Head v. Thomason

• Decision Date: 24 March 2003
• Docket Number: No. S02X1516., No. S02A1515
• Citation: 578 S.E.2d 426,276 Ga. 434
• Parties: HEAD, Warden, v. THOMASON. Thomason v. Head, Warden.
• Court: Georgia Supreme Court

578 S.E.2d 426
276 Ga. 434

HEAD, Warden,
v.
THOMASON.
Thomason
v.
Head, Warden

Nos. S02A1515, S02X1516.

Supreme Court of Georgia.

March 24, 2003.

Reconsideration Denied April 10, 2003.

578 S.E.2d 428

Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Paige R. Whitaker, Patricia A. Burton, Mitchell P. Watkins, Asst. Attys. Gen., for appellant

Thomas H. Dunn, Feinberg & Kamholtz, Matthew Feinberg, Matthew Kamholtz, for appellee.

578 S.E.2d 427

BENHAM, Justice

Gary Chad Thomason is a burglar who shot and killed the homeowner who came upon him while he was burglarizing the victim's home. In a bench trial, he was convicted of malice murder, burglary, and possession of a firearm by a convicted felon, and was sentenced to death. After affirmance by this Court of that conviction and sentence (Thomason v. State, 268 Ga. 298, 486 S.E.2d 861 (1997)), he filed a petition for a writ of habeas corpus. His petition was denied on all grounds save one — that he was not afforded the effective assistance of counsel during the sentencing phase of his bench trial because trial counsel failed to investigate Thomason's background [276 Ga. 435] adequately and failed to present an effective case in mitigation. As a result of the determination that Thomason received ineffective assistance of counsel during the sentencing phase, the habeas court ordered a new sentencing trial. The warden appeals that ruling in Case No. S02A1515, and Thomason cross-appeals in Case No. S02X1516 the habeas court's rejection of his other claims of constitutional error.

Case No. S02A1515

1. In granting relief, the habeas court noted that the mitigation evidence offered at trial consisted only of Thomason's profession of remorse, his lack of violent tendencies, testimony that he was easily influenced and was always with someone else when he got in trouble, and his mother's mention of his hospitalization at Charter Peachford Hospital for marijuana usage. The habeas court then chronicled the mitigation evidence trial counsel had and did not use¹ and the mitigation

578 S.E.2d 429

evidence trial counsel did not have but which was "readily obtainable through reasonable diligence."² The habeas court noted that trial counsel had testified at the hearing that the background information was not used or pursued because they believed it could not be used effectively without an expert and the trial court had denied their request for additional funding for a psychological evaluation. The habeas court found that counsel had not been reasonably diligent in their pursuit of expert assistance, had substantially abandoned Thomason's mitigation case, had unreasonably failed to make [276 Ga. 436] use of considerable information in counsel's possession, made no effort to secure other information readily available, and made no effort to pursue alternative possibilities for securing assistance from the psychiatrist who examined Thomason. Based on those findings, the habeas court found counsel's performance deficient, and further concluded that there was a reasonable probability that the death penalty would not have been imposed if counsel had effectively utilized the available information and resources.

A habeas court's determination on a claim of ineffective assistance of counsel is to be affirmed unless the reviewing court concludes the habeas court's factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. See Head v. Carr, 273 Ga. 613, 616, 544 S.E.2d 409 (2001). Review of the record in this case persuades us that there is evidence to support the trial court's findings and that they are not, therefore, clearly erroneous. It remains our task to consider whether those facts support the legal conclusion that counsel were ineffective and that the ineffectiveness prejudiced Thomason. Id.

Mitigating evidence, "anything that might persuade the jury to impose a sentence less than death," (Head v. Ferrell, 274 Ga. 399, 405, 554 S.E.2d 155 (2001)), is critical in the sentencing phase of a death penalty trial since "the [jury] may withhold [imposition of] the death penalty for any reason, or without any reason." Smith v. Francis, 253 Ga. 782, 787, 325 S.E.2d 362 (1985). We have recognized the importance of mitigating evidence by holding that the permissible scope of such evidence is wide (Barnes v. State, 269 Ga. 345(27), 496 S.E.2d 674 (1998)), and by noting that evidentiary rules are relaxed during the sentencing phase. Smith v. State, 270 Ga. 240(12), 510 S.E.2d 1 (1998). The test for finding deficient performance of an attorney who is claimed to have been ineffective with regard to mitigating evidence is whether a reasonable lawyer would have acted the way defense counsel did. Head v. Carr, supra, 273 Ga. at 616, 544 S.E.2d 409. An attorney's failure to have a mental health expert review medical records for mitigating evidence can be unreasonable conduct. Turpin v. Lipham, 270 Ga. 208, 216, 510 S.E.2d 32 (1998). In the case at bar, defense counsel knew of two mental health experts who had spent time with Thomason — one a clinical psychologist who testified at the defendant's

578 S.E.2d 430

competency hearing that the defendant has an IQ of 77, and the other a psychiatrist who interviewed the defendant, who told defense counsel he saw in the defendant indications of intellectual impairment, low self-esteem, and depression, to whom defense counsel offered the defendant's school, medical, and institutional records as well as information about the crime for a forensic evaluation, but to whom the attorney never gave the offered material. In addition to failing to follow through on his promise to give the requested material [276 Ga. 437] to the psychiatrist, defense counsel called neither expert to present evidence in mitigation — and then presented none of the mitigating evidence the defense had amassed because counsel did not know how to do it without an expert.

Trial counsel recognized the need for expert testimony, yet failed to have the expert who had already conducted an interview with the defendant execute an affidavit for use in securing additional funding for the expert. Instead, trial counsel asked the expert for a letter breaking down the cost of a full forensic psychiatric evaluation of Thomason. The expert's letter apparently served as the basis for trial counsel's request for an additional 25,000 for mental health expert assistance. When trial counsel's efforts to obtain the additional funding were rejected by the trial court, trial counsel never contacted the expert again. In an affidavit submitted at the habeas hearing and relied on by the habeas court, the expert stated he would have worked with counsel without further funding or for a figure significantly less than that set forth in his letter had that been necessary. The expert noted he could have reduced the cost by utilizing defense team members to conduct interviews rather than conducting them himself and, had he had the materials provided to him by habeas counsel, he would have been able to assist in providing evidence in mitigation. However, trial counsel never contacted the expert again once the request for additional funding was denied. We conclude, given the importance of mitigating evidence in death penalty cases, that an attorney has not acted reasonably when he fails to call mental health experts he knows have mitigating evidence and explains his failure to present lay mitigating evidence by asserting that he had no experts to call.

It is likely that trial counsel's guard was down at the sentencing phase due to counsel's belief that the trial judge who presided over the bench trial would not impose a death sentence.³ While we agree with the habeas court's determination that trial counsel's advice to Thomason to waive his right to a jury trial based on counsel's erroneous assumptions about the trial judge did not alone amount to ineffective assistance of counsel, we conclude that counsel's erroneous [276 Ga. 438] assumptions and the concomitant feeling of assuredness caused counsel to be less diligent in preparing for the sentencing phase than they would have had they believed they were dealing with a factfinder who might impose the death penalty.

These circumstances, coupled with counsel's failure to make use of the mitigating evidence and the experts they had, persuade us that the habeas court was correct in its conclusion that there is a reasonable probability that the presentation of the mitigating evidence presented at the habeas hearing would have changed the outcome of the sentencing phase of Thomason's trial. See Head v. Carr, supra, 273 Ga. at 626, 544 S.E.2d 409. Accordingly, we affirm the grant of a new sentencing trial.

Case No. S02X1516

2. In any case in which doubt arises concerning this Court's jurisdiction, we have a duty to address that question. Powell v. City of Snellville, 275 Ga. 207(1), 563 S.E.2d 860 (2002). In the present case, the

578 S.E.2d 431

dissent asserts that the cross-appeal should be dismissed because Thomason did not file his notice of cross-appeal within 15 days of the service on him of the notice of appeal as is required by OCGA § 5-6-38. In fact, Thomason filed his notice of cross-appeal 17 days after service by mail of the warden's notice of appeal.

The dissent is correct in noting that OCGA § 9-14-52 (a) provides that appeals in habeas corpus cases shall be governed by the Appellate Practice Act, OCGA § 5-6-30 et seq. However, that provision only means that appeals in habeas corpus cases, once begun, are to be handled in the same way as other civil appeals. The Appellate Practice Act does not provide for every single act involved in an appeal. Because there is no provision in the Appellate Practice Act for computing time limits, the Court of Appeals has at least twice found it necessary to supplement the provisions of the Appellate Practice Act by reference to OCGA § 9-11-6...