Turpin v. Hill, S97A1496.

• Decision Date: 23 February 1998
• Docket Number: No. S97A1496.,S97A1496.
• Citation: 269 Ga. 302,498 S.E.2d 52
• Parties: TURPIN v. HILL.
• Court: Georgia Supreme Court

498 S.E.2d 52

269 Ga. 302

TURPIN v. HILL.

No. S97A1496.

Supreme Court of Georgia.

February 23, 1998.

Reconsideration Denied April 2, 1998.

Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for Tony Turpin, Warden.

Stephen Christopher Bayliss, Atlanta, for Warren Hill.

Daniel J. Porter, Dist. Atty., Gwinnett Circuit, Peter J. Skandalakis, Dist. Atty., Coweta Circuit, Kermit N. McManus, Dist. Atty., Conasauga Circuit, Alvin G. Hollingshed, amici curiae.

HUNSTEIN, Justice.

Warren Lee Hill, Jr. was sentenced to death in 1991 for the 1990 murder of a fellow prison inmate. Although Hill was tried three years after the effective date of OCGA § 17-7-131(c)(3) and (j), which authorizes a verdict of guilty but mentally retarded and bars the execution of those found to be mentally retarded, no issue was raised by Hill regarding any alleged mental retardation at trial or on appeal. His conviction was affirmed by this Court. Hill v. State, 263 Ga. 37, 427 S.E.2d 770 (1993). Hill then filed a petition for writ of habeas corpus contending, inter alia, that his death sentence should be set aside on the ground that he is mentally retarded and thus should not be subject to execution;¹ Hill also contended that trial counsel was ineffective for failing to investigate properly and raise his alleged mental retardation at trial. The State raised the defense of procedural default. The habeas court ruled that because the execution of a mentally retarded person violates the cruel and unusual punishment provision in the Georgia Constitution, as held in Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989), the issue of mental retardation was not subject to procedural default. The habeas court then applied the standards set forth in Fleming v. Zant, which were promulgated to review mental retardation claims that arose in cases before the effective date of OCGA § 17-7-131, and found that Hill had presented sufficient credible evidence of mental retardation. The habeas court granted Hill a limited writ of habeas corpus for the purpose of conducting a jury trial on the issue of his mental retardation. The State appeals. For the reason set forth below, we reverse.

1. The State properly filed a direct appeal from the habeas court's order. OCGA § 9-14-52(c); see Zant v. Pitts, 263 Ga. 529, 436 S.E.2d 4 (1993).

2. The record reveals that appellee submitted affidavits directly to the habeas court after noticing his intent to rely upon the affidavits, see OCGA § 9-14-48(c); the affidavits were disputed as to their merits by the State; and the habeas court has specifically ruled that it considered the affidavits in rendering its order. Therefore, we find no merit in the State's argument that there was no evidence to support the habeas court's order due to appellee's failure, before the order was rendered, to formally tender the affidavits into evidence. The habeas court correctly granted appellee's motion to complete the record on appeal by the addition of these affidavits. Contrary to the State's argument, the record reflects that appellee sufficiently satisfied the statutory requirements for the admissibility of the affidavits, OCGA § 9-14-48(c), and that the habeas court considered the State's evidence before rendering its order.

3. The State contends the habeas court erred by holding that appellee's mental retardation claim was not subject to procedural default.

(a) Initially, we hold that the State is not precluded from raising this argument. Our review of the record reveals that the State's actions after the challenged ruling did not constitute a waiver by the State of its objection to the habeas court's consideration of the mental retardation claim.

(b) In light of this Court's holding that the execution of the mentally retarded constitutes cruel and unusual punishment under the Georgia Constitution, Fleming v. Zant, supra, 259 Ga. at 690, 386 S.E.2d 339, we find no error in the habeas court's consideration of appellee's claim of mental retardation.² "In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice." OCGA § 9-14-48(d). See also Black v. Hardin, 255 Ga. 239(4), 336 S.E.2d 754 (1985) and Valenzuela v. Newsome, 253 Ga. 793(4), 325 S.E.2d 370 (1985) (even absent a showing of cause and prejudice, the relief of the writ will remain available to avoid a miscarriage of justice where there has been a substantial denial of constitutional rights).

4. We reverse the habeas court's ruling, however, because we hold that the standards set forth in Fleming v. Zant, supra, are not applicable to mental retardation claims raised in cases tried after the effective date of OCGA § 17-7-131(c)(3) and (j). Our opinion in Fleming v. Zant expressly states that it "will not apply to defendants tried after the effective date of the statute." Id., 259 Ga. at 691 n. 4,386 S.E.2d 339. As discussed in Burgess v. State, 264 Ga. 777, 789(36), 450 S.E.2d 680 (1994), this Court intended in Fleming v. Zant to give defendants tried before the effective date of the statute essentially the same opportunity to litigate the issue of mental retardation as those defendants would have had if the cases were tried with the benefit of the statute. In Burgess, supra at 790-791(36), 450 S.E.2d 680, we declined to apply the standards in Fleming v. Zant to a defendant tried after the effective date of OCGA § 17-7-131(c)(3) and (j) and drew attention to the different standards between the statute and the Fleming v. Zant opinion, specifically, the requirement in the statute that defendants carry the burden of proving their mental retardation beyond a reasonable doubt, as opposed to the holding in Fleming v. Zant, supra, 259 Ga. at 690(4), 386 S.E.2d 339, that requires defendants to bear the burden of proving retardation by a preponderance of the evidence.³ To apply the Fleming v. Zant standards to a defendant tried after the effective date of OCGA § 17-7-131(c)(3) and (j) would result in disparate treatment of such defendant.⁴ Given the explicit language in Fleming v. Zant prohibiting its application to defendants tried after the effective date of the statute, we hereby hold that the standards in Fleming v. Zant are not applicable to defendants like appellee who were tried when the statutory procedure established by our legislature to effectuate the public policy against the execution of mentally retarded defendants was in force. Upon considered review of this issue, we conclude that our holding to the contrary in Zant v. Pitts, supra, 263 Ga. at 529, 436 S.E.2d 4 (ineffective assistance of counsel claim) was misguided and we hereby overrule language to the contrary in that case.

Accordingly, this appeal is reversed and the case is remanded to the habeas court to consider appellee's claim of mental retardation and to determine without intervention of jury whether appellee can establish, under the applicable standard set forth in OCGA § 17-7-131(c)(3), that he is mentally retarded so as to invoke the bar against execution in OCGA § 17-7-131(j). See generally Turpin v. Todd, 268 Ga. 820, 830(4) n. 45, 493 S.E.2d 900 (1997).

Judgment reversed and case remanded.

All the Justices concur, except FLETCHER, P.J., who concurs specially and CARLEY and THOMPSON, JJ., who dissent.

FLETCHER, Presiding Justice, concurring specially.

I concur completely in the majority's decision to remand the case to the habeas court for a determination of Hill's claim of mental retardation. However, I would require that Hill establish his claim by a preponderance of the evidence rather than beyond a reasonable doubt. See Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502 (1998) (Fletcher, P.J., dissenting).

CARLEY, Justice, concurring in part and dissenting in part.

I concur in Divisions 1, 2, 3(a) and 4 of the majority opinion and in the judgment of reversal. However, I believe that a claim for habeas relief based upon an allegation of mental retardation is subject to procedural default and that the habeas court erred, therefore, in considering the issue of Hill's alleged mental retardation under any standard. Accordingly, I respectfully disagree with Division 3(b) of the majority opinion and dissent to the remand for the habeas court's further consideration of Hill's claim of mental retardation.

Although Hill did not raise his alleged mental retardation as a bar to the death penalty at the guilt-innocence phase of the trial, the majority nevertheless concludes that the habeas court is authorized to address that belated claim under the "miscarriage of justice" exception to the principle of procedural default. "In precisely the same vein" as federal law, OCGA § 9-14-48(d) incorporates this limited "miscarriage of justice" exception into our state habeas corpus statute. Valenzuela v. Newsome, 253 Ga. 793, 796(4), 325 S.E.2d 370 (1985). Even in death-penalty cases, the United States Supreme Court has "emphasized the narrow scope of the ... exception." Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). Consistent with "the core purpose of the writ—which is to free the innocent wrongfully deprived of their liberty," we have restricted the "miscarriage of justice" exception to "rare" occasions. Valenzuela v. Newsome, supra at 796(4), 325 S.E.2d 370. This restriction is essential to preserve judicial resources and the finality of judgments. Sawyer v. Whitley, supra at 338, 112 S.Ct. at 2518; Valenzuela v. Newsome, supra at 796(4), 325 S.E.2d 370.

"`[T]he term ["miscarriage of justice"] is by no means to be deemed synonymous with procedural irregularity, or even with reversible error. To the contrary, it demands a much greater substance, approaching perhaps the imprisonment of one who, not only is not guilty of the specific offense for which he is convicted, but, further, is not even culpable in the circumstances under inquiry."

(Emphasis in original.)...