Humphrey v. Morrow

• Decision Date: 17 October 2011
• Docket Number: Nos. S11A0937,S11X0938.,s. S11A0937
• Citation: 11 FCDR 3180,717 S.E.2d 168,289 Ga. 864
• Parties: HUMPHREY v. MORROW.Morrow v. Humphrey.
• Court: Georgia Supreme Court

11 FCDR 3180

289 Ga. 864

717 S.E.2d 168

HUMPHREY

v.MORROW.Morrow

v.Humphrey.

Nos. S11A0937

S11X0938.

Supreme Court of Georgia.

Oct. 17, 2011.

Samuel S. Olens, Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Patricia A. Burton, Sr. Asst. Atty. Gen., Lyndsey J. Hurst, Sabrina D. Graham, Asst. Attys. Gen., for appellant.

Brian Kammer, Thomas Howard Dunn, Atlanta, Marc F. Holzapfel, Glen Ridge, NJ, for appellee.

THOMPSON, Justice.

A jury convicted Scotty Garnell Morrow of the murders of Barbara Ann Young and Tonya Rochelle Woods, of the aggravated battery of LaToya Horne, and of related crimes. The crimes all occurred on December 29, 1994. Morrow was sentenced to death and to several terms of imprisonment, and this Court affirmed his convictions and sentences on June 12, 2000. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000). Morrow filed a petition for a writ of habeas corpus on October 30, 2001, which he amended on February 3, 2005. An evidentiary hearing was held on April 25 and 26, 2005. In an order filed on February 4, 2011,¹ the habeas court vacated Morrow's death sentence based on the alleged ineffective assistance of Morrow's trial counsel in the sentencing phase of Morrow's trial, but the habeas court refused to disturb Morrow's convictions. In Case Number S11A0937, the Warden has appealed the vacating of Morrow's death sentence, and Morrow has cross-appealed in Case Number S11X0938. In the Warden's appeal, we reverse and reinstate Morrow's death sentence. In Morrow's cross-appeal, we affirm.

I. Factual Background

The evidence at Morrow's trial showed that Morrow dated and lived with Barbara Ann Young but that, beginning at least by early December of 1994, Ms. Young was beginning to lose interest in Morrow. On December 6, Morrow slapped Ms. Young and dragged her by her arm in her own home. On December 9, Morrow was giving a ride to Ms. Young, but he refused to drop her at the college that she was attending and, instead, beat her and raped her twice. After this incident, Ms. Young made Morrow move out of her home. On December 24, Ms. Young fled her home, where Morrow had been visiting, and ran to a neighboring home seeking refuge and saying that Morrow was going to kill her.

Finally, on December 29, 1994, Tonya Woods and LaToya Horne were visiting Ms. Young, and two of Ms. Young's children were also present in the home as witnesses to the events that transpired there. Morrow and Ms. Young argued over the telephone. Later, Morrow entered Ms. Young's home, stood at the entrance to the kitchen, argued with Ms. Woods, and began shooting the nine-millimeter handgun he had brought. Morrow shot Ms. Woods in her abdomen, severing her spine and paralyzing her, and Ms. Woods fell backwards to the floor over a chair. Morrow then shot Ms. Horne in her arm, and he also possibly fired at Ms. Young as she fled from the kitchen. Morrow pursued Ms. Young down a hallway and kicked open her bedroom door. Morrow and Ms. Young struggled in the bedroom. A shot was fired inside the bedroom, likely injuring Ms. Young's back from the action of the gun and burning Ms. Young's hand. The bullet passed through the closed bedroom door and into the ceiling in the hallway outside. Ms. Young fled the bedroom, but Morrow pursued her into the hallway. Morrow likely smashed her head into the bedroom's doorframe, leaving behind skin, hair, and blood. Morrow then grabbed her by her hair as she lay on the floor, and he fired a fatal shot into her head above her right ear. This fatal shot was likely fired as she attempted to shield her head with her left hand, which was shot through the palm. Morrow then returned to the kitchen, where he either cleared a jam in the gun or reloaded it. He fired a fatal shot under Ms. Woods' chin and into her head at close range, and he shot Ms. Horne in the face and arm. Morrow left the home, cut the telephone line outside, and then fled. Ms. Young and Ms. Woods died of their wounds. Ms. Horne was badly injured, but she managed to walk from house to house down the street seeking someone to call for help before she eventually collapsed; she survived, but with permanent injuries, including deafness in one ear.

II. Alleged Ineffective Assistance of Counsel

The habeas court concluded that Morrow's trial counsel rendered ineffective assistance in their preparation for and performance in the sentencing phase of Morrow's trial but not in the guilt/innocence phase. In order to prevail on an ineffective assistance of counsel claim, a petitioner must show that his trial counsel rendered constitutionally-deficient performance and that actual prejudice of constitutional proportions resulted. 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, 783–784(1), 325 S.E.2d 362 (1985). See also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (applying Strickland, 466 U.S. 668, 104 S.Ct. 2052); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same). We adopt the habeas court's findings of fact unless they are clearly erroneous, but we apply the facts to the law de novo in determining whether trial counsel performed deficiently and whether any deficiency was prejudicial. See Strickland, 466 U.S. at 698(IV), 104 S.Ct. 2052; Head v. Carr, 273 Ga. 613, 616(4), 544 S.E.2d 409 (2001). Trial counsel are “strongly presumed” to have performed adequately; therefore, a petitioner bears the burden to prove otherwise. Strickland, 466 U.S. at 690(III)(A), 104 S.Ct. 2052. In assessing the degree to which counsel's deficiencies might have prejudiced a petitioner's defense, we consider the cumulative effect of all of trial counsel's deficiencies within the context of everything that occurred at trial. See Schofield v. Holsey, 281 Ga. 809, 812 n. 1, 642 S.E.2d 56 (2007) (holding that the combined effect of trial counsel's various professional deficiencies should be considered). In the interest of judicial efficiency, this Court may simply assume certain alleged deficiencies to have existed and then weigh any prejudice that might have resulted in the final analysis of prejudice arising from counsel's deficiencies. Lajara v. State, 263 Ga. 438, 440–441(3), 435 S.E.2d 600 (1993) (noting that an appellate court need not address whether counsel was deficient if the claim can be rejected based on a lack of prejudice).

To show sufficient prejudice to warrant relief, a petitioner must show 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 [cit.].” Smith, 253 Ga. at 783(1), 325 S.E.2d 362. The Warden incorrectly argues that the prejudice standard applied by the habeas court in Morrow's case was erroneous. Under Georgia's death penalty laws, which provide for an automatic sentence less than death if the jury is unable to reach a unanimous sentencing verdict, a reasonable probability of a different outcome exists where “there is a reasonable probability that at least one juror would have struck a different balance” in his or her final vote regarding sentencing following extensive deliberation among the jurors. Wiggins, 539 U.S. at 537(III), 123 S.Ct. 2527. See OCGA § 17–10–30 (providing, both before and after being amended in 2009, that a sentence of death may only be imposed upon a jury's verdict recommending one).

For the reasons discussed below and upon our plenary review of the trial and habeas court records, we conclude that trial counsel generally performed adequately and that the absence of trial counsel's professional deficiencies, both those we find to have existed and those we assume to have existed, would not in reasonable probability have resulted in a different outcome in either phase of Morrow's trial.

A. Actual Preparation and Performance1. Preparation of Evidence

We begin our analysis of the assistance trial counsel rendered by summarizing their pre-trial preparations. Counsel focused much of their efforts on supporting a possible defense theory that was based on the allegedly-spontaneous nature of the murders, and they attempted to prepare evidence of Morrow's background and mental state that would support their theory that he had acted impulsively and out of character. Counsel testified that they believed that the “domestic circumstances of the case” could possibly support a verdict of voluntary manslaughter, and they pressed the State to consider a plea bargain to life without parole based on this characterization of the murders.

Trial counsel met repeatedly with Morrow, his mother, and his sister, and the record makes clear that counsel discussed Morrow's childhood background with them extensively, despite the fact that counsel believed that a sound strategy would be to focus on Morrow's character as an adult. Counsel found Morrow's sister to be a more-reliable source of information than his mother. Contrary to Morrow's argument, it is simply not correct that trial counsel ignored information from the years during Morrow's childhood when he lived in New York and New Jersey, although we acknowledge that they relied heavily on Morrow, his mother, and his sister to provide information about that portion of Morrow's life. Counsel testified that they also contacted jail staff, Morrow's former co-workers, and numerous other potential witnesses. Counsel obtained funds for a private investigator, and counsel testified that they closely monitored the investigator's progress and that the investigator “concentrated about 65 percent of his efforts on mitigation witnesses.” The investigator testified that he was relatively inexperienced in mitigation investigations; however, we note that trial counsel retained ultimate responsibility for the defense strategy.

Counsel had Morrow examined by a psychiatrist. The psychiatrist's report stated that...