Whatley v. Terry

• Decision Date: 06 October 2008
• Docket Number: No. S08A1076.,S08A1076.
• Citation: 284 Ga. 555,668 S.E.2d 651
• Parties: WHATLEY v. TERRY.
• Court: Georgia Supreme Court

668 S.E.2d 651

284 Ga. 555

WHATLEY v. TERRY.

No. S08A1076.

Supreme Court of Georgia.

October 6, 2008.

Reconsideration Denied November 3, 2008.

Thomas H. Dunn, Atlanta, for Appellant.

Thurbert E. Baker, Atty. Gen., Emily R. Roselli, Asst. Atty. Gen., for Appellee.

SEARS, Chief Justice.

A jury found Frederick R. Whatley guilty of the murder of Ed Allen and related offenses and sentenced him to death. This Court affirmed Whatley's convictions and sentences in 1998.¹ Whatley filed a petition for writ of habeas corpus on August 6, 1999, which he amended on April 30, 2001. An evidentiary hearing was held on July 30, 2002, and, after a new judge was assigned to the case, closing arguments were heard on December 8, 2005. The habeas court denied Whatley's petition in an order filed on December 4, 2006, and this Court granted Whatley's application for certificate of probable cause to appeal. For the reasons set forth below, we affirm the habeas court's denial of Whatley's habeas petition.

I. Factual Background

The evidence at trial supports the following description of the murder. At 8:45 p.m. on January 26, 1995, Whatley entered Roy's Bait Shop in Griffin armed with a .32 caliber revolver he had stolen from a relative. The only persons inside the store at the time were the owner, Ed Allen, and an employee named Tommy Bunn. Whatley forced Bunn to lie on the floor behind the service counter and held the .32 caliber revolver to Bunn's head, and he threatened to shoot Bunn if Allen did not comply with his demand for the money from the cash register. Allen placed the money in a paper sack, and Whatley took it. Whatley backed around to the front of the counter and fired two shots, one shot striking Allen in the chest from a range of 15 to 18 inches and a second shot striking the counter that Bunn was lying behind from a range of 8 inches. Allen pursued Whatley and fired his .44 caliber single-action pistol at him. Whatley left the store and encountered Ray Coursey, who had just arrived at the store in an automobile. Whatley held the revolver to Coursey and demanded a ride. Allen came out of the store and continued firing his pistol at Whatley. Whatley exited Coursey's automobile on the side opposite from Allen's position, and he fled on foot. At some point, Whatley was shot in the right knee. After Whatley ran away, Allen returned to the store, told Bunn to call 911, lay down on the floor, and died of internal bleeding.

II. Alleged Suppression of Evidence by the State

A. Background of the Claim

Whatley forced Bunn at gunpoint to lie on the floor next to the cash register during the robbery, and Bunn remained there until all of the shooting had stopped. The theory presented to the jury by the State at trial was that, as Whatley began backing away from the service counter, he fired twice, once at Allen at close range and once downward toward Bunn. Bunn's testimony under direct examination in the guilt/innocence phase was consistent with this theory, as he maintained that he had heard two shots fired before Allen stepped over him to pursue Whatley. Trial counsel then cross-examined Bunn by specifically referring to a statement Bunn made to police on the night of the murder, January 26, 1995. The written investigative summary counsel was referring to in his cross-examination reports that Bunn stated as follows on January 26:

[Whatley] moved off of me and backed around the counter, when he went around the counter and Ed come around over top of me going after him. I don't know where he was. I was still laying on the floor when I heard the shot.

Counsel did not read this statement aloud at trial but, instead, simply had the witness himself acknowledge that he did not tell the police in his January 26 interview that shots were fired before Allen stepped over him. Counsel specifically stated that it was the January 26 interview that he was relying on in forming his questions to Bunn. Bunn explained his account in his January 26 interview regarding the timing of the shots by stating that he was "upset" during that interview. Counsel, by pointing out to Bunn that Allen had not bled on him, was also able to get Bunn to admit on cross-examination that he did not know when Allen was shot. Whatley testified in the sentencing phase to a version of events different from Bunn's: Whatley claimed that he never intended to shoot anyone and that he fired at Allen only after Allen pulled out his gun.

At the habeas hearing, Whatley presented an audio recording² of an interview of Bunn that was conducted the day after the murder, January 27. Whatley obtained the recording through an Open Records Act request to the Griffin Police Department, which request was legally available only after Whatley's criminal case was concluded.³ Like the January 26 statement used by counsel at trial, part of the January 27 interview at least arguably suggests that Allen stepped over Bunn to pursue Whatley before any shots were fired. Bunn stated as follows in the January 27 interview:

[Whatley] done got the money and all, you know. I figured he's going on out, and that's when I see Ed go over me, and he went out, and that's when the shooting and all starts.

However, earlier in this January 27 interview, Bunn gave a different chronology, stating as follows:

Then [Whatley] got off me, and backed around the corner, you know. I guess he was going on back toward the door. I heard something start shooting. Then I seen Ed come across me, on around the corner, too. Next thing I know I just kept hearing, ya know, gun shots.

Thus, at the most, the January 27 interview contains two contradictory chronologies, one placing the shooting before Allen stepped over Bunn to pursue Whatley and one placing the shooting after. Furthermore, in between these two arguably contradictory chronologies in the January 27 interview, Bunn expressed uncertainty when asked specifically whether the shots began before or after Allen stepped over him and went around the corner of the counter. Bunn was then further asked, "Who started shooting?" He responded as follows: "I guess [Whatley]. But, you know, I don't know." He then provided the following explanation for his uncertainty: "[I]t happened so quick, and I'm all shook up, too."

Whatley argues that his cross-examination of Bunn would have been enhanced if counsel had been provided the January 27 interview, particularly because counsel could have emphasized that, although Bunn might have been confused because he was "upset" on January 26, he would have calmed down by January 27 and would have given a more accurate account of the crime. Whatley argues that the portion of the January 27 interview in which Bunn arguably indicated that Allen began to pursue Whatley before any shots were fired could have been used to show that Whatley did not enter the store with the intent to commit murder, which the jury might have found mitigating in the sentencing phase.

B. Procedural Default

The habeas court correctly found that this claim, at least as an initial matter, is barred by procedural default because it was not raised in the trial court or on direct appeal.⁴ However, the bar to procedurally defaulted claims can be overcome by satisfying the cause and prejudice test.⁵ Because the habeas court applied the cause and prejudice test in a manner we found questionable, we directed the parties to address that issue on appeal.

1. Alleged Cause for Failure to Raise the Claim Previously

The cause portion of the cause and prejudice test is satisfied where evidence was "concealed from [the defendant] by the State" at the time of trial and direct appeal.⁶ Thus, the cause prong of the cause and prejudice test would be satisfied in Whatley's case if the facts showed that trial counsel was not given notice of and access to the contents of the January 27 statement. Without any detailed analysis, the habeas court found that Whatley had failed to show cause for his failure to raise this claim in the trial court and on direct appeal, concluding that the claim "was available for presentation" at that time.

We find that the habeas court's finding of an absence of cause to excuse the procedural default was erroneous. In its analysis of the prejudice prong of the cause and prejudice test, which is discussed below, the habeas court found that "a review of trial counsel's cross-examination questions and Mr. Bunn's responses to these questions showed trial counsel's awareness of" the January 27 interview. A review of the trial transcript does not support this finding of fact. Trial counsel's cross-examination questions about Tommy Bunn's having failed to inform police that shots were fired before Allen began to pursue Whatley could have been derived from the January 26 interview, the January 27 interview, or both. However, trial counsel specifically stated in his cross-examination that he was relying on the January 26 interview. Although not discussed in the habeas court's order, the district attorney conceded in his habeas testimony that he had not been provided the January 27 interview by the police department and, therefore, that trial counsel would not have had access to it. Trial counsel, having passed away, was not available to give habeas testimony on the subject; however, the January 27 interview was not contained in trial counsel's file, and the defense investigator testified that he had not been aware that the interview existed. In light of the trial transcript and the uncontradicted habeas testimony, including an admission by the district attorney, we find that the habeas court's finding of fact that the January 27 interview was available to counsel at trial and on direct appeal was clearly erroneous.

The State's duty to disclose exculpatory evidence applies to every part of the State that is involved in the prosecution, which, of course, would include the police department in Whatley's case.⁷ Given the fact that the State bore this duty...