Schofield v. Holsey

• Decision Date: 26 February 2007
• Docket Number: No. S06A1776.,No. S06X1777.,S06A1776.,S06X1777.
• Citation: 281 Ga. 809,642 S.E.2d 56
• Parties: SCHOFIELD v. HOLSEY. Holsey v. Schofield.
• Court: Georgia Supreme Court

281 Ga. 809

642 S.E.2d 56

SCHOFIELD v. HOLSEY.

Holsey v. Schofield.

No. S06A1776.

No. S06X1777.

Supreme Court of Georgia.

February 26, 2007.

Reconsideration Denied March 27, 2007.

Thurbert E. Baker, Atty. Gen., Patricia B. Attaway Burton, Susan V. Boleyn, Asst. Attys. Gen., Department of Law, Atlanta, for Appellant.

Brian Stuart Kammer, Thomas Howard Dunn, Georgia Resource Center, Atlanta, James P. Harrington, Harrington & Mahoney, Buffalo, NY, for Appellee.

Fredric Daniel Bright, Dist. Atty., District Attorneys Ass'n of GA, Milledgeville, Other Party Representation.

HINES, Justice.

Robert Wayne Holsey was convicted of murder and armed robbery, and he was sentenced to death for the murder. This Court affirmed his convictions and sentences in 1999. Holsey v. State, 271 Ga. 856, 524 S.E.2d 473 (1999). Holsey filed a petition for writ of habeas corpus on October 6, 2000. Evidentiary hearings were held June 16-18, 2003, and December 8-9, 2003. The habeas court vacated Holsey's death sentence in an order filed of record on May 15, 2006. The Warden has appealed in case number S06A1776. Holsey has cross appealed in case number S06X1777. In the Warden's appeal, this Court reverses and reinstates Holsey's death sentence. In Holsey's cross appeal, this Court affirms.

I. Factual Background

The evidence at trial showed that Robert Wayne Holsey robbed a Jet Food Store in Milledgeville with a handgun shortly before 1:30 a.m. on December 17, 1995. Holsey received money from both the cash register and the lottery machine after telling the store clerk, "Bitch, I want you to give me all your money." Holsey's voice was recorded on the store's surveillance videotape and was identified at trial by Holsey's girlfriend. Holsey fled the convenience store in a red Ford Probe automobile he had borrowed from his sister's girlfriend earlier that night. The red Probe was stopped at the Royal Inn Motel approximately four minutes later by Deputy William Edward Robinson, IV. Deputy Robinson made a radio call identifying the red Probe's license plate number and then approached the automobile holding a flashlight. Deputy Robinson received two bullet wounds, one to his right arm and one to the back of the right side of his head. Deputy Robinson managed to fire several shots before sustaining the fatal head wound.

After the shooting, another deputy spotted the Probe and turned his patrol vehicle around to give chase, but the Probe sped away and escaped. Witnesses observed the Probe traveling at a high rate of speed through a red light and into lanes of oncoming traffic. One witness who knew Holsey testified that she saw him alone in the Probe as it passed by at the red light.

Having thus far evaded capture, Holsey called his girlfriend, Mary Jackson, and asked her to pick him up at his sister's house. He specifically directed Jackson to come in her blue Jeep Cherokee vehicle rather than in her burgundy-colored automobile. When Jackson arrived at Holsey's sister's house, Holsey called to Jackson from behind a fence on a hill. Holsey had changed clothes since he left Jackson's house several hours earlier. Jackson refused Holsey's request to take him to his mother's house so he could monitor a police scanner, but Jackson did agree to his request to drive him past the motel where the murder had occurred and then back to his sister's house by way of back roads. When back at his sister's house, Holsey directed Jackson to park her Jeep Cherokee behind the Probe to conceal its license plate. As Holsey and Jackson sat in the parked Jeep Cherokee, a police officer spotted the Probe and verified that its license plate number matched the license plate number in the victim's radio call. Holsey exited the Jeep Cherokee, refused the officer's command to put his hands up, looked around as though searching for an escape route, and then ultimately surrendered.

Law enforcement officers discovered, hidden near Holsey's sister's house, clothing that matched the clothing worn by the armed robbery perpetrator and a hat belonging to Jackson's son. The murder weapon was concealed nearby and was later found by a civilian. Holsey's tennis shoes were taken from him after his arrest, and expert testimony showed that one of the shoes had blood on it with DNA consistent with the victim's blood. Holsey gave strong physical resistance and screamed loudly when officers initially attempted to conduct a gunshot residue test on his hand. A trace metal detection test of Holsey's hand was administered later and rendered a result consistent with Holsey's having held the murder weapon, which was metal with wooden grips. A bullet recovered from the Probe was matched with Deputy Robinson's service weapon. The bullet retrieved from Deputy Robinson's head during his autopsy was matched with a handgun belonging to Holsey's girlfriend, Mary Jackson. Jackson testified that Holsey admitted to her after the murder that he had taken the handgun.

Evidence admitted during the sentencing phase showed that Holsey had robbed another convenience store in 1983 after striking the clerk in the face with a brick and that he had stabbed one man four times and repeatedly shot at another man and a woman with a rifle in 1992 during a dispute at a nightclub.

II. Alleged Ineffective Assistance of Counsel

Holsey made several claims in the habeas court regarding the alleged ineffective assistance of his trial counsel. To prevail on his claims, Holsey must show that his trial counsel rendered constitutionally-deficient performance and that actual prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783-784(1), 325 S.E.2d 362 (1985) (bringing into Georgia law the standards of Strickland v. Washington). In order to find actual prejudice, this Court must conclude that "there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors,¹ the result of the proceeding would have been different [Cit.]." Smith, 253 Ga. at 783(1), 325 S.E.2d 362. In considering an ineffective assistance claim, this Court accepts the habeas court's findings of fact unless they are clearly erroneous, but this Court independently applies those facts to the law. Strickland, 466 U.S. at 698, 104 S.Ct. 2052; Lajara v. State, 263 Ga. 438, 440(3), 435 S.E.2d 600 (1993). Because, as is discussed below, Holsey has failed to show that the absence of his trial counsel's alleged deficiencies in reasonable probability would have resulted in a different outcome in either phase of his trial, this Court reverses the portion of the habeas court's order granting certain ineffective assistance claims and affirms the portion of the habeas court's order denying other ineffective assistance claims. Lajara, 263 Ga. at 440(3), 435 S.E.2d 600 (quoting Strickland, 466 U.S. at 697(IV), 104 S.Ct. 2052 (noting that a court may deny an ineffective assistance claim based solely on the absence of prejudice arising from counsel's alleged deficiencies)).

The Warden contends that the habeas court erred in vacating Holsey's death sentence, which it did based in part upon trial counsel's alleged ineffective assistance in preparing a possible claim that Holsey was guilty but mentally retarded. See OCGA § 17-7-131. Trial counsel obtained funds from the trial court to hire a mental health expert. Trial counsel then hired Dr. Michael Shapiro, a psychologist, who evaluated Holsey in 1996 and found him not to be mentally retarded. Holsey argued in the habeas court that his trial counsel failed to provide Dr. Shapiro certain materials, including the original questionnaires completed by Holsey's family members, Youth Detention Center records, school records, and Department of Corrections records. However, even if this Court accepts that trial counsel failed to provide these materials to Dr. Shapiro and that trial counsel thereby rendered constitutionally-deficient performance, no actual prejudice regarding a possible mental retardation claim can be shown. This is so because, after reviewing the materials he allegedly should have been given by trial counsel before reaching his original diagnosis, Dr. Shapiro re-affirmed in the habeas proceedings his original, pre-trial opinion that Holsey was not mentally retarded but was, instead, within the "borderline range" of intelligence. Because, even with access to the materials Holsey has now amassed, trial counsel's expert would not have testified that Holsey was mentally retarded, there is no reasonable probability that trial counsel would have chosen to pursue a guilty but mentally retarded verdict or that a jury would have voted for such a verdict if one had been sought.

As is discussed below regarding Holsey's miscarriage of justice claim, Holsey has submitted testimony in his habeas proceedings from experts criticizing Dr. Shapiro's testing and scoring methods. Holsey has also presented testimony from other experts asserting that he is mentally retarded, testimony that is contradicted by expert testimony presented by the Warden. However, the critical issue regarding this portion of Holsey's ineffective assistance claim is what Holsey's trial expert, Dr. Shapiro, would have been willing to testify to had he been provided the materials trial counsel allegedly failed to provide. A defendant is not constitutionally entitled to any certain level of effective assistance from experts that are reasonably selected by trial counsel and that are funded within constitutional requirements. Turpin v. Bennett, 270 Ga. 584, 587-588(1), 513 S.E.2d 478 (1999). This Court concludes that, with what Dr. Shapiro would have been willing to testify to if trial counsel had provided him everything Holsey now contends they should have, there is no reasonable probability of a different outcome with regard to a guilty but mentally retarded verdict.

The Warden next...