Turpin v. Bennett
| Decision Date | 01 March 1999 |
| Docket Number | No. S98A1993, No. S98X1995. |
| Citation | 270 Ga. 584,513 S.E.2d 478 |
| Parties | TURPIN v. BENNETT. Bennett v. Turpin. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Christopher L. Phillips, Asst. Atty. Gen., Department of Law, Atlanta, James David McDade, Dist. Atty., Douglasville, for Tony Turpin.
Stephen S. Cowen, Douglas White Gilfillan, James Walton Boswell III, Michael M. Raeber, King & Spalding, Atlanta, for Jack A. Bennett.
This habeas corpus case presents an issue of first impression in this state: Does a defendant have a right to effective assistance of an expert witness which is distinct from his right to effective assistance of counsel? We answer this question in the negative. We hasten to add, however, that the adequacy of an expert's assistance can be examined within the context of an ineffective assistance of counsel claim.
Jack Bennett was convicted of murdering his wife and sentenced to death. This Court affirmed Bennett's conviction and death sentence, Bennett v. State, 262 Ga. 149, 414 S.E.2d 218 (1992), and the United States Supreme Court denied Bennett's petition for certiorari. Bennett v. Georgia, 506 U.S. 957, 113 S.Ct. 416, 121 L.Ed.2d 340 (1992).
Bennett and the victim had been married for only four days when, as the victim slept, Bennett took a knife, stabbed her more than 100 times, and crushed her skull with a hammer. The State theorized that Bennett killed his wife in a jealous rage.
Until the time of the murder, Bennett, who was 62 years old, led a peaceful life. The father of four daughters, he was gainfully employed at a job which he held for twenty years, and had no record of crime or violence.
Bennett turned himself in to the police and freely admitted that he killed his wife. He claimed that his wife and another had been plotting to kill him and that he killed her in self-defense. Based on that claim and Bennett's apparent instability, trial counsel Kenneth Krontz and Jennifer McLeod, who had been retained by Bennett, came to the conclusion that they needed a psychiatrist to explore an insanity defense.
In a previous case calling for psychiatric assistance, trial counsel used Dr. Boaz Harris. They were impressed by Dr. Harris, who was a graduate of Yale University School of Medicine and the founder of Charter Peachford Hospital in Atlanta, and decided to procure his services again.
Dr. Harris met with Bennett several times after his arrest and came to the conclusion that Bennett was legally insane when he killed his wife. His diagnosis: Bennett was suffering from a temporary psychotic episode.
Dr. Harris informed defense counsel of his diagnosis and added that numerous stress factors led to Bennett's mental breakdown. Dr. Harris also told counsel that Zantac, a medication which had been prescribed for Bennett, was an "important" contributing factor.1
Defense counsel met with Dr. Harris several times. The last meeting took place nine months before trial. Although other meetings were arranged before the trial began, Dr. Harris begged off.
Defense counsel spoke with Dr. Harris by telephone three months before trial. And they had a brief telephone conversation with him the day before he was to testify. They thought his testimony was a "done deal." On the day he testified, a Friday, Dr. Harris arrived in the courtroom looking "deathly ill." He was accompanied by a companion who had driven him and assisted him in moving about.
Dr. Harris was to testify in the afternoon as Bennett's last witness. Before testifying, Dr. Harris rested on a couch in defense counsel's office for three hours, but his condition did not improve. When defense counsel suggested they should seek a continuance until Monday, Dr. Harris balked and said he would "withdraw" if he did not testify that afternoon. But he assured defense counsel he was prepared and able to testify.
Defense counsel called Dr. Harris to the witness stand. He was far from the expert witness that defense counsel had known him to be. His clothes were disheveled; he was unkempt and sloppy. His testimony was the worst defense counsel had ever seen: He confused names and appeared to be irrational; his voice fluctuated inappropriately; and his facial expressions were "cartoonish."
Dr. Harris did testify on direct examination that, at the time in question, Bennett had had a temporary psychotic episode and that he did not know right from wrong. But he "stunned" defense counsel when he "pooh poohed" the notion that Zantac was an important contributing factor in Bennett's psychosis.2
On cross-examination, Dr. Harris did even more damage to the defense. His response to several questions was to sit speechless, and he was distracted by crime scene photos. He continued to be confused and rambling.3 When the prosecutor asked Dr. Harris what he would do for Bennett to prevent him from killing again, he replied, "I'd give him Tylenol as needed for his headache and I'd tell him to take—to stay on Zantac for his hiatal hernia ... [and] I'd send him home with follow-up care." This evoked laughter in the courtroom and the jury box.
Dr. Harris volunteered additional damaging testimony after the prosecutor finished cross-examining him. The colloquy went as follows:
After Dr. Harris testified, Krontz turned to Bennett and apologized to him. He believed that Dr. Harris had "gutted" the insanity defense and destroyed the credibility of the entire defense team. Accordingly, although Dr. Harris' "expert" testimony was to be the lynchpin of Bennett's insanity defense, defense counsel made no reference to it in closing argument.
When defense counsel returned to their office they learned, through Dr. Harris' companion, that Dr. Harris was suffering from AIDS. It was at that point that they realized Dr. Harris had deceived them with regard to his ability to testify on Bennett's behalf.
Defense counsel put forth no mitigating psychiatric evidence during the penalty phase of the trial. And, although they had requested a charge on Bennett's lack of future dangerousness, they introduced no evidence along those lines because they feared calling Dr. Harris back to the stand. Accordingly, the trial court refused to give a lack of future dangerousness charge.
Defense counsel subsequently learned that, at the time of trial, Dr. Harris had AIDS dementia. In fact, his illness had become so severe that he had closed his office shortly before the trial, and he died six months later. The cause of death was viral encephalopathy.
Bennett filed a habeas corpus petition in which he alleged that he was denied his right to effective assistance of a mental health expert, as well as his right to effective assistance of counsel. At the hearing, Bennett presented the testimony of Krontz and McLeod, as well as Dr. Charles Barnett Nemeroff, the chairman of the Department of Psychiatry at Emory University Medical School. Dr. Nemeroff testified that, at the time of the murder, Bennett suffered a brief reactive psychosis, and, possibly, an acute delusional paranoid disorder; that Zantac was one of a number of factors which could have contributed to Bennett's breakdown; and that it was unlikely that the murder was the result of a jealous rage. He also testified that Dr. Harris' performance at trial was "not in any way, shape or form competent."
The habeas corpus court found that Bennett was deprived of his due process right to a fair trial because the testimony of his psychiatric expert completely undermined his insanity defense. Accordingly, the habeas corpus court granted Bennett's petition, overturned his conviction and death sentence, and ordered a new trial. In passing, the habeas corpus court came to the conclusion that defense counsel could not be faulted for putting Dr. Harris on the witness stand without interviewing him.
The State appeals, in Case No. S98A1993. Bennett cross-appeals in Case No. S98X1995, asserting, primarily, that the habeas corpus court erred in failing to find ineffectiveness of trial counsel.
1. The due process clause ensures that a defendant will be given access to a competent psychiatrist when the defendant's mental state is in issue. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). But this is not to say that a defendant is entitled to the effective assistance of a psychiatrist in addition to the effective assistance of counsel. On the contrary, a defendant has no right to the effective assistance of a psychiatrist, or any other expert. Waye v. Murray, 884 F.2d 765 (4th Cir.1989) (per curiam).
In Waye, the defendant claimed that his psychiatrist was ineffective because he failed to emphasize the defendant's diminished capacity in his trial testimony. The court rejected that claim and observed:
[i]t will nearly always be possible in cases involving the basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural demands of a fair trial and the constitution require.
Id. at 767. Other courts which have considered this issue are in agreement with Waye. See, e.g., Wilson v. Greene, 155 F.3d 396, 401 (4th Cir.1998) (); Harris v. Vasquez, 949 F.2d 1497,...
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