Head v. Stripling

• Decision Date: 14 October 2003
• Docket Number: No. S03A0525.,S03A0525.
• Citation: 277 Ga. 403,590 S.E.2d 122
• Parties: HEAD v. STRIPLING.
• Court: Georgia Supreme Court

590 S.E.2d 122

277 Ga. 403

HEAD v. STRIPLING.

No. S03A0525.

Supreme Court of Georgia.

October 14, 2003.

Reconsideration Denied November 26, 2003.

Hon. Thurbert E. Baker, Atty. Gen., Karen Anderson Johnson, Asst. Atty. Gen., James David McDade, Dist. Atty., for appellant.

Diane Green Kelly, Mitchell D. Raup, David M. Gossett, Carl John Summers, Chicago, IL, for appellees.

James C. Bonner, Jr., Sarah L. Gerwig, Michael M. Mears, Holly Lynn Geerdes, Multi-County Public Defender, Hon. Richard Weber, Jr., American Civil Liberties Union, John Richard Martin, Nicholas A. Lotito, Atlanta, amicus appellee.

HUNSTEIN, Justice.

In October 1988 Alphonso Stripling shot four of his fellow employees at a Kentucky Fried Chicken restaurant during an armed robbery. Two of his victims died. He then carjacked a getaway car at gunpoint from the parking lot of a nearby restaurant and crashed it while being chased by the police. At his 1989 trial, Stripling's counsel presented evidence of mental illness and mental retardation. The jury, while convicting Stripling of the crimes arising out of the KFC robbery, did not find him guilty but mentally ill or guilty but mentally retarded. The jury recommended a death sentence. This Court affirmed. Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991).

Stripling filed a petition for a writ of habeas corpus. After an evidentiary hearing in April 2002, the habeas court vacated Stripling's death sentence finding that the State had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing evidence supporting his claim of mental retardation. Warden Frederick Head appeals that ruling, along with the habeas court's other rulings, including that Stripling be sentenced to a non-capital sentence based on a finding that his death sentence was a miscarriage of justice because he is mentally retarded; that OCGA § 17-7-131 is unconstitutional to the extent that it requires a defendant to prove his mental retardation beyond a reasonable doubt in the guilt-innocence phase of a death penalty trial; and that Stripling received ineffective assistance of trial counsel. For the reasons set forth below, we affirm the habeas court's ruling on Stripling's Brady claim and order that he be retried on mental retardation and sentence.

1. The habeas court correctly ruled that the State violated Brady by suppressing parole records that contained material, exculpatory evidence regarding Stripling's mental retardation. According to trial counsel, Stripling's death penalty trial may have been the first where guilty but mentally retarded was a potential verdict. OCGA § 17-7-131 had only been enacted the previous year, and Georgia was the first state to forbid the execution of those criminals found to be mentally retarded.¹ In preparation for Stripling's trial, defense counsel researched mental retardation and Stripling's background. Defense counsel also sought to obtain Stripling's parole file because they believed there might be important evidence contained therein. "Records in the possession of the State Board of Pardons and Paroles are confidential. OCGA § 42-9-53." Stripling, supra, 261 Ga. at 6(7), 401 S.E.2d 500. Pursuant to this Court's holding in Pope v. State, 256 Ga. 195(22), 345 S.E.2d 831 (1986) (policy reasons for preserving the secrecy of parole files must give way to capital defendant's need to uncover and present mitigating evidence), the trial court in Stripling's case received the parole file and evaluated it in camera. The trial court then informed the parties that there was relevant evidence in the parole file but that it was cumulative to the testimony of Stripling's psychiatrist, who had testified in the competency trial that had preceded the death penalty trial. The trial court did not release the parole file and neither the prosecutor nor Stripling's counsel saw its contents.

At trial, defense counsel adduced evidence before the jury that Stripling had achieved mostly D's and F's before leaving high school at age 16, and his mother testified that he had been a slow learner and had few friends as a child. A psychiatrist and a psychologist hired by the defense evaluated Stripling for mental retardation and mental illness. The psychologist administered an IQ test to Stripling, who scored a 64. The defense mental health experts also testified about deficits in adaptive behavior, such as his limited ability to read and write, and opined that he is mentally retarded. Because Stripling had been incarcerated twice previously for armed robberies, defense counsel obtained his records from the Department of Corrections, which showed he had scored a 68 on an IQ test in 1974 when he was 17 years old and that his reading and mathematics skills were limited to approximately the third or fourth grade level.

The State countered Stripling's claim of mental retardation by adducing evidence that Stripling had attended school until the tenth grade and dropped out because of his arrest for several armed robberies. Although he did not administer an IQ test, the State's psychologist evaluated Stripling and opined that he has average intelligence. With regard to adaptive behavior, the State presented evidence that Stripling held several jobs, had a driver's license, and knew how to drive a car with a manual transmission. Neither of the surviving KFC employees thought that he had seemed slow or had difficulty learning to operate the various machines for marinating and cooking chicken.² Stripling had participated in bank robberies in 1979 and 1980 that showed some degree of planning. His Department of Corrections records indicated that he had taken vocational training classes in prison and performed satisfactorily. There were several references in the prison records to his having a "rather low level of intellectual functioning," but these references were offset by written comments about his low motivation to perform better and by other comments that Stripling has a normal level of intelligence. Of primary importance to the State was a Culture Fair IQ test also taken in prison that showed a score of 111. Neither of Stripling's experts was familiar with the Culture Fair test, and the State argued that this above-average score was more indicative of Stripling's intelligence. His prison and school records did not indicate he was mentally retarded, despite, as previously mentioned, a Peabody IQ test taken in prison in 1974 that reflected a 68 IQ. The prosecutor thus argued that no one had characterized Stripling as mentally retarded until defense experts examined him after the KFC murders when he had a motive to portray himself as mentally retarded.³

In his appeal to this Court, Stripling not only challenged the jury's rejection of a guilty but mentally retarded verdict, he also claimed that the failure to release his parole file was error, despite not knowing what that file contained. This Court disagreed. Stripling, supra, 261 Ga. at 6(7), 401 S.E.2d 500.

More than a decade after Stripling's trial, his habeas counsel was able to secure access to his parole file during habeas corpus litigation. The parole file contains a number of documents that were duplicated in Stripling's DOC prison records. However, the parole file also contains information supporting Stripling's claim of mental retardation that was not available elsewhere. An institutional report from 1974 set forth that Stripling has "serious mental deficiencies." A parole investigator in a 1980 report stated that the Culture Fair IQ score of 111 was "questionable" because Stripling's mother characterized him as "mentally retarded" and an IQ test taken in 1973, which was not referenced in the materials elsewhere available to defense counsel, recorded an IQ score of 67. The investigator described Stripling as having "limited mental ability." An institutional parole supervisor interviewed Stripling in 1974, when Stripling was 17 years old, and reported that he answered questions slowly "due to his mentally retarded condition." The supervisor stated in his concluding remarks that Stripling has limited mental ability and "is mentally retarded."

The parole file thus contained compelling evidence to support Stripling's trial claim of mental retardation. That State officials and his mother had characterized him as mentally retarded in the 1970's would have refuted the prosecutor's claim that the defense had recently concocted his alleged mental retardation. Similarly, a State official describing Stripling's score on the Culture Fair IQ test as "questionable" would have undermined the prosecutor's reliance on this test as direct evidence of his actual intelligence. The parole file also contained another sub-70 IQ score on an IQ test taken when Stripling was 16 years old. All of this evidence would have been especially significant because it predated the KFC murders and was created by State officials.

The trial court did not permit defense counsel to see this file; thus, counsel were not able to argue the benefits and potential effect of using this evidence at trial to support Stripling's mental retardation claim. Counsel could make no specific claims about the file at trial or on appeal. Instead, on appeal Stripling could only argue generally that the failure to allow access to the contents of the file was error. See Pope, supra, 256 Ga. at 212(22), 345 S.E.2d 831; Walker v. State, 254 Ga. 149(4), 327 S.E.2d 475 (1985). This Court noted that the trial court had found "no potentially mitigating evidence in the file not already known to and available to the defendant," Stripling, supra, 261 Ga. at 6(7), 401 S.E.2d 500, and determined that the trial court had not erred. Id. On habeas corpus, after finally obtaining access to the parole file, Stripling made a claim under Brady that the State had suppressed exculpatory evidence in the parole file.⁴ The warden responded that the issue was barred from...