Head v. Taylor, S00A0908.

• Decision Date: 30 October 2000
• Docket Number: No. S00A0908.,S00A0908.
• Citation: 538 S.E.2d 416,273 Ga. 69
• Parties: HEAD v. TAYLOR.
• Court: Georgia Supreme Court

538 S.E.2d 416

273 Ga. 69

HEAD v. TAYLOR.

No. S00A0908.

Supreme Court of Georgia.

October 30, 2000.

Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Patricia B. Burton, Assistant Attorney General, for appellant.

Troutman Sanders, Robert P. Edwards, Jr., Atlanta, for appellee. HINES, Justice.

Keith Brian Taylor killed his wife on January 12, 1989, by stabbing and slashing her with a knife. A jury convicted him of murder and recommended a death sentence, and this Court affirmed the conviction and sentence. Taylor v. State, 261 Ga. 287, 404 S.E.2d 255 (1991). The United States Supreme Court denied certiorari. Taylor v. Georgia, 502 U.S. 947, 112 S.Ct. 393, 116 L.Ed.2d 343 (1991). Taylor filed a petition for a writ of habeas corpus on December 20, 1995, and amended the petition on November 21, 1997. After an evidentiary hearing, the habeas court granted the writ and vacated Taylor's conviction and sentence due to ineffective assistance of counsel. The warden appeals this decision. We affirm.

Claims That Are Barred

1. Claims that were previously raised and resolved on direct appeal are barred from review on habeas corpus because "[a]fter an appellate review the same issues will not be reviewed on habeas corpus." Elrod v. Ault, 231 Ga. 750, 204 S.E.2d 176 (1974); 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 found that the following claims in Taylor's habeas petition were raised and decided on direct appeal: the trial court's alleged failure to appoint a qualified medical expert to evaluate Taylor's sanity before trial in accordance with OCGA § 17-7-130, Taylor, 261 Ga. at 289-290(1), 404 S.E.2d 255; an alleged improper reference to appellate review by the State during guilt-innocence phase closing argument, id. at 294(9), 404 S.E.2d 255; the alleged improper sentencing phase jury charge, id. at 295-297(10), (11), (12), (14), and (15), 404 S.E.2d 255; an alleged error for failing to excuse for cause jurors Whitaker and Turner for bias in favor of the death penalty, id. at 291-292(5), 404 S.E.2d 255; and the alleged failure by the trial court to hold a hearing on Taylor's motion for a change of venue, id. at 291(4), 404 S.E.2d 255. Since these claims have already been addressed on direct appeal, they are barred from habeas corpus review. Gaither, supra.

Claims That Are Defaulted

2. The failure to raise an issue on direct appeal that could have been raised at that time defaults that issue on habeas corpus, unless the habeas petitioner 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). Taylor raises the following claims for the first time on habeas corpus: improper comments by the prosecutor during his opening statement; improper closing argument by the prosecutor (other than the alleged reference to appellate review) in the guilt-innocence phase of the trial; improper State argument in the penalty phase; possible juror misconduct; improper jury instructions in the guilt-innocence phase; improper conduct by the trial court during voir dire; the trial court's failure to excuse for cause jurors other than jurors Whitaker and Turner due to bias in favor of the death penalty; the trial court's failure to provide funds for a psychiatrist and a mitigation specialist; the violation of the Unified Appeal Procedure; the constitutionality of Georgia's death penalty statute; and that execution by electrocution is cruel and unusual. The habeas court correctly found that these alleged errors are procedurally defaulted because they could have been raised earlier and Taylor failed to demonstrate that an objective, external factor impeded defense counsel's ability to raise these errors on direct appeal or that his trial was infected with error of constitutional dimensions. See Turpin v. Todd, 268 Ga. 820, 825-828, 493 S.E.2d 900 (1997) (explaining cause and prejudice test for overcoming habeas corpus procedural default). The habeas court also considered several of these claims on their merits and found them to be unsupported by the trial record. The habeas court further found that Taylor's claim of cumulative error was without merit because Georgia does not recognize the cumulative error rule. Laney v. State, 271 Ga. 194(11), 515 S.E.2d 610 (1999). We find no error with the habeas court's rulings on these claims.

Ineffective Assistance of Counsel

3. Taylor's claim of ineffective assistance of counsel is neither barred nor defaulted because such 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). Taylor's trial counsel represented him through his direct appeal and new counsel began representing him on habeas corpus after trial counsel ceased their representation. Since ineffective assistance of trial counsel was raised at the first available opportunity after new counsel came onto the case, it remains a viable claim on habeas corpus. See id.

In order to prevail on a claim of ineffective assistance of counsel, Taylor 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, 783(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 resorting to hindsight. Strickland, supra at 689-690, 104 S.Ct. 2052; Smith, supra. Taylor'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, Taylor 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. A claim of ineffective assistance is a mixed question of law and fact. Strickland, supra at 698, 104 S.Ct. 2052; Lajara v. State, 263 Ga. 438(3), 435 S.E.2d 600 (1993). On appeal, we accept the habeas court's factual findings unless clearly erroneous, but we independently apply the relevant legal principles to the facts. Linares v. State, 266 Ga. 812(2), 471 S.E.2d 208 (1996).

The circumstances of the homicide clearly show that Taylor killed his wife, Lori Taylor. See Taylor, 261 Ga. at 287-288, 404 S.E.2d 255. After Lori took out a "good behavior" warrant to have him removed from their apartment, Taylor and his wife were alone in the apartment. From outside, Lori's cousin heard her say, "Keith, don't do it." A police officer knocked on the apartment door a few minutes later and Taylor answered "dripping" with blood. Taylor said, "take me to jail" and he was placed in a patrol car. Lori was found lying on the floor dying from multiple stab and slash wounds. A bloody knife, identified by Taylor's son as belonging to Taylor, was found hidden inside a closet. Taylor has a long history of mental illness that trial counsel attempted to use in his defense in both phases of his trial. The State countered with evidence that Taylor may have been malingering by exaggerating his mental problems. In the final order vacating Taylor's conviction and sentence, the habeas court identified several areas where trial counsel was ineffective. Before these areas can be discussed, it is necessary for us to recite Taylor's background, the circumstances leading up to trial, and the evidence presented at trial.

Taylor's Background

Trial counsel subpoenaed records from the many hospitals that had treated Taylor and they spoke with Taylor and his mother. In addition to the diagnoses and treatments, the records contained a family and work history. Based on these sources, trial counsel knew the following: Taylor was born in 1954 and raised in Miami as one of ten children. He has one brother who is schizophrenic and a sister who is mentally retarded. His school history shows some difficulties and expulsions, but he managed to obtain a high school diploma and attend some college classes. He was married three times, but none of the marriages lasted. In 1975, he enlisted in the Army and was trained as a computer operator. In 1977, he married Lori Taylor and they had two children. He reached the rank of staff sergeant, but in 1980 his military career began to deteriorate. The records reveal a nervous breakdown in 1980 that resulted in extended treatment in a mental hospital. The diagnosis from this hospitalization was adjustment disorder. The records also note paranoia and substance abuse. Also, he was twice treated at mental hospitals while stationed in Germany in 1983 and 1984. Much of his paranoia centered around his wife, who he said he did not trust; he was also upset about her conversion to the Jehovah's Witness faith. He was discharged from the Army in 1984.

After his discharge, Taylor continued to have significant mental health problems and he was repeatedly treated for these problems. Diagnoses included chronic paranoia, mixed personality disorder, depression, substance abuse, suicidal ideation, and schizophrenia. He was frequently treated with anti-psychotic...