Baxter v. Kemp

• Decision Date: 24 May 1990
• Citation: 391 S.E.2d 754,260 Ga. 184
• Parties: BAXTER v. KEMP. S90A0047.
• Court: Georgia Supreme Court

Page 754

391 S.E.2d 754

260 Ga. 184

BAXTER v. KEMP.

S90A0047.

Supreme Court of Georgia.

May 24, 1990.

Ellis G. Arnall, James W. Butler, III, Joseph A. D'Amico, Patrick E. Bradshaw, Arnall, Golden & Gregory, Atlanta, for Baxter.

Michael J. Bowers, Atty. Gen., Atlanta, for Kemp.

Susan V. Boleyn, Sr. Asst. Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., Atlanta.

BENHAM, Justice.

This is an appeal from the denial of habeas corpus relief. Theappellant, Norman Darnell Baxter, was convicted of murder and sentenced to death in Henry County. On direct appeal, this court affirmed Baxter's conviction and death sentence. See Baxter v. State, 254 Ga. 538, 331 S.E.2d 561 (1985). The U.S. Supreme Court denied Baxter's application for writ of certiorari. Baxter v. Georgia, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 275 (1985). Baxter then applied for writ of habeas corpus in Butts County, alleging in his amended petition 21 grounds for relief. See OCGA § 9-14-40 et seq. After hearings, his petition was denied. We granted Baxter's application for a certificate of probable cause. OCGA § 9-14-52(b). We now affirm the judgment of the proceedings below.

1. A number of claims Baxter raises in his habeas petition have been previously raised and ruled upon in the direct appeal to this court. Baxter v. State, supra. Absent compelling circumstances not present here, these claims may not be relitigated on collateral review. Gunter v. Hickman, 256 Ga. 315(1), 348 S.E.2d 644 (1986). Thus, the habeas court properly denied relief on grounds 1, 4, 5, 6, 7, 8, 13, 14, 16 and 21 of Baxter's amended petition, as these grounds of the petition raise issues already decided by this court on direct appeal. ¹

In addition, parts of Baxter's second, third and fifteenth grounds for relief were addressed on direct appeal. Relief was properly denied as to those issues raised in grounds 2, 3 and 15 which are successive. ²

2. A number of grounds for relief concern issues raised for the first time on collateral review. The state contends many of these grounds are procedurally defaulted. Baxter counters that the state has raised the issue of procedural default for the first time on appeal and has, therefore, procedurally defaulted any issue of Baxter's procedural defaults. Moreover, he contends some of these issues were not procedurally defaulted, and if others were, then, given an opportunity, he could demonstrate either cause and prejudice or a miscarriage of justice sufficient to excuse a procedural default.

Our code specifically provides that habeas relief may be granted notwithstanding a procedural default where the petitioner can show cause for noncompliance with a procedural requirement and actual prejudice to the accused. Even absent such a showing, relief remains available to avoid a miscarriage of justice. OCGA § 9-14-48(d). See Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985); Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370 (1985).

Procedural default was not an issue below, and we have no habeas court findings on it one way or the other. For example, the state now contends Baxter cannot complain for the first time on habeas of the suppression of an allegedly exculpatory statement by the victim's mother. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Baxter answers that he could not have raised this issue earlier because--due to the state's failure to disclose--he did not know about the statement. Whether this is the case the record does not disclose with certainty, and the habeas court did not decide the issue.

In an appropriate case, we might remand to the habeas court for resolution of issues of procedural default. Valenzuela v. Newsome, supra. See also OCGA § 5-6-8; Harris v. Hall, 70 Ga. 831, 838-39 (1883). However, in this case we shall simply address the claims on their merits, as did the habeas court.

3. Even assuming the statement by the victim's mother was not disclosed to Baxter, ³ there was no Brady violation. As noted in the opinion, Don Bussey was the victim's "old boyfriend who initially was a suspect in the case." Baxter v. State, supra, 254 Ga. at 544, 331 S.E.2d 561. The victim's mother stated that Bussey was a criminal, was violent, and had on a previous occasion beat the victim. In light of the strong evidence establishing Baxter's guilt, he has failed to show that, had the statement been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different. U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The habeas court correctly denied relief on this portion of ground 3 of the amended petition.

4. The habeas court did not err in denying relief on grounds 10, 11 and 12. The Unified Appeal Procedure is not unconstitutional for any reason alleged. Isaacs v. State, 259 Ga. 717(7), 386 S.E.2d 316 (1989). Death-qualification of the jury is not improper. Pope v. State, 256 Ga. 195 (7a), 345 S.E.2d 831 (1986). See also Isaacs v. State, supra 259 Ga. at 732(25), 386 S.E.2d 316. Baxter has introduced no evidence to support his claim that improper discrimination played a part in his case. McKleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

5. There was no reversible error in the trial court's guilt-phase charge on the presumption of truthfulness as alleged in ground 15 of Baxter's amended petition. Noggle v. State, 256 Ga. 383(4), 349 S.E.2d 175 (1986).

6. The trial court's instructions on the subd. b(4) aggravating circumstance were not inadequate. OCGA § 17-10-30(b)(4). The language of the circumstance itself states that it is applicable where "[t]he offender committed ... murder ... for the purpose of receiving money or any other thing of monetary value." Id. (Emphasis supplied.) Ground 17 of Baxter's petition is without merit.

7. The habeas court properly denied relief on grounds 19 and 20 of Baxter's petition for reasons stated in the court's order.

8. The remaining grounds of error relate, directly or indirectly, to Baxter's allegedly impaired mental condition and incompetence. ⁴

(a) The evidence pertinent to these grounds may be summarized as follows:

In May of 1972, Baxter was indicted in Bulloch County for the offense of robbery. On May 23, 1972, following a conference in chambers between the trial judge, the prosecutor, and Baxter's defense attorney, the judge signed an order stating:

It is the opinion of the court, after hearing evidence, that this defendant, Norman Baxter, is not mentally capable of standing trial at this time and the court finds in favor of the special plea of insanity at the time.

The court finds from the evidence that he is unable to intelligently communicate with his counsel or to make a statement in his own behalf or to cooperate with his attorney.

Baxter was committed to Central State Hospital in Milledgeville. He was returned to Bulloch County after evaluation by Miguel Bosch, M.D., who reported:

Mr. Baxter was given the diagnosis of: Personality Disorder, Antisocial Type. This refers to a non-psychotic disorder characterized by deeply ingrained maladaptive patterns of behavior, which patterns are lifelong. This particular category of Antisocial is reserved for individuals who are basically unsocialized and whose behavior pattern brings them repeatedly into conflict with society. They are grossly selfish, callous, irresponsible, impulsive, and unable to feel guilt or to learn from experience and punishment.

We feel that this patient has not manifested any evidence of a psychotic disorder and that he is mentally competent at present and able to advise with his counsel in the preparation of his defense. His examination has been completed, and we recommend that he be returned into the custody of the court for final disposition of his case.

On August 25, 1972, Baxter entered a plea of guilty and was given a probated sentence.

Before the trial in this case, the state furnished the defense with Baxter's "rap sheet." Baxter contends there was no reference to a Bulloch County conviction in the "rap sheet" furnished to him. His trial attorneys testified they were unaware of the Bulloch County conviction or the court's order finding him incompetent.

Baxter's attorneys talked to his mother and brothers, who told them Baxter is a "very dangerous person," and on at least one occasion had stolen money from his mother and broken her arm. They discovered Baxter had a long history of criminal behavior and incarceration, as a juvenile and as an adult. They retained the services of a minister to investigate and testify about Baxter's poor upbringing and family problems. They did not use family members as witnesses; because of their hostility to Baxter, his attorneys felt they would have done more harm than good.

His attorneys testified that although Baxter sometimes did not feel like talking to them, he did not behave "abnormally" or as if "psychotic." They did, however, request funds for an independent psychiatrist in the hopes of finding something they could use in mitigation. The court denied this request, but offered an evaluation by a medical expert employed by the state. They declined, thinking it was more likely the state would obtain evidence favorable to it, than that they would obtain evidence favorable to the defendant.

After he instituted the instant habeas proceeding, Baxter was evaluated by Dr. Michael Prewett, who has a Ph.D. degree in philosophy and clinical psychology, and is a licensed applied psychologist. Dr. Prewett's findings were presented by affidavits to the habeas court. See OCGA § 9-14-48(a). In these affidavits, Dr. Prewett states that Baxter has had "numerous involuntary admissions to Central State Hospital" (presumably while a juvenile) and that the admission diagnoses typically have been "adjustment reaction of adolescence and unsocialized aggressive reaction." None of the hospital records he refers to are in the record of this...