Turpin v. Todd
| Decision Date | 05 December 1997 |
| Docket Number | Nos. S97A1354,S97X1396,s. S97A1354 |
| Citation | 493 S.E.2d 900,268 Ga. 820 |
| Parties | , 97 FCDR 4399, 98 FCDR 152 TURPIN, Warden v. TODD. TODD v. TURPIN, Warden. |
| Court | Georgia Supreme Court |
Susan V. Boleyn, Senior Asst. Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Department of Law, Atlanta, for Tony Turpin in Nos. S97A1354 and S97X1396.
Stephen Christopher Bayliss, Georgia Resource Center, Atlanta, for William Lamar Todd in Nos. S97A1354 and S97X1396.
Michael Mears, MultiCounty Public Defender, Atlanta, for other interested parties in No. S97A1354.
The appellant, William Lamar Todd, was convicted of murder and armed robbery in 1989, and sentenced to death. This Court affirmed on direct appeal, 1 and the U.S. Supreme Court denied Todd's petition for certiorari. 2 In 1995, Todd filed this habeas action, raising numerous contentions, including ineffectiveness of counsel. The habeas court ruled, among other things, that many of the claims had been decided adversely to Todd on appeal, and were not subject to review on habeas, and that many other claims had been procedurally defaulted. The habeas court, however, reversed Todd's death sentence for two reasons. First, the court found that some of the jurors had had improper contact with the attending bailiff during the sentencing phase of the trial by asking the bailiff about the meaning of a life sentence and the possibility of parole. The court ruled that the State had the burden to prove this error harmless, concluded that the State had not done so, and reversed Todd's death sentence. Second, the habeas court found that Todd was entitled to have an ex parte hearing before the trial court on his request for funds for independent psychiatric assistance. In this regard, the habeas court concluded that Brooks v. State 3 which was decided approximately six months after Todd's conviction, established the right to have such an ex parte hearing and should be applied retroactively to Todd's case. The habeas court also found that the failure to have an ex parte hearing harmed Todd because evidence of Todd's mental condition could have had a substantial impact at the sentencing phase of Todd's trial. The habeas court thus reversed Todd's death sentence. The State has filed a direct appeal of the habeas court's grant of relief, S97A1354, and Todd has filed a cross-appeal from the denial of relief as to guilt-innocence issues and as to the habeas court's adverse rulings on issues relating to the sentencing phase, S97X1396.
1. At the outset, we address the dissent's incorrect assertion that the general rule against impeaching verdicts precludes the habeas court or this Court from reviewing the jurors' affidavits that Todd submitted in support of his claim of juror-bailiff misconduct and from assessing the fairness of Todd's sentence of death in light of those affidavits.
a. In making its argument, the dissent errs in several respects. First, the State does not contend on appeal that Todd's claim must fail because of the general rule against impeaching verdicts. Instead, the State contends that the habeas court erred when it concluded that Todd was not procedurally barred from raising the bailiff-juror misconduct issue. More specifically, the State contends that Todd's failure to raise the issues on direct appeal erected a procedural bar to raising the issue on habeas corpus, and that Todd failed to demonstrate the necessary cause and prejudice to overcome that procedural bar. Thus, the dissent would have this Court reach and decide a significant issue regarding Todd's right to a fair sentencing trial without benefit of briefs by the parties or a review of the issue by the habeas court.
Second, the jurors' affidavits and the habeas court's order indicate that improper communications between the bailiff and the jury on the subject of Todd's parole eligibility may have occurred. If that is, in fact, the case, our laws provide that the general prohibition against allowing a jury to impeach its verdict cannot be applied to emasculate a defendant's constitutional right to a fair trial, particularly when his life hangs in the balance.
b. We turn now to examine the jurors' affidavits and the habeas court's findings of fact regarding them.
Juror McKenzie stated in one of his affidavits that Juror Leverett stated the following in one of her affidavits:
When we were considering what penalty to give Mr. Todd, one thing that concerned me and other jurors was just what a life sentence meant. Because we didn't know what it meant, we asked one of the jury bailiffs how long a life sentence would be. I remember that the answer we got back was that a life sentence really meant about seven years. We immediately voted for the death penalty.
Further, Juror Linda Kosobucki gave an affidavit similar in content to the two described above.
In its findings of fact, the habeas court concluded that:
there was undeniably a question proposed by the jurors to the Bailiff concerning a life sentence and the possibility of parole, and this question was not reported by the Bailiff to the Presiding Judge. The evidence is inconclusive as to any response by the Bailiff himself.
The last sentence seemingly indicates that the habeas court could not determine whether the bailiff conveyed information to the jury regarding Todd's parole eligibility. In that event, it is possible that the bailiff's only misconduct would be in failing to deliver the jury's note to the trial court. The habeas court also stated, however, that "[w]here a communication from the bailiff to the jury is shown, the burden is on the State to rebut by proof the presumption of harm," and that "there has been improper communication between the jury and the attending bailiff, and the State has not proven that the communication is harmless." Because the only possible improper communication developed by the evidence in this case is that of the bailiff informing the jury about Todd's parole eligibility, the foregoing statements by the habeas court can only reasonably be interpreted as a finding that the bailiff made such a communication. Such a finding, which is not addressed by the dissent, is unquestionably authorized by the jurors' affidavits.
c. This Court has held that the general rule against impeaching verdicts must succumb to the defendant's right to a fair trial. 4 In this case, if, as is indicated by the habeas court's findings, the bailiff did inform the jury that Todd would be eligible for parole in seven years if the jury sentenced him to life in prison, then fair trial concerns are implicated.
In Simmons v. South Carolina, 5 the United States Supreme Court ruled that it was unconstitutional for the defendant to receive the death penalty 6 In addition, in Watkins, this Court held that the rule prohibiting jurors from impeaching their verdict could not be applied because it would emasculate the defendant's right to a fair trial. 7 In that case, two jurors visited the crime scene and presented their findings to the other jurors. We condemned the introduction of this extra-judicial evidence, ruling that it violated the defendant's right to a fair trial. 8 In doing so, this Court relied on a United States Supreme Court decision holding that improper statements by a bailiff to a jury violated the defendant's right to a fair trial. 9 Finally, this Court has routinely held that due process concerns are raised when communications from a bailiff to a jury are made outside the presence of the defendant and his counsel. 10
In the present case, the jurors' affidavits and the habeas court's findings raise the specter that the bailiff offered extra-judicial evidence to the jury on the question of Todd's eligibility for parole, and that this extra-judicial evidence was offered outside the presence of Todd and his counsel. Accordingly, the bailiff's conduct implicates Todd's right to a fair trial under the foregoing authorities. Because of the conflict in the habeas court's findings of fact, and because this issue has not been addressed by the parties on appeal, we conclude that it is premature for this Court to rule on the impeachment issue at the present time. However, because we conclude in Division 4 of this opinion that the issue of whether Todd is procedurally defaulted from raising the issue of juror-bailiff misconduct must be remanded to the habeas court, we also conclude that the issue whether the jurors' affidavits may be used to impeach the sentencing verdict should be considered by the habeas court on remand, and that the habeas court should undertake to clarify its findings of fact regarding whether the bailiff communicated to the jury regarding Todd's eligibility for parole. 11
2. We turn now to the issues specifically raised by the parties. The State contends that the habeas court erred in concluding that Todd was not procedurally barred from raising the bailiff-juror misconduct issue. More specifically, the State contends that Todd's failure to raise the issues on direct appeal erected a procedural bar to raising the issue on habeas corpus, and that Todd failed to demonstrate the necessary cause and prejudice to overcome that procedural bar. Although we agree that Todd's failure to raise the issue on appeal erected a procedural bar, we conclude that Todd has demonstrated cause for failing to raise the issue on appeal. As for prejudice, we conclude that the habeas court's findings of fact are unclear in one critical respect and that the habeas court applied the incorrect standard in determining prejudice. For both of these reasons we...
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