Perkins v. Hall., S10A1754.

Decision Date18 March 2011
Docket NumberNo. S10A1754.,S10A1754.
Citation708 S.E.2d 335,288 Ga. 810
PartiesPERKINSv.HALL.
CourtGeorgia Supreme Court

288 Ga. 810
708 S.E.2d 335
11 FCDR 758

PERKINS
v.
HALL.

No. S10A1754.

Supreme Court of Georgia.

March 18, 2011.


[708 S.E.2d 338]

Patrick Hikey, Claire Harrison, Dykema Gossett, PLLC, Jeffery Lyn Ertel, Atlanta, for appellant.Thurbert E. Baker, Attorney General, Richard Tangum, Assistant Attorney General, Department of Law, Emily Richardson Roselli, Atlanta, Paula Khristian Smith, Patricia B. Attaway Burton, Senior Assistant Attorneys General, Department of Law, for appellee.NAHMIAS, Justice.

[288 Ga. 810] In 1997, a jury convicted David Aaron Perkins of the murder of Herbert Ryals III, and of related offenses, and it sentenced Perkins to death for the murder. This Court affirmed unanimously on direct appeal, for which Perkins had the same counsel. See

[708 S.E.2d 339]

Perkins v. State, 269 Ga. 791, 505 S.E.2d 16 (1998). With new counsel, Perkins filed a petition for a writ of habeas corpus on September 27, 1999, which was denied more than nine years later, on October 10, 2008. This Court granted Perkins's application for a certificate of probable cause to appeal and requested that the parties address the following four issues: (1) whether the habeas court erred by denying Perkins's claim that his trial counsel rendered ineffective assistance during the sentencing phase; (2) whether the habeas court erred regarding Perkins's claim that he was mentally incompetent during his trial; (3) whether the habeas court erred regarding Perkins's claim regarding three jury notes that were allegedly received by the trial court during Perkins's trial; and (4) what action this Court should take in light of the allegation by three witnesses in the habeas court that they were misled when asked to sign certain affidavits. In addition to these issues, Perkins has raised several others. For the reasons set forth below, we reverse the habeas court's order insofar as it denied Perkins's claim that he was entitled to a new sentencing trial, we affirm regarding the habeas court's denial of Perkins's claim that he was mentally incompetent at the time of trial, and we remand with direction regarding several remaining issues.1

[288 Ga. 811] I. Factual Background

In Perkins's direct appeal, we held that the evidence at trial was sufficient to support his convictions for malice murder and possession of a knife during the commission of a felony, and we affirmed his sentence of death based on the aggravating circumstances that the murder was committed while Perkins was engaged in the commission of an aggravated battery and was outrageously and wantonly vile, horrible, and inhuman in that it involved depravity of mind and an aggravated battery to the victim. See Perkins, 269 Ga. at 792, 792 n. 1, 505 S.E.2d 16. In brief summary, the evidence at trial showed that, on the morning of August 13, 1995, Perkins was entertaining a neighbor, Herbert Ryals, III, who shared an interest in guitar playing. Both men were drinking. Perkins beat Ryals with his guitar, stabbed and cut him 11 times, and hit him in the head with a liquor bottle. The evidence showed that there was an extended struggle throughout the apartment and that Ryals eventually died of blood loss in Perkins's bathroom. Perkins testified at trial that he began stabbing Ryals in self-defense after Ryals hit him from behind unexpectedly and came toward him with “some sharp object.” Perkins testified that he then went to the bathroom and “checked my head” and that he resumed his attack on Ryals with the liquor bottle only after Ryals once again began attacking him. However, the evidence indicated that Perkins had no injuries shortly after the murder, and witnesses testified that Perkins had made a comment on the night before the murder suggesting that something untoward might happen later that night because there was a full moon.

II. Ineffective Assistance of Counsel During the Sentencing Phase

Perkins argues that his trial counsel rendered ineffective assistance in that they were insufficiently prepared for the sentencing phase.2 To prevail on this claim, Perkins must show that his trial counsel rendered constitutionally deficient performance and that actual prejudice of constitutional proportions resulted. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783–784, 325 S.E.2d 362 (1985). Counsel's performance is measured according to the professional norms prevailing at the time of trial. See [288 Ga. 812] Hall v. McPherson, 284 Ga. 219, 221, 663 S.E.2d 659 (2008). Counsel's performance is considered in light of the circumstances as they existed at the time of trial, and the “ ‘distorting effects of hindsight’ ” are disregarded.

[708 S.E.2d 340]

Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). To show sufficient prejudice to prevail on his ineffective assistance claim, Perkins 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.” Smith, 253 Ga. at 783, 325 S.E.2d 362 (citation omitted). This Court accepts the habeas court's findings of fact unless they are clearly erroneous, but we apply the law to those facts de novo. See Head v. Carr, 273 Ga. 613, 616, 544 S.E.2d 409 (2001). In weighing prejudice, we consider the collective prejudice from all of trial counsel's deficiencies. See Schofield v. Holsey, 281 Ga. 809, 811–812 n. 1, 642 S.E.2d 56 (2007).

A. Deficient Performance

There is some tension, if not outright contradiction, between lead counsel's and co-counsel's accounts of who was responsible for preparing for the sentencing phase. Lead counsel testified that the responsibility was co-counsel's, while co-counsel testified that he prepared for the sentencing phase only in consultation with, and under the leadership of, lead counsel. This breakdown of communication and organization seems to explain, at least in part, why Perkins's case was not investigated more thoroughly than it was. See Terry v. Jenkins, 280 Ga. 341, 344, 627 S.E.2d 7 (2006) (affirming the habeas court's vacating of a death sentence where lead counsel and co-counsel miscommunicated regarding who would be responsible for preparing evidence).

The first aspect of trial counsel's performance that was deficient was their failure to fully investigate whether Perkins had suffered one or more brain injuries prior to his crimes. Perkins's original co-counsel, who was later replaced at his insistence, discovered that Perkins once was attacked by several men with a steel rake, that prongs of the rake were embedded in his skull and had to be removed surgically, and that Perkins ever since has had an identifiable hole in his skull. That lawyer testified in the habeas court that she became concerned that Perkins might have suffered an injury to the frontal lobe of his brain and that she therefore attended a seminar on frontal lobe injuries presented by an Emory University professor. The evidence in the habeas record shows that she sent two requests for medical records regarding treatment Perkins received as a result of the rake incident. However, one of the requests bears what was, or at least now is, an incorrect mailing address, and the second request listed an incorrect birth year for Perkins. She testified that she [288 Ga. 813] nevertheless received a response from the hospital, which included Perkins's name and a medical records number but which indicated that the records were too old to still be available; however, habeas counsel have now succeeded in obtaining those records from the hospital. She also testified that Perkins stated to her that he was “not going to be branded as mentally incompetent” and that lead counsel was not interested in pursuing her theory of possible brain damage.

Perkins eventually demanded that she be removed as co-counsel, primarily because she had contacted a woman who had been visiting him at the jail and because she had contacted his jail mates seeking information about his mental condition. As discussed below, lead counsel was unable to persuade Perkins to submit to an examination by a psychiatrist or psychologist. In light of all of the evidence available, it seems that the only manner in which trial counsel clearly rendered deficient performance regarding the rake incident was in not interviewing family members and friends regarding any possible changes in Perkins's behavior following the incident.

Trial counsel also performed deficiently by unduly limiting their interviews of Perkins's family and friends to an unreasonably narrow range of persons. The record indicates that counsel did meet repeatedly with Perkins and his mother and that counsel contacted Perkins's estranged second wife. Counsel also apparently contacted Perkins's aunt but did not ask her about his background. Although the habeas court further found that trial counsel had attempted to contact his father, his sister, and a third

[708 S.E.2d 341]

person regarding whom the record appears silent, it is clear that these attempts were limited to taking his mother's word at face value that the witnesses were “unavailable” and making some telephone calls that were never returned. Furthermore, there is nothing in the trial or habeas records to suggest that trial counsel attempted to contact any of the numerous other family members and friends who testified in the habeas court.

The habeas court found that trial counsel's failure to take further steps to interview Perkins's other relatives was due to his own resistance to having counsel investigate his background more fully. In his testimony in the habeas hearing, co-counsel gave this account of Perkins's reaction to inquiries about possible mitigating evidence:

He did not give me a list of things that he didn't want me to do and that he did want me to do....

To continue reading

Request your trial
39 cases
  • State v. Lane
    • United States
    • Georgia Supreme Court
    • February 10, 2020
    ...202, 219 (VI), 728 S.E.2d 603 (2012) ; Reese v. State , 289 Ga. 446, 450-451 (4) (c), 711 S.E.2d 717 (2011) ; Perkins v. Hall , 288 Ga. 810, 831 (VI) (B), 708 S.E.2d 335 (2011) ; Gear v. State , 288 Ga. 500, 504 (5), 705 S.E.2d 632 (2011) ; McIlwain v. State , 287 Ga. 115, 117 (4), 694 S.E.......
  • Ford v. Tate
    • United States
    • Georgia Supreme Court
    • October 31, 2019
    ...incompetent to enter a guilty plea in 2005, and the habeas court properly denied relief on this claim. See Perkins v. Hall, 288 Ga. 810, 823 (III) (C), 708 S.E.2d 335 (2011) (stating that "the issue of [a defendant]'s competence to stand trial was much narrower than the extremely broad issu......
  • Saunders v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • November 26, 2019
    ...our sister states also support the conclusion that competency claims are subject to procedural default. See, e.g., Perkins v. Hall , 288 Ga. 810, 822, 708 S.E.2d 335 (2011) ("substantive claims of incompetence to stand trial will continue to be subject to procedural default"); State v. Watk......
  • Saunders v. Comm'r of Corr.
    • United States
    • Connecticut Supreme Court
    • April 19, 2022
    ...at the time of his crimes. The latter claim would address his culpability and, therefore, his "actual innocence." Perkins v. Hall , 288 Ga. 810, 826, 708 S.E.2d 335 (2011), overruled in part on other grounds by State v. Lane , 308 Ga. 10, 838 S.E.2d 808 (2020). Instead, the claim of incompe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT