Waldrip v. Head

• Decision Date: 12 October 2005
• Docket Number: No. S05A1402.,S05A1402.
• Citation: 620 S.E.2d 829
• Parties: WALDRIP v. HEAD.
• Court: Georgia Supreme Court

620 S.E.2d 829

WALDRIP v. HEAD.

No. S05A1402.

Supreme Court of Georgia.

October 12, 2005.

Reconsideration Denied November 7, 2005.

COPYRIGHT MATERIAL OMITTED

David J. Kessler, Lawrence J. Fox, Alicia D. Hickok, Drinker Biddle & Reath LLP, Philadelphia, PA, for Appellant.

Hon. Thurbert E. Baker, Atty. Gen., Patricia B. Attaway Burton, Asst. Atty. Gen., for Appellee.

Christopher Adams, Georgia Capital Defender, Holly Lynn Geerdes, Georgia Capital Defender, Richard A. Malone, Prosecuting Atty's Council, other party representation.

BENHAM, Justice.

Tommy Lee Waldrip was convicted in 1994 of murdering Keith Lloyd Evans and related crimes. Waldrip was sentenced to death for the murder, and this Court unanimously affirmed. Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299 (1997). Waldrip filed a petition for writ of habeas corpus on March 17, 1998; an evidentiary hearing was held on April 29, 2002; and his petition was denied in an order filed on June 10, 2004. This Court granted Waldrip's application for certificate of probable cause to appeal on May 9, 2005, and directed the parties to address whether the habeas court erred in denying Waldrip's evidence suppression claims and in denying Waldrip's claim regarding the State's use, during his competency trial, of his silence and request for counsel. For the reasons set forth below, we find no reversible error and therefore affirm.

I. Factual Background

The evidence at Tommy Lee Waldrip's trial showed that his son, John Mark Waldrip, had been convicted of armed robbery, had successfully moved for a new trial, and was awaiting re-trial. Keith Evans was to be a witness in the armed robbery re-trial. Late on the night of April 13, 1991, Tommy Lee Waldrip, John Mark Waldrip, and Tommy Lee Waldrip's brother-in-law, Howard Livingston, drove to a secluded highway where they stopped Keith Evans as he was driving home from work. Keith Evans was shot twice with a shotgun as he sat in his truck, was driven in his truck to another location, was beaten to death, and was buried in a shallow grave at a third location.

II. Allegedly-Suppressed Evidence

Waldrip claims that the State suppressed a number of items of allegedly-exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To prevail on an evidence suppression claim, one must show

the State possessed evidence favorable to the defendant; the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.

Burgeson v. State, 267 Ga. 102(2), 475 S.E.2d 580 (1996). Below, we discuss each item of allegedly-suppressed evidence, and we then analyze any collective prejudice suffered by Waldrip and the impact of procedural default on Waldrip's overall evidence suppression claim.

A. "Summary Report"

Waldrip had numerous contacts with law enforcement officers before and after his arrest. During his habeas proceedings, Waldrip obtained a "Summary Report," a 22-page document apparently summarizing various aspects of the murder investigation. At the conclusion of a section describing Waldrip's arrest, the report states as follows: "Tommy was initially interviewed by Sheriff Chester, [sic] However, he asked for an attorney and the interview was terminated." Waldrip argues this statement in the "Summary Report" adequately proves he requested counsel after his arrest. He then argues his uncounseled, highly-inculpatory statements to Georgia Bureau of Investigation Agent Tim Attaway the day after his arrest are inadmissible because they were made as a result of Agent Attaway's initiating contact with him in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In its analysis, the habeas court stated that the "Summary Report" "was not Brady material but, instead, constituted the work product of the State and, as such, was not discoverable by the defense." In support of its ruling, the habeas court cited Foster v. State, 258 Ga. 736(4), 374 S.E.2d 188 (1988), which concerned a motion by the defense for an in camera review of the prosecution's jury selection notes. However, the habeas court's reliance on Foster to answer Waldrip's Brady claim was misplaced, as this Court explicitly noted in Foster that that case did not involve the constitutional right to exculpatory information under Brady. Certainly, much of a prosecutor's work product will not fit the definition of exculpatory evidence subject to disclosure under Brady, but were the work product doctrine and the constitutional right to exculpatory evidence to be in conflict, the former obviously would have to yield to the latter.

The habeas court continued its analysis as follows: "Additionally, the summary report is not Brady material in that Petitioner, himself, was aware that he had told law enforcement that he wanted to speak to an attorney." That reasoning is partially valid in that it highlights the requirement that "the defendant did not possess the evidence nor could he [have] obtain[ed] it himself with any reasonable diligence." Burgeson, supra, 267 Ga. at 104, 475 S.E.2d 580. It is also superficially consistent with our decisions holding that exculpatory portions of a defendant's pre-trial statements to law enforcement generally are not Brady material because the information contained therein is known to the defendant. See, e.g., Lobdell v. State, 256 Ga. 769(5), 353 S.E.2d 799 (1987). However, the habeas court's analysis fails to address the possibility that the "Summary Report" could have been used at trial as admissible evidence of the Sheriff's own knowledge of Waldrip's alleged request for counsel. It is one thing to say the State has no constitutional duty to remind a defendant of his or her own pre-trial allegations of fact contained in his or her own statement to law enforcement officers, but it would be another case altogether if the State failed to disclose evidence confirming the defendant's allegations.

Having noted the deficiencies in the habeas court's reasoning, we still must examine whether Waldrip, based on the showing he made in the habeas court, has demonstrated that the "Summary Report" is admissible evidence capable of supporting any of his claims. The statement at issue in the "Summary Report" is the written hearsay statement of its author. Although one prosecutor, Lee Darragh, testified in a deposition that "it appear[ed]" that the "Summary Report" was prepared by another prosecutor, Raymond George, and although the "Summary Report" itself bears Raymond George's name, there is nothing in the record to indicate that Waldrip ever even attempted to call Raymond George as a witness. Furthermore, Waldrip did not even question Lee Darragh specifically about the portion of the "Summary Report" at issue here. Given Waldrip's failure to show the relevant statement in the "Summary Report" to be anything other than hearsay and quite possibly double hearsay, his failure to attempt any showing of why the general exclusion of hearsay should not apply in this case, and his failure to show any specific lawful use of the statement, the statement in the "Summary Report" must be regarded as completely inadmissible and without probative value. See Bridges v. State, 279 Ga. 351, 354-355, 355 n. 12, 613 S.E.2d 621 (2005); Roebuck v. State, 277 Ga. 200(1), 586 S.E.2d 651 (2003) (noting "Georgia's long-standing rule that inadmissible hearsay lacks probative value even though the opposing party does not object to its introduction"). One may speculate as to the possible source or correctness of the statement in the "Summary Report" regarding a request for counsel,¹ but the restrictions on hearsay evidence exist for the very purpose of forbidding such baseless speculation conducted without the truth-seeking benefits of proper evidentiary procedure.

In light of the complete absence of admissible evidence showing any prejudice to Waldrip's defense at trial, this individual claim does nothing to contribute to a showing of overall prejudice arising from suppressed evidence. Similarly, Waldrip's related claim alleging the prosecution's failure to correct false testimony and Waldrip's attempt to overcome the procedural bar to that claim must fail because he has not produced any admissible evidence to show that the testimony at trial was, in fact, false. See Byrd v. Owen, 272 Ga. 807, 809-812, 536 S.E.2d 736 (2000) (discussing claim of uncorrected false testimony under federal constitutional standards).

B. Mental Health Evidence

Waldrip contends that the State suppressed the following five items of evidence that would have been helpful to him in his competency trial and in his criminal trial: a scoring sheet from a psychological test; notes from an expert's mental status examination; notes from an outpatient interview; information about a statement made by one of Waldrip's jail mates; and a parole report stating Waldrip was "unstable at times." As the discussion below indicates, we conclude that Waldrip's claims regarding these items do not show significant prejudice in support of his overall evidence suppression claim or his attempt to overcome the procedural default of that claim.

First, Waldrip argues that the State suppressed the scoring sheet from a Minnesota Multiphasic Personality Inventory-2 test. The Warden argues that Waldrip cannot show cause to overcome the procedural default to this claim, that the material in question is not Brady material because Waldrip had equal access to it, and that no Brady violation can be shown because Waldrip's trial counsel actually obtained the material in question during Waldrip's competency trial. Pretermitting these more-complex objections to Waldrip's claim, we examine the scoring sheet in the context of Waldrip's...