Gary v. State
| Citation | 389 S.E.2d 218,260 Ga. 38 |
| Decision Date | 06 March 1990 |
| Docket Number | No. S89P0171,S89P0171 |
| Parties | GARY v. The STATE. |
| Court | Supreme Court of Georgia |
Carlton Gary was convicted by a jury in Muscogee County on three counts each of murder, rape and burglary. He was sentenced to death on each of the murder counts. 1
1. Between September 11, 1977 and April 19, 1978, eight elderly women were raped in their homes. One woman survived; the other seven were strangled to death. Seven of the victims lived in the Wynton area of Columbus. One victim lived two miles away, but had attended choir practice in Wynton the evening she was murdered.
Police had no viable suspects in the case until 1984, when a gun stolen from the Wynton area in 1977 was discovered in Michigan--a consequence of that state's gun registration laws--in the possession of Carlton Gary's cousin. After further investigation, Gary was arrested for burglary on May 3, 1984. His fingerprints matched those taken from the scenes of four of the murders.
Gary admitted to law enforcement officers that he was present at seven of the crime scenes (the eighth he could not remember), but claimed he was only a burglar. He blamed the murders on another. Further investigation revealed that in other instances in New York and in South Carolina, Gary had committed violent crimes and blamed others. For example, he raped and murdered an 89-year-old woman in her home in Albany, New York in 1970. His fingerprints were found at the crime scene. Gary claimed one John Mitchell committed the murder. Mitchell, however, was acquitted by a jury. In another New York crime involving rape and burglary, Gary admitted only to being a "lookout" and blamed the rape on another. In all these cases, no evidence other than Gary's own statements and testimony supported his claim that another person was involved in the crime with him.
The defendant does not question the sufficiency of the evidence, and we find that it supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Trial counsel, August F. Siemon, represented the defendant pro bono. His first move upon entering the case was to secure the dismissal of the defendant's court-appointed attorneys. Later, he sought additional court-appointed counsel. The trial court denied the motion after Siemon stated: "There is no question in my mind that I have the personal resources to provide representation to [the defendant]." We note that the defendant was represented by two additional attorneys (acting pro bono) during much of the pre-trial proceedings.
The defendant also sought funds for forensic and investigative assistance. These requests for funds were denied.
During the pre-trial proceedings and at the outset of the trial, attorney Siemon stated to the trial court that, because of the lack of funds and time, he was not prepared to try the case. The case proceeded to trial over his objection. When the case came to this court on appeal, we exercised our discretion under the Unified Appeal Procedure to remand the case to the trial court for a hearing to determine whether, for any reason, including lack of funds, the defendant was denied effective assistance of counsel. See Rule IV(B)(1) of the UAP, Ga. Court & Bar Rules at 9-15.
On remand, the trial court appointed two attorneys to represent the defendant on the question of effectiveness of trial counsel. However, the defendant obtained the services of attorney Frank L. Derrickson, who, as had trial counsel, represented the defendant pro bono. The issue came on for hearing. The defendant refused to waive his attorney-client privilege as to any of his three trial attorneys, and none of them testified on behalf of the defendant. Lead trial attorney Siemon was called as a witness by the state; however, the defendant invoked his attorney-client privilege to prevent his attorney from answering any questions about tactical decisions he made while representing the defendant.
(a) The defendant contends the court erred by refusing to dismiss his two court-appointed attorneys after attorney Derrickson entered the case on remand. However, although these two attorneys were not dismissed, they did not actively participate in, or interfere with, the proceedings on remand. Hence, there was no denial of the defendant's right to choose his own counsel. Cf. McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ().
(b) The defendant contends he was denied effective assistance of counsel at trial. The trial court found as follows:
In this case ample opportunity was given this defendant through a hearing before this court with counsel of his own choosing (and additional counsel, if he chose so to avail himself) to urge any and all possible errors affecting the trial or prejudicing the defendant.... This defendant refused to accept the opportunities provided him. For reasons probably known only to itself the State elected to go further than even the defendant in the course of the hearing and attempted to elicit from defense counsel, August F. Siemon, reasons for various avenues of conduct. To each and every material question the defendant asserted his privilege not to have his counsel testify. This is true even though the defendant was made inescapably aware by this court that this was his opportunity to have these possible issues litigated. It is therefore the finding of this court that as to those issues addressed during the hearings on remand that the defendant knowingly, intelligently and voluntarily waived those issues after having been repeatedly advised by the court that his conduct would amount to such a waiver. Therefore these issues are resolved adversely to Carlton Gary.
A defendant cannot be forced to litigate an issue. Cf. Morrison v. State, 258 Ga. 683(3), 373 S.E.2d 506 (1988). The defendant was given an opportunity to prove he was denied effective assistance of counsel. He declined to do so. We agree with the trial court that he knowingly, voluntarily and intelligently has waived any issue of effectiveness of trial counsel.
(c) In his post-remand brief, the defendant continues to claim, as he did in his original appellate brief, that the trial court's refusal (prior to the original trial) to appoint additional counsel or to provide funds for forensic and investigative assistance was an abuse of discretion, see Isaacs v. State, 259 Ga. 717(13)(a), 386 S.E.2d 316 (1989), and that he was penalized improperly for exercising his right to retain his own attorney pro bono.
The defendant was given the opportunity to prove that the denial of funds for legal, investigative, and forensic assistance prejudiced his defense; i.e., that because of the trial court's denial of funds, attorney Siemon could not effectively represent his client. The defendant waived that opportunity, and we need not further address his contentions in this regard.
3. The defendant contends the conditions of his solitary confinement while awaiting trial had an adverse impact on his ability to stand trial. However, not only has this issue been litigated--and relief denied--in a pre-trial habeas corpus petition filed by the defendant on this issue, but also in a special trial to determine his competence to stand trial. The special jury found him competent to stand trial. See OCGA § 17-7-130.
While awaiting his trial, the defendant was held in "administrative segregation" for his own protection. He was in a private cell with a commode, a lavatory, a bunk with mattress, blanket and pillow, a skylight, a television, a radio, and reading materials. He was given extensive visitation privileges. The record does not support the defendant's claim of unconstitutionally harsh conditions of confinement. The special jury's finding that he was competent to stand trial is supported by the evidence.
4. The defendant was caught in an escape attempt in December of 1985. Afterward, he allegedly began behaving in a "bizarre" manner. On March 10, 1986, the day his trial was scheduled to begin, he filed a special plea of incompetence. He was examined by Doctor Jerald Lower, who concluded the defendant was deliberately feigning mental disorder. The defendant claimed he was suffering from sensory deprivation disorder; however, expert testimony was presented at the competence hearing that such condition is associated only with complete sensory deprivation not at all consistent with the condition of the defendant's incarceration.
The defendant contends he was denied due process by the court's refusal to grant him funds for examination by an independent mental health expert. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We disagree. Nothing before the court reasonably indicated that the defendant's sanity would be a significant factor at trial. The denial of funds was not error.
5. The percentage of black citizens aged 18 and over in Muscogee County is 31 percent. The percentage of black citizens aged 18 and over in Spalding County, to which venue was changed (see fn. 1, supra) is 24.7 percent. The defendant contends the selection of new venue in Spalding County was racially motivated. The circumstances of this case do not establish prima facie that racial discrimination motivated the trial court's decision to change venue to Spalding County.
6. There was no abuse of discretion in the conduct of voir dire. Curry v. State, 255 Ga. 215, 336 S.E.2d 762 (1985).
7. Before trial, the defendant moved to recuse Judge Followill on the ground that his ruling on the motion for change of venue showed he was guilty of racial prejudice. Judge Morgan presided over the hearing on the motion to recuse, and properly denied the motion. United States v. Meester, 762 F.2d 867, 884-85 (11th Cir.1985). The defendant now contends Judge Followill should...
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