Ferrell v. Hall

• Decision Date: 13 May 2011
• Docket Number: No. 06–11954.,06–11954.
• Citation: 640 F.3d 1199,22 Fla. L. Weekly Fed. C 2045
• Parties: Eric Lynn FERRELL, Petitioner–Appellant,v.Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

640 F.3d 1199

22 Fla. L. Weekly Fed. C 2045

Eric Lynn FERRELL, Petitioner–Appellant,

v.Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent–Appellee.

No. 06–11954.

United States Court of Appeals, Eleventh Circuit.

May 13, 2011.

Gretchen Mary Stork (Court–Appointed), Fed. Def. Program, Inc., Atlanta, GA, Mark Evan Olive (Court–Appointed), Law Offices of Mark E. Olive, P.A., Tallahassee, FL, for Ferrell.Patricia Beth Attaway Burton, State of GA Law Dept., Atlanta, GA, for Hall.Appeal from the United States District Court for the Northern District of Georgia.Before TJOFLAT, MARCUS and BLACK, Circuit Judges.MARCUS, Circuit Judge:

Petitioner Eric Lynn Ferrell (“Ferrell”) was sentenced by a state trial court in Georgia to die following his convictions on two counts of malice murder for the fatal shootings of his grandmother and fifteen-year-old cousin. The Georgia Supreme Court, on direct appeal and during collateral habeas proceedings, rejected all of Ferrell's attacks on his convictions and sentence. Thereafter, a federal district court denied Ferrell's petition for writ of habeas corpus, including his claims that trial and appellate counsel were ineffective in failing to conduct a reasonable investigation for mitigating evidence; that trial counsel's penalty-phase closing argument also was ineffective; that his right to conflict-free trial counsel was wrongfully denied; and, finally that Ferrell was constructively absent from the penalty phase of his trial.

After thorough review of this ample record, we are compelled to reverse in part the judgment of the district court. We hold that the state court's rejection of Ferrell's ineffective-assistance claims was an unreasonable application of Strickland v. Washington, and, accordingly, we reverse the district court's denial of habeas relief from Ferrell's death sentence. Neither the jury nor the sentencing judge was ever told, because defense counsel never discovered that Ferrell suffers from extensive, disabling mental health problems and diseases including organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Nor did they learn that the defendant had attempted suicide at age eleven, or that because of these mental health issues, Ferrell exhibits increased impulsivity and decreased sound judgment; that his conduct was not entirely volitional; or that his judgment and mental flexibility were significantly impaired by organic brain damage. Nor, finally were they ever told that Ferrell's father was physically abusive to his children, especially to Ferrell, waking them in the middle of the night to beat them (sometimes after stripping them naked) with razor strops, fan belts, and old used belts; that the family was repeatedly evicted from their homes and hungry, and lived in fear of those to whom the father owed gambling debts; or that Ferrell's mother suffered from clinical depression, suicidal ideations, rage blackouts, and urges to physically injure her children.

Since we grant habeas relief concerning the death penalty, we have no occasion to address Ferrell's remaining penalty-phase claims. Finally, we are unpersuaded by Ferrell's claim that he was otherwise unconstitutionally encumbered by conflict-ridden counsel.

I.

A. The Murders and the Guilt Phase of Ferrell's Trial

This tale of murder and abuse began on the night of December 29, 1987, when Eric Lynn Ferrell spent the evening at his grandmother's home along with his grandmother, Willie Myrt Lowe, and his cousin, Tony Kilgore. (RE43 at 554, 632–33).¹ At around 5:30 a.m. the next morning, Ferrell left Mrs. Lowe's home and returned to his mother's house, where he lived. (RE43 at 554).

Later that morning Ferrell called to ask a friend, Barry Wise, for a ride to Ferrell's probation officer to pay his overdue probation fees. (RE43 at 579, 615). While on route, Wise saw Ferrell with a “wad of money,” and heard Ferrell explain that the money had come from the police for loss of income after a lawsuit. (RE43 at 579, 615). Ferrell paid the fees to his probation officer, who had previously threatened to revoke Ferrell's probation and incarcerate him if he did not pay up. (RE43 at 600). Wise described the Petitioner as acting “real hyper” and “upset” that morning. (RE43 at 579).

In the interim, shortly before noon, one of Mrs. Lowe's daughters, Annie Fallen, stopped by Mrs. Lowe's house to pick up her mother for an appointment. (RE10 at 848–49). She and a neighbor discovered the bodies of Mrs. Lowe and fifteen-year-old Tony Kilgore in a bedroom where they had been murdered. Both Willie Myrt Lowe and Tony Kilgore had been shot twice in the head at contact range and were dead. Tony Kilgore's head was found resting on a pillow indicating that he was asleep, and never disturbed, when he was shot. (RE11 at 1178–82, 1221–22). Mrs. Lowe suffered two gunshot wounds to the head. Her dress was torn and two buttons were detached from the front of her dress. The medical examiner concluded that the time of death of both victims was around 5:30 a.m. (RE11 at 1241, 1244–45, 1247–48).

After paying his probation fees, Petitioner called home. Ferrell's mother had already gone to the crime scene and a neighbor answered Ferrell's call. (RE43 at 569–72). The neighbor only advised Ferrell that his grandmother was sick and that his mother had gone to his grandmother's house. ( Id.) The neighbor purposefully did not tell Ferrell anything else, and specifically did not advise him his grandmother was dead. (RE43 at 569–72, 614). Ferrell explained to his friend that “the mafia had hurt his grandmother because his Uncle Freddie had killed a guy last weekend,” and “he needed to get back home.” (RE43 at 581, 615; RE10 at 897–98).

At the site of the fatal shootings, the police discovered three purses, one underneath the bed where Mrs. Lowe normally slept, one on the door, and one on the wooden table beside her bed. The contents of one purse had been emptied onto the bed. (RE11 at 1037–39).

As part of the investigation, Ferrell, along with other family members, were interviewed at the police station. During his initial interview, the police asked Ferrell to empty his pockets and discovered about $676 in cash and a lot of loose change. (RE43 at 638). During subsequent interviews, Ferrell was unable to account for the $676 in cash. Contrary to what he had told his friend, he told the police that he had saved some of the money and had recently been paid for a construction job. (RE10 at 981–84; RE11 at 1046–47). But the detectives soon learned that Ferrell usually had little or no money. (RE43 at 640). Also, contrary to his claim that nothing was missing from Mrs. Lowe's home, the police discovered that a substantial amount of money was missing. According to family members, Mrs. Lowe received Social Security benefits and approximately $50 a day in change² from selling drinks, candy, and snacks in the neighborhood. (RE43 at 568, 631). She kept all of her money in her house. Further, Mrs. Lowe's daughter, Annie Fallen, had taken her mother to the hospital earlier in the year and Mrs. Lowe had about $700 in cash at the time. (RE10 at 846–48). Mrs. Lowe hid the money in a powder puff in her bra. (RE10 at 847–48).

Based on the repeated irregularities in statements made by Ferrell during his interviews with the police, the police obtained a search warrant for his mother's home, where he resided. (RE43 at 644). Pursuant to the warrant, the police searched the home and found a .22 caliber revolver later identified as the murder weapon. (RE43 at 644, 654, 657). The police then arrested Ferrell, and discovered four spent rounds of .22 ammunition still in his pocket; the rounds were later determined to have been fired from the murder weapon. (RE43 at 647–48).

During the course of the investigation, Ferrell gave several voluntary statements, was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and waived them in writing at least two times. (RE43 at 643, 650). In his first three or four statements to police, he claimed that on the morning of the murders his grandmother had awakened him at 5:30 a.m., and he had left to get ready for work. (RE43 at 635). Ferrell also mentioned that he spent the night with his grandmother because she was afraid to stay alone after having received a series of threatening phone calls.³ (RE43 at 634). He did not report that anything had happened that morning.

In his final statement to the police, however, the Petitioner claimed that two men had entered his grandmother's home as he was leaving and demanded to see his uncle, Fred Lowe, who had just been charged with murdering a man named Whimphrey (“Wimp”) Hinton. (RE43 at 651).⁴ Ferrell said the two men then took his gun from him and shot both Tony Kilgore and Mrs. Lowe in the bedroom where the bodies were found. (RE43 at 651–52). After the shooting, the two men purportedly returned the gun to Ferrell, inexplicably gave him a large sum of cash, and let him live. (RE43 at 652). He also told the officers that he left his grandmother's home through the front door (which was dead bolted when police arrived) and went home. (RE43 at 652). Ferrell then put his gun away, checked to see how much money the men had given him, and made himself hot chocolate. (RE43 at 652–53).⁵

Ferrell was tried for the murders in the Superior Court of DeKalb County, Georgia. Ferrell was the only witness called to testify for the defense. Again, he claimed that two men had committed the killings in revenge for his uncles' killing of Wimp Hinton (RE11 at 1321), and that they left him with the gun and money. However, Tony Hinton, the son of murder victim Hinton, was allowed, over defense counsel's objection, to testify that no one in his family sought revenge for his father's death. Ferrell's uncle, Fred Lowe, assisted the prosecution in obtaining Tony Hinton's testimony. (RE11 at 1162–64)....