Davis v. Turpin

• Decision Date: 13 November 2000
• Docket Number: No. S00A0993.,S00A0993.
• Parties: DAVIS v. TURPIN.
• Court: Georgia Supreme Court

539 S.E.2d 129

273 Ga. 244

DAVIS v. TURPIN.

No. S00A0993.

Supreme Court of Georgia.

November 13, 2000.

Reconsideration Denied December 15, 2000.

Thomas H. Dunn, Michael Mears, Priya N. Lakhi, Charlotta Norby, Atlanta, for appellant.

Joseph L. Chambers, Sr., Wesley S. Horney, Thurbert E. Baker, Attorney General, Susan V. Boleyn Senior Assistant Attorney General, Allison B. Vrolijk, Assistant Attorney General, for appellee. Mark E. Olive, Tallahassee, for amicus curiae.

HUNSTEIN, Justice.

Troy Anthony Davis was tried, convicted and sentenced to death in August 1991 for the killing of a law enforcement officer and other crimes. He appealed in 1992; this Court affirmed his conviction and sentence in Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). Davis filed a petition for a writ of habeas corpus in the Superior Court of Butts County in March 1994. The habeas court conducted an evidentiary hearing in December 1996 and denied Davis's amended petition in an order filed on September 9, 1997. This Court granted Davis's application for a certificate of probable cause to appeal on February 24, 2000, and ordered the parties to address four issues. We affirm.

1. Davis argued in his habeas petition that execution by electrocution is cruel and unusual punishment. Although he raised other arguments on direct appeal in support of his contention that Georgia's death penalty laws constitute cruel and unusual punishment, the argument that the use of electrocution renders those laws unconstitutional was raised for the first time in his habeas petition. We agree with the habeas court that this issue was procedurally barred by not being raised and litigated at the first available opportunity. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985). The procedural bar to claims that are raised for the first time in a habeas proceeding exists to prevent litigants from reserving meritorious issues on direct appeal in an effort to interpose needless delay to the complete resolution of their cases. Id., 255 Ga. at 239-240(3), and (4). Accordingly, Georgia law directs habeas courts to "consider whether [a petitioner has] ... complied with Georgia procedural rules at trial and on appeal" and further provides that "absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted." OCGA § 9-14-48(d), see Turpin v. Mobley, 269 Ga. 635, 637(2), 502 S.E.2d 458 (1998). We agree with the habeas court that Davis has not made the required showing of cause necessary to overcome the procedural bar to defaulted claims.

2. This Court reviewed Davis's death sentence on direct appeal and found that it was "neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant." Davis, supra, 263 Ga. at 10(18), 426 S.E.2d 844. We decline Davis's invitation to re-examine the proportionality of his sentence. Contrary to Davis's argument, the method by which this Court conducts its proportionality review satisfies Georgia statutory requirements and is not unconstitutional. Gissendaner v. State, 272 Ga. 704(16), 532 S.E.2d 677 (2000).

Davis also contends that this Court should reevaluate his death sentence in light of the fact that some of the death sentences to which his sentence was compared by this Court on direct appeal have ultimately resulted in reversal and re-sentencing to life imprisonment. We have said the following about our proportionality review of death sentences:

It is the reaction of the sentencer to the evidence before it which concerns this court and which defines the limits which sentencers in past cases have tolerated, whether before or after [Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)]. When a reaction is substantially out of line with reactions of prior sentencers, then this court must set aside the death penalty as excessive.

Ross v. State, 233 Ga. 361, 366-367(2), 211 S.E.2d 356 (1974). Because it is a jury's reaction to the evidence before it that concerns this Court in its proportionality review, it is irrelevant if the sentences in the cases used for comparison were already at the time, or later are, reversed for reasons unrelated to the juries' reactions to the evidence.

Finally, Davis contends that other defendants have received sentences less than death for crimes of similar gravity. In light of the severely aggravated nature of Davis's crime, we find no merit in his contention that the death penalty would be unlawfully disproportionate in his case, even if a new proportionality analysis were undertaken. See Gissendaner v. State, supra, 272 Ga. at 716(19)(a), 532 S.E.2d 677.

3. After Davis was convicted and sentenced to death, the trial court appointed additional counsel to represent Davis during the motion for a new trial and direct appeal regarding any claims of ineffective assistance of trial counsel. Davis's original trial counsel remained responsible for all other issues during that time. Davis argues that his new counsel and his trial counsel operated under a conflict of interest and that habeas corpus relief is required, even absent a showing of actual prejudice.

(a) Whether a conflict of interest served to deny Davis his right to effective counsel during his motion for new trial and direct appeal is a mixed question of law and fact, and we review the questions of law involved de novo. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Turpin v. Lipham, 270 Ga. 208(3), 510 S.E.2d 32 (1998).

A conflict of interest would warrant reversal if it rendered counsel's assistance ineffective under constitutional standards. See Cuyler, supra, 446 U.S. at 335(IV), 100 S.Ct. 1708; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As with any claim of ineffective assistance of counsel, there must be a showing of constitutionally deficient performance by counsel and of resulting prejudice. However, Cuyler recognized that sufficient prejudice may be presumed in a post-conviction proceeding in certain limited circumstances, namely, where the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. Id., 446 U.S. at 348(IV), (B, C), 100 S.Ct. 1708. While this more lenient standard of proof has traditionally been applied to cases where one attorney represented more than one defendant, Davis argues that this standard should also apply to his case where the alleged conflict of interest arose between Davis and his counsel. See United States v. Moree, 220 F.3d 65, 69 (2nd Cir.2000); Riggs v.. United States, 209 F.3d 828(II)(B) (6th Cir.2000); but see Beets v. Scott, 65 F.3d 1258(II) (5th Cir.1995).

We need not directly decide this disputed question at this time, however, because we find that Davis's claims fail even assuming, as we do below, the applicability of the more lenient Cuyler standard. Generally, "the possibility of a conflict [of interest] is insufficient to impugn a criminal conviction." Cuyler, supra, 446 U.S. at 350(IV)(C), 100 S.Ct. 1708. While certain circumstances might so strongly suggest the likelihood of an actual conflict of interest that a trial court would be expected to conduct an inquiry sua sponte, we do not find that such circumstances existed in Davis's case. See id., 446 U.S. at 347,100 S.Ct. 1708 ("[u]nless the trial court knows or reasonably should know that a particular conflict exists, the trial court need not initiate an inquiry"); Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (finding that "the possibility of a conflict of interest was sufficiently apparent at the time ... to impose upon the court a duty to inquire further"); Dawan v. Lockhart, 31 F.3d 718(II) (8th Cir.1994); United States v. Levy, 25 F.3d 146(I)(A)(3) (2nd Cir.1994); Wilson v. Morris, 724 F.2d 591(II), (III) (7th Cir.1984) ("[t]he record in this case is devoid of special circumstances requiring a judicial inquiry," id. at 595(III)). Furthermore, Davis raised no objections before the trial court suggesting his attorneys' loyalties were potentially divided, which, had they been raised, might arguably affect his present burden to show an actual conflict of interest. Compare Wilson, supra, 724 F.2d at 593 ("[a] constitutional violation occurs, and proof of an actual conflict is not required, when a defendant's attorney objects to joint representation and the trial court overrules the objection without exploring the basis of the objection or the adequacy of the representation in the face of a potential conflict of interest"); see Cabello v. United States, 188 F.3d 871, 875(II) (7th Cir.1999) ("[t]he extent to which the defendant must demonstrate prejudice depends on whether and to what extent the conflict was brought to the attention of the trial judge"). Thus, Davis bears the burden to show that an actual conflict of interest adversely affected his attorneys' performance. See Smith v. Anderson, 689 F.2d 59, 65(III) (6th Cir.1982) ("[w]hen the defendant, individually or through his legal representative, fails to raise his concern for a conflict in a timely fashion, an `actual conflict of interest adversely affect(ing) his lawyer's performance' must be established").

(b) We first address Davis's contention that the new attorney appointed to raise claims of ineffective assistance during his motion for a new trial and direct appeal operated under a conflict of interest. The habeas court found that Davis's new counsel "zealously and competently represented Davis's interests in challenging the effectiveness of the primary defense team's assistance at trial" and that there was "no support" for the allegation that Davis's new counsel failed in his professional duties as a result of the friendly acquaintance he had with Davis's trial counsel. This mixed finding of law and...