Morrison v. State

• Decision Date: 10 November 1988
• Docket Number: No. 45572,45572
• Parties: MORRISON v. The STATE.
• Court: Georgia Supreme Court

Page 506

373 S.E.2d 506

258 Ga. 683

MORRISON v. The STATE.

No. 45572.

Supreme Court of Georgia.

Nov. 10, 1988.

Percy J. Blount, Glover & Blount, O.L. Collins, Augusta, for Earnest Ulysses Morrison.

Sam B. Sibley, Jr., Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.

CLARKE, Presiding Justice.

On January 9, 1987, Earnest Morrison raped and murdered the wife of his uncle by marriage (his uncle's first wife was Morrison's aunt). Morrison, a drifter, had stayed with the couple for a few days until his uncle told him he would have to get a job or leave. The day he was supposed to leave he waited until the uncle left for work and then attacked the wife. According to Morrison, he was going to tie her up with duct tape and rape her, but she struggled so hard and was so strong that he wound up killing her. He took her car and some valuables and went to Tennessee, where he was arrested. ¹

Morrison previously had committed a similar crime in South Carolina, except that the victim was not killed: He was staying with a couple; the husband told Morrison that he would have to get a job or leave; when he went to work, Morrison tied up the wife with duct tape, raped her, and stole her car and some valuables.

Morrison was abandoned by his mother soon after birth and spent his childhood in and out of, and running away from, foster homes and juvenile detention centers. According to Dr. Everett Kuglar, one of the two psychiatrists who examined Morrison pursuant to the trial court's order:

[Morrison] learned to fend for himself on the streets, apparently surviving in part by becoming somewhat self-sufficient and maybe taking other people's property. He immediately began to get in trouble with the legal system [from the time he was six years old] and from late teenage on he spent almost all of his time incarcerated at one place or another in the legal system. I think he's probably never had any sort of decent human interaction with anyone over a period of more than a few days. He turned to drugs or probably alcohol, although he indicates it's been mostly drugs, as a way of solving whatever conflicts and problems he had....

Both psychiatrists who evaluated Morrison concluded that he has an anti-social personality and that, given his history, his prospects for rehabilitation are poor.

Attorney O.L. Collins was appointed to represent Morrison. A month before trial, Morrison wrote a letter to the judge in which he admitted his guilt and stated that he had become a Christian. He was afraid that if he was given an opportunity he would "break out and kill again," and he asked the court to give him a death sentence to prevent that from happening.

Morrison also contacted Tennessee authorities about conversations he had with a cellmate in Tennessee while awaiting his return to Georgia. Ultimately, he testified for the state of Tennessee at the former cellmate's murder trial. The chief investigating officer in the Tennessee case testified in this case that Morrison's information and testimony were crucial in obtaining a conviction and death sentence for the cellmate.

After receiving Morrison's request to be executed, the trial judge appointed a second attorney, Percy J. Blount, to assist Collins with the case.

On October 30, 1987, Morrison, represented by Collins and Blount, entered a plea of guilty to murder, rape, armed robbery, theft by taking and escape. The trial court conducted a hearing and accepted the plea. After a non-jury sentencing proceeding, the trial court found the presence of statutory aggravating circumstances, see OCGA § 17-10-30, and sentenced Morrison to death on the murder count.

1. Morrison's appellate brief was filed by attorney Blount, who now contends that Morrison's guilty plea was involuntary because he "had come under the influence of ... attorney [Collins] in some manner in making his decision." We have reviewed the transcript of the plea hearing. The evidence presented at the hearing, including Morrison's own testimony, fully supports the court's determination that the plea of guilty was voluntarily entered. Compare Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Moya v. Estelle, 696 F.2d 329 (5th Cir.1983).

2. Morrison withdrew his motion to suppress, and has waived his right to raise the issue. Compare Curry v. State, 255 Ga. 215(1), 336 S.E.2d 762 (1985). Moreover, we note that he would not have had standing in any event to contest the search of an automobile that he stole. Sanborn v. State, 251 Ga. 169(1), 304 S.E.2d 377 (1983).

3. No evidence was presented by the defense at the sentencing phase of the trial, at Morrison's request. ² Moreover, attorney Collins, stating that his client "has a right to choose and ask for [a death sentence] if he wants to," and that Collins owed his client "the duty as his representative to ... take his side of it," argued in favor of a death sentence. Such an argument is unusual, because criminal defendants usually seek to avoid a death sentence, not to have it imposed. Compare, however, Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). See also, Felde v. Butler, 817 F.2d 281 (5th Cir.1987); People v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (1985).

Although no issue has been raised in this regard on appeal, we are required by law to review the record in a death penalty case and determine whether the death sentence was "imposed under the influence of passion, prejudice or any other arbitrary factor." OCGA § 17-10-35(c)(1).

It has been noted that an attorney is not merely the client's "alter ego" functioning only as the client's "mouthpiece." ABA Standards for Criminal Justice, The Defense Function, Commentary to Standard 4-1.1 at 4-9. The lawyer is an "independent ... professional representative," not an "ordinary agent." Id. Counsel has a duty to investigate and to provide informed legal advice to the client and "first must evaluate potential avenues and advise the client of those offering possible merit." Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986). However, after having been informed, the defendant, and not his attorney, makes the ultimate decision about, for example, what line of defense to pursue, Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983), whether or not to testify in his own behalf, Thompson v. Wainwright, supra at 1452, whether or not to plead guilty, Kemp v. Leggett, 635 F.2d 453, 454 (5th Cir. Unit B, 1981), and whether or not to present witnesses in mitigation, Mitchell v. Kemp, 762 F.2d 886, 889-90 (11th Cir.1985).

A defendant may insist on representing himself. Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). Even if he is represented by an attorney, the attorney "is still only an assistant to the defendant and not the master of the defense." Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir.1985).

We conclude that where a properly-informed, competent defendant insists that he prefers a death sentence to life imprisonment, his attorney does not violate any right of the defendant by attempting "to comply with his client's wishes," Foster v. Strickland, supra, 707 F.2d at 1343, and by arguing to the sentencer in favor of a death sentence. ³

However, although the defendant may have a right to present his personal desires to the court, those desires are not controlling. As the trial court recognized, its responsibilities are much broader than the defendant's own wishes, and the imposition of a death sentence would be authorized only when, as here, the court has satisfied itself (1) that the existence of at least one statutory aggravating circumstance has been proven beyond a reasonable doubt, and (2) considering all the facts and circumstances presented to the court, the death sentence is the appropriate punishment.

In view of the concern for reliability inherent in our death-penalty procedures, including the automatic review by this court, see OCGA §§ 17-10-2, 17-10-30 and 17-10-35, the trial court in a case like this may have an obligation to conduct an independent investigation into the possible existence of evidence in mitigation. Compare People v. Deere, supra, 710 P.2d at 934-35 (Broussard, J., concurring). We need not decide this question today, because the trial court here undertook to inform itself about Morrison's background and evidence in mitigation, calling as a court's witness the investigator from Tennessee (fn. 2, supra), and questioning the two psychiatrists who had evaluated Morrison, especially Dr. Kuglar, whom the court questioned at length. In addition, the court reviewed Morrison's parole file, which included, among other things, the results of an earlier psychological evaluation.

The court heard the evidence on October 30, 1987. On November 2, 1987, the court announced its sentencing decision as follows:

[Morrison] entered his guilty plea in open court to the charges of murder, armed robbery, rape, theft by taking of motor vehicle and criminal attempt to escape on the 30th day of October, 1987. The defendant waived his right to a jury determination and submitted to the hearing and determination of the Court alone the issue of punishment in the second phase of the trial, which ensued following the acceptance of his guilty plea. After receiving and considering all the evidence and argument of counsel, from both state and accused in open court on the 30th day of October, 1987, the Court makes the following findings as to aggravating circumstances and mitigating or extenuating circumstances.

Aggravating circumstances: The State had served notice of three aggravating circumstances. Taking them in the order in which they were notified, the order in which they were noticed to the accused: OCGA § 17-10-30(b)(2). The Court finds beyond a reasonable doubt that the murder of Edna Mary Griffin was committed by the defendant, Earnest Ulysses...