry v. Zant, 258 Ga. 527, 530 (371 SE2d 647) (1988) (counsel ineffective for failing to further investigate client’s mental health despite indications that client was mentally ill).
Christenson’s counsel possessed a wealth of information regarding Christenson’s psychiatric problems and drug abuse, which they essentially ignored. This is not a situation where trial counsel was unaware of their client’s psychiatric problems before trial. See Williams v. State, 258 Ga. 281 (7) (368 SE2d 742) (1988). From the beginning, Christenson’s counsel had difficulty communicating with their client because he was aloof and detached. They knew their client had been institutionalized in a mental health facility when he was 15 years old, but they never fully reviewed the Bradley Center
The decision not to investigate further into Christenson’s mental health and background was also not strategic. See Baxter, supra (there are many situations where an attorney may make a strategic decision not to pursue a line of investigation). Trial counsel ceased any investigation of Christenson’s mental health after the trial court denied their second request for a psychiatric examination. It is apparent from the record that this failure to proceed may have stemmed in part from the division of labor. When Mr. Kirby, who was responsible for the guilt/innocence phase and the investigation of Christenson’s mental health, was unable to develop Christenson’s incompetency or insanity, he stopped his psychological investigation. Mr. Bunn, who was responsible for the penalty phase and mitigation evidence, failed to pick up where Mr. Kirby left off. Both of Christen-son’s lawyers admitted at the habeas corpus hearing that they were unaware of the extent of Christenson’s mental problems, of specific episodes from his childhood, of his estrangement from his parents, and of his family’s history of mental illness and substance abuse, although this information was in their possession or readily available. Mr. Bunn further conceded that, had he known of some of this information, he may have put it in front of the jury. Trial counsel was deficient in their investigation of available mitigation evidence. Baxter, supra; Curry, supra.
In addition, trial counsel’s mitigation defense, to “humanize” their client, was inadequately presented and appears to have been cobbled together at the last minute. Trial counsel did not contact
Trial counsel committed a number of serious errors that hurt their case for a sentence less than death. First, trial counsel’s argument in the guilt/innocence phase that the victim was a drug-dealing homosexual, without any evidence to support this assertion, could only have prejudiced the jury against their client. See Young v. Zant, 677 F2d 792, 798 (11th Cir. 1982) (competent counsel would not have gone to trial on an insanity defense without any evidence to support it). Second, Christenson’s counsel did not attempt to impeach Detective Cox, the sole witness in aggravation, about his sudden remembrance, after a year had passed, of Christenson’s comment to him after an arrest, even though trial counsel had Cox’s original report and the report did not indicate any remarks by Christenson. Chris-tenson’s alleged comment that he had planned to kill a truck owner during a theft came in unchallenged. Third, defense counsel failed to object to the State’s characterization of the order of the shots that killed the victim, even though these comments were unsupported by the trial evidence. The State was thus permitted to argue, without objection, that Christenson had inflicted four non-lethal wounds before deciding to fire the fatal shot. Lastly, in the closing argument, trial counsel specifically declined to ask for mercy for their client and implied that their client did not deserve mercy.
The habeas court determined that trial counsel was deficient in the preparation for and conduct of the sentencing phase due to inadequate investigation of possible mitigation evidence and inadequate presentation of the mitigation case. Baxter, supra; Curry, supra. It further determined that Christenson was actually prejudiced by his trial counsel’s errors. Id. The psychiatric evidence, if properly investigated and presented, could have totally changed the evidentiary pic
The evidence supports the habeas court’s conclusion that, but for trial counsel’s deficient representation, there exists a reasonable probability that the jury would have recommended life imprisonment. See Strickland, supra at 695; Smith, supra. That conclusion will not be disturbed on appeal. Williams v. Caldwell, 229 Ga. 453 (1) (192 SE2d 378) (1972). Therefore, we affirm the habeas court’s vacation of the death sentence due to ineffective assistance of counsel.
Judgments affirmed.
The ineffective assistance of Christenson’s trial counsel is addressed in Division 12.
Christenson’s trial counsel was supplemented on direct appeal by attorneys James A. Messner, Frederick Robinson, Stephen M. McNabb, Michael G. McGovern, Stephen B. Bright, Charlotta Norby and the law firm of Fulbright & Jaworski.
The failure of Christenson’s trial counsel to object to the alleged prosecutorial misconduct or trial court errors may constitute support for his separate claim of ineffective assistance of counsel, which is not procedurally defaulted and is addressed in Division 12.
Christenson’s other trial attorney was Mr. William L. Kirby II, who apparently ceased representing Christenson after the trial. References to “trial counsel,” “Christenson’s counsel,” or “defense counsel” include both Mr. Bunn and Mr. Kirby.
In fact, the jury heard evidence to contradict this theory because one of the people who found Oliver’s body was described as Oliver’s former girl friend. Also, Christenson’s statements introduced at trial did not mention sex or drugs — Christenson had consistently stated that he hitched a ride with Oliver so he could take his vehicle.
Christenson also claims that trial counsel was ineffective in failing to develop evidence to support a claim of voluntary manslaughter. This contention is without merit. The trial evidence and the available information showed that Christenson initiated an armed robbery by pointing a gun at the victim, without provocation, and then killed the victim when he resisted. A voluntary manslaughter charge is not warranted under these circumstances. See Christenson I, supra at (6); Horton v. State, 249 Ga. 871 (1) (295 SE2d 281) (1982); Fields v. State, 211 Ga. 335 (5) (85 SE2d 753) (1955).
Trial counsel testified at the habeas hearing that they were unsure where they obtained these files or who gave them the files.
Trial counsel admitted that they did not even look up Dr. Bailey-Smith’s diagnosis in the DSM-III.
Mr. Kirby testified that his primary purpose in requesting a psychiatric evaluation was not to determine Christenson’s mental health, but as a “ploy” to “confuse the issues” and to ensure that Christenson was examined by a state psychiatrist in the Milledgeville facility. Mr. Kirby stated that these psychiatrists made poor witnesses for the State because they tended to have foreign accents and did not treat their patients very well.
According to affidavits and the psychiatrist’s testimony, Christenson’s mother was extremely overbearing and critical of her children. Most telling is her response to her son’s arrest for the murder. She admitted that she “wanted Scott to be executed as soon as possible.”
Christenson was 18 years old when he was arrested for Oliver’s murder. As a result,
Oliver had been shot five times — four wounds were minor wounds to his extremities and the fifth, fatal wound was to his back.
Concurring in Part
concurring in part and dissenting in part.
I concur in Case No. S97X1438, wherein the majority affirms the denial of habeas relief as to Christenson’s convictions for murder and armed robbery. However, I believe that the habeas court erred in vacating Christenson’s death sentence for the murder. Therefore, I dissent to the majority’s affirmance of the judgment in Case No. S97A1435.
I respectfully submit that both the habeas court’s order and the majority’s opinion support only the hypothetical proposition that Christenson’s trial counsel could have presented a more effective defense to the imposition of the death penalty. However, the issue to be determined is whether the defense which actually was presented was ineffective. In the seminal case on ineffective assistance of trial counsel, the Supreme Court of the United States cautioned that “it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland v. Washington, 466 U. S. 668, 689 (III) (A) (104 SC 2052, 80 LE2d 674) (1984). Christenson’s defense is not rendered constitutionally ineffective simply because
No presumption of ineffectiveness attaches because the jury imposed the death sentence for the murder which Christenson committed. Indeed, there is a strong presumption that Christenson received effective representation. Strickland v. Washington, supra at 689 (III) (A); Lowe v. State, 267 Ga. 410, 415 (5) (d) (478 SE2d 762) (1996). Christenson’s trial counsel is entitled to a presumption of effectiveness, and deference must be given to the tactics he determined to employ. Strickland v. Washington, supra at 689 (III) (A); Lakes v. State, 266 Ga. 389 (2) (467 SE2d 566) (1996). Christenson has no constitutional right to counsel who would insure the return of a life sentence. He has only the right to “ ‘ “counsel reasonably likely to render and rendering reasonably effective assistance.” (Cit.)’ [Cit.]” McGill v. State, 263 Ga. 81, 82 (2) (428 SE2d 341) (1993). The appropriate test for determining whether Christenson was afforded his constitutional right to reasonably effective counsel
has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial ... we are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately. [Cit.]
Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993). The purpose of the effective assistance of counsel guarantee of the Sixth Amendment “is simply to ensure that criminal defendants receive a fair trial.” Strickland v. Washington, supra at 689 (III) (A).
With the benefit of hindsight, the habeas court and the majority have engaged in what I perceive to be a second-guessing of the trial tactics of Christenson’s trial counsel by making judgments as to what should have been done additionally or differently. However, hindsight is wholly irrelevant in judging the effectiveness of trial counsel. Strickland v. Washington, supra at 689 (III) (A); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). Employment of hindsight
usually proves at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, post-conviction counsel will inevitably identify shortcomings in the performance of prior counsel. . . . “[I]n retrospect, one may*244 always identify shortcomings,” [cit.] but perfection is not the standard of effective assistance.
Waters v. Thomas, 46 F3d 1506, 1514 (II) (A) (3) (11th Cir. 1995). “The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. [Cits.]” Berry v. State, 267 Ga. 476, 479 (4) (480 SE2d 32) (1997).
The primary conclusion is that Christenson’s trial counsel was constitutionally ineffective for failing to pursue the mental health issue as a possible additional mitigating factor. However, it is clear that trial counsel made the strategic decision that pursuing the mental health issue would be less effective with the local jurors than an attempt at “humanizing” Christenson. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, supra at 691 (III) (A). It is not constitutionally ineffective to fail to pursue an issue which, in the estimation of otherwise reasonable trial counsel, would not be an effective trial strategy.
Sometimes, a lawyer can make a reasonable decision that no matter what an investigation might produce, he wants to steer clear of a certain course. In this case, counsel were longtime local lawyers who knew their community.
Rogers v. Zant, 13 F3d 384, 387 (11th Cir. 1994). Certainly, Christenson’s trial attorneys were in a better position than either the habeas court or this Court to determine whether the local jurors would be more inclined to accept a strictly “humanizing” mitigation strategy than one which was also based upon expert testimony as to Christenson’s voluntary drug use and his “narcissistic” personality. In some communities, voluntary drug use and psychological problems might not be considered as circumstances in mitigation of a murder wherein the victim was shot five times, the body was concealed and the perpetrator then fled the state in the victim’s stolen truck. Since trial counsel believed that the local jury would not readily accept a defense based in whole or part upon Christenson’s voluntary drug use and his psychological problems, it could be argued that it would have been an act of ineffective legal representation had counsel nevertheless asserted that defense.
[Slacking different defenses can undercut with the jury the defense team’s credibility, which is essential to a likelihood of success. [Cits.] . . . [G]ood advocacy requires the winnowing out of some arguments in favor of stressing others: multiplicity of arguments or defenses hints at the lack of confidence in any one. [Cit.]
Rogers v. Zant, supra at 388. Accordingly, Christenson’s death sentence is being reversed for the anomalous reason that his trial counsel failed to pursue a trial tactic which, had they elected to follow it, could be urged in post-conviction proceedings as an example of their ineffectiveness.
The habeas court and the majority purport to find other instances of ineffectiveness on the part of Christenson’s trial counsel. I submit that all of these instances evidence the unauthorized second-guessing of trial counsel’s tactical decisions and the application of an erroneous presumption that those tactical decisions were ineffective merely because they were unsuccessful. The fundamental error in the habeas court’s order which the majority perpetuates is in this failure “to eliminate the distorting effects of hindsight. . . .” Strickland v. Washington, supra at 689 (III) (A). The law of this state authorizes the imposition of the death penalty for the crime of murder and there are some murder cases in which that penalty is authorized “[e]ven if many reasonable lawyers would not have done as defense counsel did at trial. . . .” Rogers v. Zant, supra at 386. In my opinion, this is one of those cases. Therefore, I respectfully dissent.
I am authorized to state that Justice Hunstein joins in this opinion.
Reference
- Full Case Name
- TURPIN v. CHRISTENSON; And Vice Versa
- Cited By
- 37 cases
- Status
- Published