Head v. Ferrell, No. S01A0840

• Decision Date: 22 October 2001
• Docket Number: No. S01A0840, No. S01X0842.
• Citation: 274 Ga. 399,554 S.E.2d 155
• Parties: HEAD v. FERRELL. Ferrell v. Head.
• Court: Georgia Supreme Court

554 S.E.2d 155

274 Ga. 399

HEAD v. FERRELL.

Ferrell v. Head.

Nos. S01A0840, S01X0842.

Supreme Court of Georgia.

October 22, 2001.

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

Daniel Beck, Cambridge, MA, Mark E. Olive, Tallahassee, FL, for appellee.

Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Jane E. Fahey, Atlanta, Rogers & Hardin, C.B. Rogers & Hardin, C.B. Rogers, Atlanta, Sutherland, Asbill & Brennan, John A. Chandler, Atlanta, Doffermyre, Shields, Canfield, Knowles & Devine, Ralph I. Knowles, Miles J. Alexander, Atlanta, amici curiae. CARLEY, Justice.

In 1988, Eric Lynn Ferrell was found guilty of murdering his 72-year-old grandmother and his 15-year-old cousin and was sentenced to death for each of those murders. He was also found guilty of armed robbery and possession of a firearm by a convicted felon. This Court unanimously affirmed his convictions and sentences in 1991. Ferrell v. State, 261 Ga. 115, 401 S.E.2d 741 (1991). Ferrell filed a petition for writ of habeas corpus on July 19, 1995, and an evidentiary hearing was held on July 13, 1999. The habeas court vacated Ferrell's convictions and sentences in an order filed on February 8, 2001. The warden appeals in Case No. S01A0840, and Ferrell cross-appeals in Case No. S01X0842.

I. Factual Background

Ferrell spent the night of December 29, 1987, at the home of his grandmother, Willie Myrt Lowe. Ferrell's cousin, Tony Kilgore, was also staying with Ms. Lowe that night. The next morning, Ferrell returned to his parents' home. He then obtained a ride with a friend to meet with his probation officer so that he could pay a past-due probation fee. Ferrell told the friend that he would be able to pay for the gasoline for the trip because he had recently received $900 in compensation from Rockdale County for wrongful detention and because he had a zippered pouch full of rolled coins. Ferrell paid his past-due probation fee, bought a six-pack of beer for his friend and himself, and then called home. A neighbor answered his home phone and informed Ferrell that his grandmother was "kinda sick." Ferrell, however, told his friend that he had been informed that someone had hurt his grandmother. Ferrell speculated to the friend that the mafia might have hurt his grandmother in retaliation for a killing recently committed by his uncle.

Ferrell arrived at the scene of the crime, where the bodies of his grandmother and cousin had been discovered. Each had been killed by two small caliber gunshots to the head, and a large store of cash and rolled coins, which Ms. Lowe generally kept in her home, were found to be missing. Ferrell caused a disturbance, demanding to see or be told what had happened to his grandmother, but he was prevented from entering the crime scene. He and other relatives gave witness statements at the police station. Ferrell claimed that he had left his grandmother's house that morning, but he noted nothing unusual other than two hang-up telephone calls and some noises the night before and the presence of a blue car in front of the house as he left in the morning. When Ferrell was questioned again later that day, detectives learned that he was on probation for forgery and that he had been arrested for an unrelated murder. For safety reasons, the detectives asked Ferrell what he had in his pockets, and Ferrell produced a large wad of money totaling over $500, which the detectives returned to him. Ferrell gave the detectives an explanation of how he had received the money that was belied by the detectives' later investigation.

A search of Ferrell's bedroom disclosed a.22 caliber handgun that was shown at trial to be the murder weapon and all but four unspent shells from two boxes of fifty .22 caliber shells that were shown at trial to match the four bullets recovered from the victims' bodies. In a search incident to his arrest, four .22 caliber shell casings, which matched the ammunition found in his bedroom and which bore markings consistent with their having been fired by the murder weapon, were discovered in Ferrell's back pocket.

Ferrell asked to speak with detectives after his arrest and the discovery of the spent.22 caliber shells in his pocket. At that time and in his later guilt/innocence phase testimony, Ferrell gave the following account of the murders. Two unknown men confronted Ferrell, as he was leaving his grandmother's house, and demanded to see his uncle, who had killed a man six days earlier. When the men pushed their way into the house, Ferrell pulled out his .22 caliber handgun. The men forced him to drop his handgun by pulling out their own .38 caliber handgun and sawed-off shotgun. The two men searched the house, murdered Ferrell's grandmother and cousin with Ferrell's .22 caliber handgun, threw the still-loaded weapon on the bed next to the victims, put a large sum of money in Ferrell's pocket, told him to bring his uncle to them, and left the house. The jury rejected this account of the crimes by its verdicts.

II. Claims Barred as Res Judicata

The habeas court correctly declined to address the merits of claims previously rejected by this Court in Ferrell's direct appeal. "[A]ny issue raised and ruled upon in the petitioner's direct appeal may not be reasserted in habeas corpus proceedings...." Gaither v. Gibby, 267 Ga. 96, 97(2), 475 S.E.2d 603 (1996). Therefore, with the exceptions set forth below, this Court will not again address the merits of the following claims to the extent that they were raised in Ferrell's direct appeal: alleged ineffective assistance of trial counsel; alleged conflict of interest of trial counsel; and allegedly improper argument regarding victim impact and victim worth.

III. Claims Barred by Procedural Default

Claims, other than those regarding sentencing phase jury instructions in death penalty trials, that are raised for the first time in habeas corpus proceedings that could have been raised at trial or on direct appeal are barred by procedural default unless the petitioner can meet the "cause and prejudice" test. Turpin v. Todd, 268 Ga. 820, 824(2)(a), 493 S.E.2d 900 (1997); Black v. Hardin, 255 Ga. 239, 240(4), 336 S.E.2d 754 (1985); OCGA § 9-14-48(d). Compare Stynchcombe v. Floyd, 252 Ga. 113, 114-115, 311 S.E.2d 828 (1984) (addressing sentencing phase jury instructions in death penalty cases). The only circumstance where the "cause and prejudice" test is not applied is where granting habeas corpus relief is necessary to avoid a "miscarriage of justice," and an extremely high standard applies in such cases. See Valenzuela v. Newsome, 253 Ga. 793, 796(4), 325 S.E.2d 370 (1985). To show "cause" under the "cause and prejudice" test, a petitioner ordinarily must show that some factor external to the defense impeded counsel's efforts to raise the claim at trial or on direct appeal. Turpin v. Mobley, 269 Ga. 635, 637(2), 502 S.E.2d 458 (1998). However, this Court has held that ineffective assistance of counsel in waiving an issue at trial or omitting an issue on appeal can also satisfy the "cause" requirement of the "cause and prejudice" test. Turpin v. Todd, supra at 826(2)(a), 493 S.E.2d 900. This Court has further held that a petitioner who has shown sufficient "prejudice" under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to support a claim of ineffective assistance of counsel in waiving a claim at trial or omitting a claim on appeal has also shown sufficient "prejudice" under the "cause and prejudice" test applied to procedurally defaulted claims. Turpin v. Todd, supra at 829(2), 493 S.E.2d 900.

The following claims in Ferrell's cross-appeal are barred by procedural default: allegedly improper denial of funds for investigatory assistance in preparing the motion for new trial; alleged error by the trial court in requiring the defense to file a brief on the motion for new trial two weeks prior to the hearing on that motion; alleged violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); alleged error by the trial court in locking the doors to the courtroom during portions of the trial; alleged error by the trial court in allowing the testimony of Tony Hinton; alleged defects and racial bias in the trial transcript; alleged error in the trial court's charge on reasonable doubt during the guilt/innocence phase; alleged trial court error in allowing evidence of Ferrell's allegedly involuntary guilty pleas to four counts of forgery; alleged racial discrimination in the prosecutor's decision to seek the death penalty (alleged racial bias in the prosecutor's decision to seek the death penalty as part of an alleged pattern and practice of discrimination inherent in Georgia's application of its death penalty laws was raised on direct appeal, but was rejected by this Court); alleged constructive absence of Ferrell from his trial proceedings after a shaking and crying episode; alleged invalidity of the indictment based on grand jury selection procedures; alleged unconstitutionality of the Unified Appeal Procedure; and various other claims. Applying the law set forth above, we conclude that Ferrell has failed to show sufficient reason to set aside the bar to any of these claims.

IV. Sentencing Phase Jury Charges

Claims regarding sentencing phase jury charges in a death penalty case are never barred by procedural default. See Tucker v. Kemp, 256 Ga. 571, 573-574, 351 S.E.2d 196 (1987); Stynchcombe v. Floyd, supra at 114-115, 311 S.E.2d 828.

(A) "The use of the phrase `moral and reasonable certainty' in a charge which, on the whole, repeatedly and accurately conveys the concept of reasonable doubt does not constitute reversible error." Wayne v. State, 269 Ga. 36, 40(7), 495 S.E.2d 34 (1998). See also Baldwin v. State, 264 Ga. 664, 664-666(1), 449 S.E.2d 853 (1994). We hold that the sentencing phase...