Head v. Carr, No. S00A1798

• Decision Date: 19 March 2001
• Docket Number: No. S00X1800., No. S00A1798
• Citation: 544 S.E.2d 409,273 Ga. 613
• Parties: HEAD v. CARR. Carr v. Head.
• Court: Georgia Supreme Court

544 S.E.2d 409

273 Ga. 613

HEAD v. CARR.

Carr v. Head.

Nos. S00A1798, S00X1800.

Supreme Court of Georgia.

March 19, 2001.

Reconsideration Denied April 5, 2001.

Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Beth Attaway Burton, Asst. Atty. Gen., for appellant.

Brian S. Kammer, Nila J. Robinson, Appleton, Atlanta, for appellee. THOMPSON, Justice.

In 1994, a jury convicted Timothy Don Carr of malice murder, motor vehicle theft, and other offenses and sentenced him to death for the murder. This Court affirmed the convictions and death sentence, Carr v. State, 267 Ga. 547, 480 S.E.2d 583 (1997), and the United States Supreme Court denied Carr's petition for certiorari. Carr v. Georgia, 522 U.S. 921, 118 S.Ct. 313, 139 L.Ed.2d 242 (1997). In 1998, Carr filed a petition for writ of habeas corpus challenging his convictions and death sentence and an evidentiary hearing was held in 1999. The habeas court ruled in its final order that all of Carr's claims other than ineffective assistance of counsel were without merit. The habeas court then vacated Carr's death sentence after finding that Carr's trial counsel had been ineffective in the preparation and presentation of Carr's case. The warden appeals, Case No. S00A1798, and Carr cross-appeals, Case No. S00X1800. We reverse and reinstate Carr's death sentence.

The evidence adduced at trial showed that Carr was at a party in Macon in October 1992 with his girlfriend, Melissa Burgeson, and the 17-year-old victim, Keith Young. People at the party consumed alcohol and the juice from boiled hallucinogenic mushrooms; some also smoked marijuana. Burgeson obtained Young's car keys claiming that he was too intoxicated to drive. She and Carr discussed robbing the victim of his car; they also knew that Young had just cashed his paycheck. In the early morning hours, Burgeson, Carr, Young, and two juveniles (one male, one female) left the party in Young's car. Burgeson was driving, Young was in the front passenger seat, and the others were in the back seat. During the drive, Carr displayed a knife to one of the juveniles and whispered to her that he was going to kill Young. There was also a baseball bat in the back seat of the car. Burgeson stopped the car on a dirt road under the pretense that they were going to look for mushrooms and everyone exited except for the female juvenile. When Young was looking in the trunk, Burgeson whispered to Carr to "do it now." Carr grabbed Young from behind and cut his throat twice. Burgeson said, "that ain't enough" and Carr stabbed the victim several times in the chest. Young pleaded for his life, but Carr laughed and said "I'm going to kill you, boy." After Young had fallen to the ground, Carr rolled him over on his stomach and stabbed him several times in the lower back. The male juvenile then handed Carr the baseball bat and he beat the victim in the head, fracturing his skull. Burgeson took cash from the victim's pockets and they returned to Macon, where they dropped off the male juvenile and drove to Tennessee. In Tennessee, the police chased the victim's car and arrested Carr, Burgeson, and the female juvenile after they crashed. Carr, 267 Ga. at 548(1),480 S.E.2d 583.

CLAIMS THAT ARE BARRED

1. Claims that were previously litigated and decided on direct appeal are barred because "[a]fter an appellate review the same issues will not be reviewed on habeas corpus." Elrod v. Ault, 231 Ga. 750, 750, 204 S.E.2d 176 (1974). See also Gaither v. Gibby, 267 Ga. 96(2), 475 S.E.2d 603 (1996) (issues raised and decided on direct appeal cannot be reasserted on habeas corpus). The habeas court correctly ruled that these claims were barred from habeas corpus review because they have been raised and decided on direct appeal: the proportionality of Carr's death sentence, Carr, 267 Ga. at 559(11), 480 S.E.2d 583; the admissibility of his audiotaped statement, id. at 551-552(3), 480 S.E.2d 583; the trial court's failure to excuse for cause prospective jurors Hunnicut, Kendrick, and Bittick, id. at 553-555(5), (6), 480 S.E.2d 583; the denial of Carr's request for a hearing on the voluntariness of his audiotaped statement, id. at 552-553(4), 480 S.E.2d 583; and Carr's objections to the prosecutor's closing arguments, id. at 555-559(7), (8), 480 S.E.2d 583.

CLAIMS THAT ARE DEFAULTED

2. A habeas petitioner who fails to raise an issue that he could have raised on direct appeal defaults the issue on habeas corpus, unless he can meet the cause and prejudice test.

[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.

Black v. Hardin, 255 Ga. 239(4), 336 S.E.2d 754 (1985). See also OCGA § 9-14-48(d). To show cause, Carr must demonstrate that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim that has been procedurally defaulted." Turpin v. Todd, 268 Ga. 820, 825, 493 S.E.2d 900 (1997), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To show prejudice, Carr must demonstrate actual prejudice that "`worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Turpin, supra at 828, 493 S.E.2d 900, quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The only exception to the cause and prejudice test is the granting of habeas corpus relief to avoid a "miscarriage of justice," which is an extremely high standard. See Valenzuela v. Newsome, 253 Ga. 793(4), 325 S.E.2d 370 (1985).

Carr raised the following claims for the first time on habeas corpus: the constitutionality of the proportionality review conducted by this Court; the trial court's alleged errors in excusing some potential jurors and in failing to strike others; the trial court's alleged restriction of voir dire; the trial court's refusal to grant a change of venue; the trial court's exclusion of some mitigation evidence; alleged violations of the Unified Appeal Procedure; alleged prosecutorial misconduct; alleged inadequate assistance by experts; the use of one jury to determine both guilt and sentence; improper guilt-innocence phase jury instructions; the constitutionality of execution by electrocution; and the constitutionality of the Unified Appeal Procedure. These claims could have been raised on direct appeal and Carr has not shown sufficient cause to explain why they were not raised. The habeas court thus correctly ruled that these claims are procedurally defaulted. Black, supra. We find no error with the trial court's sentencing phase jury charge.

OTHER CLAIMS

3. The habeas court properly denied Carr state funds to pursue habeas corpus relief. Gibson v. Turpin, 270 Ga. 855(1), 513 S.E.2d 186 (1999); Johnson v. Zant, 249 Ga. 812(11), 295 S.E.2d 63 (1982). The evidence supports the habeas court's findings that there were no deals between the district attorney and the juvenile witnesses in exchange for their testimony and that there was no juror or prosecutorial misconduct during Carr's trial. The habeas court also correctly found that Carr's juvenile adjudication for simple battery was valid and properly admitted.

INEFFECTIVE ASSISTANCE OF COUNSEL

4. Carr's claim of ineffective assistance of counsel is neither barred nor defaulted because this claim need not be raised until trial counsel no longer represents the defendant. White v. Kelso, 261 Ga. 32, 401 S.E.2d 733 (1991). Carr's trial counsel represented him throughout his direct appeals so their alleged ineffectiveness remains a viable claim on habeas corpus. Id. In order to prevail, Carr must show both deficient performance by trial counsel and actual prejudice. 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(1), 325 S.E.2d 362 (1985). To show deficient performance, he must demonstrate that trial counsel's performance was not reasonable under the circumstances confronting them before and during the trial, without using hindsight. Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052; Smith, supra. Carr's burden is high because trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra at 690, 104 S.Ct. 2052. To show actual prejudice, Carr must demonstrate that "there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Smith, supra. See also Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

A claim of ineffective assistance of counsel is a mixed question of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. 2052; Lajara v. State, 263 Ga. 438(3), 435 S.E.2d 600 (1993). The proper standard of review requires that we accept the habeas court's factual findings unless clearly erroneous, but we independently apply the legal principles to the facts. Linares v. State, 266 Ga. 812(2), 471 S.E.2d 208 (1996). The habeas court determined that trial counsel had been deficient for several reasons with resulting actual prejudice sufficient to vacate Carr's death sentence. Because the habeas court's rulings are either factually or legally unsupportable, we reverse.

A. The guilt-innocence phase.

The trial court did not err by ruling that the evidence of Carr's guilt was too great for him to show that actual prejudice resulted from alleged errors in the guilt-innocence phase. See Strickland, 466 U.S. at...