Terry v. Jenkins, S05A2064.

• Decision Date: 27 February 2006
• Docket Number: No. S05A2064.,S05A2064.
• Citation: 627 S.E.2d 7,280 Ga. 341
• Parties: TERRY v. JENKINS.
• Court: Georgia Supreme Court

280 Ga. 341

627 S.E.2d 7

TERRY v. JENKINS.

No. S05A2064.

Supreme Court of Georgia.

February 27, 2006.

Thurbert E. Baker, Atty. Gen., Christopher Dale Helms, Asst. Atty. Gen., Stephen D. Kelley, Dist. Atty., for appellant.

Hayward H. Smith, Ogden N. Lewis, Andrew Dean, Davis, Polk & Wardwell, New York, NY, for appellee.

Thomas Howard Dunn, Georgia Resource Center, Atlanta, other party representation.

HUNSTEIN, Presiding Justice.

In September 1995, Larry L. Jenkins, Jr., was convicted of the malice murders of Terry and Michael Ralston and related crimes. He was sentenced to death for each of the murders, and this Court affirmed. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502 (1998). Jenkins filed a petition for writ of habeas corpus on March 4, 1999. After conducting evidentiary hearings in December 2002 and January 2003, the habeas court vacated Jenkins's death sentences and convictions, finding, inter alia, that the Supreme Court of the United States had declared death sentences for crimes committed by persons under the age of 18 to be unconstitutional and that Jenkins's trial counsel rendered ineffective assistance in the guilt/innocence phase of Jenkins's trial. For the reasons set forth below, we affirm the judgment of the habeas court ordering a new trial.

1. The habeas court found as a matter of fact that Jenkins was 17 years old at the time of the crimes of which he was convicted and vacated Jenkins's death sentences in light of the recent holding of the Supreme Court of the United States that death sentences for crimes committed by persons under the age of 18 violate the Constitution of the United States. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ("A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment."). The Warden has not appealed the ruling vacating Jenkins's death sentences, and pursuant to Roper, supra, Jenkins is no longer subject to those sentences.

2. In his petition for habeas corpus, Jenkins challenged the sufficiency of his attorneys' performance in the guilt/innocence phase of his trial, arguing that counsel failed to conduct a reasonable investigation into the crimes and possible defenses. We agree with the habeas court's conclusion that counsel rendered ineffective assistance in the guilt/innocence phase of trial and affirm that portion of the habeas court's order.

An ineffective assistance claim requires a showing that counsel performed deficiently under constitutional standards and that counsel's deficiency in reasonable probability changed the outcome of the case. Strickland v. Washington, 466 U.S. 668, 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). In weighing the adequacy of counsel's performance, counsel is presumed to have provided "reasonable professional assistance." Circumstances knowable only through hindsight are not considered. Strickland, 466 U.S. at 689-690(III)(A), 104 S.Ct. 2052. As an appellate court, "we accept the habeas court's findings of fact unless clearly erroneous but independently apply those facts to the law." Head v. Ferrell, 274 Ga. 399, 404(V), 554 S.E.2d 155 (2001).

a. Evidence introduced during the guilt/innocence phase of Jenkins's trial focused largely on questions regarding who was at various places at various times relative to the place and time of the murders. The evidence demonstrated that on the night of the crimes the victims were abducted from a coin-operated laundry and the victims and a large quantity of quarters were taken away in the victims' white van. The victims' bodies were later discovered face down in a ditch near some railroad tracks.

The general time of the murders was well established. Terry Ralston's father testified that she normally closed the laundry at about 9:00 p.m. and various witnesses testified that on the night of the crimes they heard multiple gunshots about 9:00 p.m. and saw an unoccupied white van near the area where the bodies were found sometime between 9:00 and 10:00 p.m.

David Wilkerson, a friend of Jenkins, testified that Jenkins came to visit him at the Kentucky Fried Chicken restaurant where he worked at about 10:00 or 10:30 p.m. Another employee, Nekia Wilson, testified that Jenkins arrived at the restaurant at about 10:30 p.m. in a white van. She did not testify as to whether Jenkins arrived alone. Wilkerson, who was granted use and derivative use immunity, recounted that Jenkins returned to the restaurant at 11:30 or 11:45 p.m. in the white van, which Jenkins claimed belonged to his mother, and they drove to the Briarwood apartment complex to allow Wilkerson to change his clothes. Jenkins and another individual, Burnies Durden, then picked up Wilkerson and the three set out for the night in the white van. Wilkerson testified that he saw Jenkins with a handgun and saw a bag of quarters; however, he conceded on cross-examination that he did not see the handgun or the quarters until Durden joined the group. Wilkerson further testified that on the day following the crimes he, Jenkins, Durden, and a young man named Jeramon Campbell rolled the quarters and attempted to trade them for cash. Wilkerson testified that Jenkins never stated that he had committed a crime.

Jeramon Campbell, who also was granted use and derivative use immunity, testified that he was at his sister's apartment at the Briarwood apartment complex when he noticed Durden, Wilkerson, and Jenkins in the parking lot with a white van, which Jenkins said was his mother's. Campbell joined the group and assisted them in rolling quarters. Campbell testified that he saw Jenkins with Michael Ralston's driver's permit, but he denied that Jenkins made any comment about the license. Durden allegedly told Campbell that "they had killed a lady," but Campbell was emphatic under questioning by the prosecutor that Jenkins did not report being involved in a murder and that only Durden stated that "they" had committed a murder. Campbell stated that he confronted Jenkins with Durden's claim about a murder, to which Jenkins replied, "We were just kidding."

Burnies Durden, testifying under use and derivative use immunity, gave the most damning testimony at Jenkins's trial. Durden testified that he was at the Briarwood apartment complex playing cards with friends when Jenkins and Wilkerson arrived in the white van at about 11:30 p.m. Durden testified that Jenkins had a handgun, that Jenkins claimed that the van was his mother's, and that Jenkins had quarters he said came "[o]ut of a piggy bank." Durden testified that Jenkins privately stated that he killed and robbed someone. Directly contrary to Campbell's testimony, Durden testified that Jenkins insisted to Campbell that he committed a murder and that Jenkins even presented the driver's permit to Campbell as evidence, saying, "If you don't believe what I did, here's the license to prove it."

Throughout trial, Jenkins's trial counsel attempted to show that other persons used the victims' white van on the night of the murders or should be suspected for other reasons, focusing special attention on Durden and a man named Michael Woods. Counsel emphasized Campbell's testimony that it was Durden who stated "they" had committed a murder and that Jenkins denied committing a crime. Counsel also presented testimony tending to establish that on the night of the murders Durden visited a second apartment complex alone and in a white van and that one white woman and multiple black males were driving in the white van between 8:00 and 9:00 p.m. One witness testified that Jenkins, Wilkerson, and Durden visited her apartment in the early morning hours following the murders and Durden threw away a pair of black boots in her apartment dumpster. She later inspected the boots and found that they had material on them that appeared to be blood. Counsel attempted several times to create reasonable doubt by suggesting that Michael Woods was involved in the murders, but their questioning was ineffectual apart from being able to elicit testimony from an investigator that Woods had been a suspect and his whereabouts at the time of the murder were unknown.

b. The whole of this disputed evidence demonstrates that Jenkins's main defense during the guilt/innocence phase was to create reasonable doubt by showing that the crimes were committed by others, namely, Durden and Woods. With regard to counsel's actions in investigating and establishing this defense, the record from the habeas hearing shows that after Jenkins's arrest, a local attorney, Kenneth Carswell, was appointed to represent Jenkins. Because Carswell lacked experience in death penalty cases, the trial court appointed G. Terry Jackson to serve as lead counsel, and Carswell became co-counsel. The habeas court found that "Jackson and Carswell miscommunicated about the role each would play in [Jenkins's] defense." Our review of the record confirms this finding. Jackson testified in a deposition that it was Carswell's job "to investigate all of the witnesses and events in Jesup." In contrast, Carswell saw his job as "doing what I was told, providing some `local flavor,' and telling Terry what I knew about local witnesses, such as Michael Woods, Burnies Durden, Jeramon Campbell, David Wilkerson, and so on." Carswell further testified that even though he was appointed as counsel for Jenkins in this death penalty prosecution, he was not going to "fan the flames." When he was asked to...