Turpin v. Christenson

• Decision Date: 16 March 1998
• Docket Number: Nos. S97A1435,S97X1438,s. S97A1435
• Citation: 497 S.E.2d 216,269 Ga. 226
• Parties: , 98 FCDR 906 TURPIN v. CHRISTENSON. CHRISTENSON v. TURPIN.
• Court: Georgia Supreme Court

Page 216

497 S.E.2d 216

269 Ga. 226, 98 FCDR 906

TURPIN v. CHRISTENSON.

CHRISTENSON v. TURPIN.

Nos. S97A1435, S97X1438.

Supreme Court of Georgia.

March 16, 1998.

Reconsideration Denied April 1, 1998.

J. Gray Conger, Dist. Atty., Chattahoochee Circuit, Thurbert E. Baker, Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for Tony Turpin.

Jimmy D. Berry, for Scott Lynn Christenson.

THOMPSON, Justice.

Scott Lynn Christenson was convicted of murder and armed robbery in 1990, and sentenced to death. This Court affirmed Christenson's convictions in Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991) ("Christenson I "), but remanded to the trial court to determine if the State had a good faith basis for some of its cross-examination questions during the sentencing phase and to conduct a Jackson-Denno hearing on the admissibility of a custodial statement introduced in the sentencing phase. The United States Supreme Court denied Christenson's petition for certiorari. Christenson v. Georgia, 502 U.S. 855, 112 S.Ct. 166, 116 L.Ed.2d 130 (1991). In Christenson v. State, 262 Ga. 638, 423 S.E.2d 252 (1992) ("Christenson II "), this Court affirmed Christenson's death sentence. Christenson's petition for certiorari was again denied. Christenson v. Georgia, 508 U.S. 927, 113 S.Ct. 2388, 124 L.Ed.2d 291 (1993).

In 1995 Christenson filed this habeas action, raising numerous claims, including ineffective assistance of counsel. The habeas court ruled that many of Christenson's claims were not subject to habeas review because they had been addressed on direct appeal, and that many other claims had been procedurally defaulted. The habeas court, however, vacated Christenson's death sentence because his trial counsel had been ineffective in the preparation for and the conduct of the sentencing phase. The State appeals the habeas court's vacation of the sentence, Case No. S97A1435, and Christenson cross-appeals the habeas court's affirmance of his conviction, Case No. S97X1438. We affirm.

The factual background for Christenson's conviction and sentence is set out in Christenson I, supra at (1), 402 S.E.2d 41. Briefly summarized, the evidence adduced at trial showed that the victim, Albert L. Oliver III, was last seen driving his Toyota sports utility vehicle, with Christenson in the passenger's seat, on July 6, 1989. Christenson was arrested for stealing gas in Lonoke, Arkansas, on July 7, 1989. He was alone and driving Oliver's vehicle. There were bloodstains in the vehicle and on some of Christenson's clothes. After Oliver's body was discovered near Columbus, Georgia, Christenson admitted to killing Oliver in four separate statements: a written statement, two audiotaped statements, and a videotaped statement which included Christenson's reenactment of the crime. According to his statements, Christenson hitched a ride with Oliver (with whom he was acquainted), tried to take his vehicle at gunpoint, struggled with Oliver for the weapon, and shot Oliver and dumped his body in a rural area.

Claims That Are Barred

1. Christenson raised numerous claims of alleged prosecutorial misconduct in his habeas petition regarding both the guilt/innocence and sentencing phases of his trial. He claimed the prosecutor made improper closing arguments, including comments regarding Christenson's lack of remorse, Christenson's failure to testify, prejudicial matters outside the record, the prosecutor's personal and religious beliefs, and the impact of the crime on the victim's family. In addition, Christenson claimed prosecutorial misconduct because the State questioned mitigation witnesses about Christenson's prior offenses without providing Christenson with pretrial notice of the intent to raise these offenses in the penalty phase.

The habeas court correctly ruled that these claims are barred. It is well settled that "[a]fter an appellate review the same issue[ ] will not be reviewed on habeas corpus." Elrod v. Ault, 231 Ga. 750, 750, 204 S.E.2d 176 (1974). Issues which were raised and decided on direct appeal cannot be reasserted in habeas corpus proceedings. Gunter v. Hickman, 256 Ga. 315(1), 348 S.E.2d 644 (1986); Gaither v. Gibby, 267 Ga. 96(2), 475 S.E.2d 603 (1996). This Court has already considered the existence of error in the State's closing arguments on direct appeal and ruled adversely to Christenson. Christenson I, supra at (7), 402 S.E.2d 41. In addition, the State's questions in the penalty phase regarding Christenson's prior offenses were previously addressed by this Court and found to be proper. Christenson II, supra at (2), 423 S.E.2d 252. We find no error.

2. Christenson alleges that the trial court erred by refusing to charge the jury on voluntary manslaughter. This claim was addressed on direct appeal and this Court held that the evidence did not support a charge on voluntary manslaughter. Christenson I, supra at (6), 402 S.E.2d 41. Therefore, this habeas claim is barred. Gunter, supra; Elrod, supra.

3. Christenson claims that the trial court erred by failing to exclude questions about Christenson's prior offenses and to prevent improper comments by the State during closing argument. These habeas claims were also characterized by Christenson as prosecutorial misconduct in Division 1 and are barred for the same reason: they were litigated on direct appeal. Id.

4. Christenson alleges the trial court erred by denying him funds to retain a psychiatrist. This claim was considered on direct appeal and this Court ruled adversely to Christenson. Christenson I, supra at (1)(c), 402 S.E.2d 41. Therefore, this habeas claim is barred. Gunter, supra; Elrod, supra.

5. This Court previously held that Christenson's custodial statements were voluntary and admissible. Christenson I, supra at (3), 402 S.E.2d 41. The State also introduced a custodial statement made by Christenson, after a prior arrest for car theft, as evidence in aggravation. This Court remanded for a Jackson-Denno hearing on the admissibility of this statement, Christenson I, supra at (9), 402 S.E.2d 41, and later held that the statement was admissible. Christenson II, supra at (2), 423 S.E.2d 252. Since the admissibility of these statements was already addressed on direct appeal, a habeas claim on these grounds is barred. Gunter, supra; Elrod, supra.

6. Christenson's habeas complaints regarding the qualification of prospective jurors were addressed on direct appeal and, accordingly, are barred. Christenson I, supra at (4), 402 S.E.2d 41; id.

7. The failure of the trial court to conduct a Batson inquiry was addressed on direct appeal. Christenson I, supra at (5), 402 S.E.2d 41. Therefore, this claim is barred. Gunter, supra; Elrod, supra.

8. This Court has previously determined that Christenson's death sentence was not disproportionate to other death sentences. Christenson II, supra at (3), 423 S.E.2d 252.

Claims That Are Procedurally Defaulted

9. Christenson complains in his habeas corpus petition about several alleged instances of prosecutorial misconduct which were not addressed on direct appeal. Specifically, Christenson claims that the prosecutor should have recused himself due to prior dealings with Christenson, that he improperly commented on several matters outside the evidence, and that he mischaracterized the evidence during cross-examination. Christenson could have raised these issues on direct appeal but he failed to do so. In Georgia, the failure to raise an error timely generally waives a habeas claim unless the petitioner can meet the cause and prejudice test:

[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.

Black v. Hardin, 255 Ga. 239(4), 336 S.E.2d 754 (1985); see also OCGA § 9-14-48(d). The only exception to the cause and prejudice test is the granting of habeas corpus relief to avoid a "miscarriage of justice," which is an extremely high standard that is not met in this case. See Valenzuela v. Newsome, 253 Ga. 793(4), 325 S.E.2d 370 (1985) ("miscarriage of justice" approaches the situation where the State is imprisoning the wrong person due to mistaken identity).

Christenson's claims of prosecutorial misconduct are thus defaulted unless he can satisfy the cause and prejudice test. To show cause, Christenson must demonstrate that "some objective factor external to the defense impeded counsel's efforts to raise the claim that has been procedurally defaulted." Turpin v. Todd, 268 Ga. 820, 825, 493 S.E.2d 900 (1997); McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991). Objective factors which may constitute "cause" include interference by government officials that makes compliance with the procedural rules impossible or a showing that a factual or legal claim was not available to counsel. Turpin, supra. Ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), also constitutes "cause," but attorney error that falls short of that standard does not. Id. To show prejudice, Christenson must demonstrate actual prejudice that "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 828, 493 S.E.2d 900; United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982).

Christenson cannot show sufficient cause to excuse his procedural default. He presents no evidence that any external factors impeded his counsel's ability to raise any of these claims, and the factual and legal basis of these...