Zant v. Moon, s. S93A1925

• Decision Date: 28 February 1994
• Docket Number: S93X1926,Nos. S93A1925,s. S93A1925
• Citation: 264 Ga. 93,440 S.E.2d 657
• Parties: ZANT v. MOON. MOON v. ZANT.
• Court: Georgia Supreme Court

Page 657

440 S.E.2d 657

264 Ga. 93

ZANT v. MOON.

MOON v. ZANT.

Nos. S93A1925, S93X1926.

Supreme Court of Georgia.

Feb. 28, 1994.

Reconsideration Denied March 31, 1994.

Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Mary Beth Westmoreland, Sr. Asst. Atty. Gen., State Law Dept., Atlanta, for Zant.

Charles W. Surasky, Smith, Currie & Hancock, Brian Mendelsohn, GA Resource Center, Atlanta, for Moon.

Frederick L. Wright, Fredric W. Stearns, M. Craig Hall, Smith, Currie & Hancock, Atlanta.

CLARKE, Chief Justice.

The facts of this case are set out in our opinion on direct appeal, Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988). Larry Eugene Moon was convicted of murder and armed robbery in Catoosa County and sentenced to death. Moon filed an application for writ of habeas corpus on January 13, 1992, in the Superior Court of Butts County. An evidentiary hearing was held on March 15, 1993, and the parties filed briefs thereafter. Petitioner asserted 51 grounds for relief, and the trial court granted relief on three issues: (1) the state's improper use of a peremptory strike during jury selection; (2) the incomplete investigation of the petitioner's mental condition and the resulting lack of mitigating evidence at the sentencing phase; and (3) the errors concerning the DeJose incident, see Id. at 749, 375 S.E.2d 442, introduced in aggravation of punishment during the sentencing phase of the trial. The state appeals. The habeas court reserved ruling on Petitioner's remaining claims. From those remaining claims, Petitioner appeals.

Case No. S93A1925.

1. In his first appeal to this court, Moon argued that the prosecutor's use of a peremptory strike to excuse the only black juror on the panel violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We held that since Moon is white, he lacked standing to complain of the prosecutor's peremptory challenge of a black juror. Moon, 258 Ga. at 754(10), 375 S.E.2d 442. While Petitioner's application for certiorari was pending before the United States Supreme Court, that Court decided Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), holding that a white defendant has standing to challenge the prosecution's use of a peremptory challenge to excuse a black juror. Because Powers was decided before Moon's petition for certiorari was dismissed, Petitioner is entitled to the retroactive effect of that decision. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Petitioner raised the Batson claim before the habeas court. That court ruled that this case presents the same facts as Congdon v. State, 262 Ga. 683, 424 S.E.2d 630 (1993), ¹ and granted relief for Petitioner.

On appeal, Moon argues that at the habeas court level, the State argued only that his Batson claim was procedurally barred and therefore the State's arguments addressing the merits of the Batson claim are waived on appeal. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled upon by the trial court. Velkey v. Grimes, 214 Ga. 420, 421, 105 S.E.2d 224 (1958); Butler v. State, 172 Ga.App. 405(1), 323 S.E.2d 628 (1984). However, in its supplemental return and answer, filed on March 16, 1993, the State specifically denied Petitioner's claim that the state improperly excused a juror based on impermissible racial motivations. Furthermore, the trial court ruled on the substantive issue of the Batson claim.

While reviewing courts will not consider questions which the record does not show were raised and determined in the trial court [cits.], in the absence of a waiver, all questions will be considered as having been raised and determined in the trial court as judge and jury, which were made by the pleadings and supported by the undisputed evidence, even though the application of some appropriate legal principle might not have been then specifically urged in support of a legal contention. It is "not only within the authority of the [appellate] court, but it is its duty, when a case is before it on a direct writ of error complaining of a judgment, to reverse the judgment when it is apparent from the record that in point of law the action was not maintainable, if the judgment was in favor of plaintiff, or the plea constituted no defense, if the judgment was in favor of the defendant." Kelly v. Strouse, 116 Ga. 872(5), 887 (43 S.E. 280); Horsley v. Woodley, 12 Ga.App. 456(2), 461 (78 S.E. 260).

Investors Fin. Co. v. Hill, 194 Ga. 236, 242, 21 S.E.2d 220 (1942). The State did not waive the substantive arguments of the issue on appeal because the habeas court ruled on the merits of the Batson claim.

On the jury panel for Moon's trial there was only one African-American, Ms. Florence Harris. The prosecutor learned that Ms. Harris knew defense counsel, who had done legal work for her brother and father, and that she saw him once or twice a week. Upon further questioning, Ms. Harris revealed that she had a deep-seated, conscientious objection to the death penalty. When the prosecutor asked if the facts justified a death sentence would her personal beliefs override the facts so that she could not impose the death penalty, Ms. Harris responded, "Yes." Defense counsel then asked her if she could put aside her convictions and vote for the death penalty if the facts and the judge's instructions warranted it. She then responded that she could vote for the death penalty if the situation was appropriate.

The prosecution excused Ms. Harris. Counsel for Moon objected, noting that Ms. Harris was the sole African-American on the jury panel. The trial court allowed the peremptory strike because

she vacillated so much, that certainly she started out saying she would not impose the death penalty ... and only after [defense counsel] threw a whole lot of rehabilitation by the defense that she became eligible to serve.

Before the jury was sworn, the trial court held an evidentiary hearing and heard arguments from defense counsel that the strike was racially motivated and that the state should be required to provide racially neutral reasons for the strike. The prosecutor responded that he excused Ms. Harris because she vacillated in giving her answers regarding the death penalty. Furthermore, the prosecutor said that defense counsel had represented both Ms. Harris's father and brother ² and the potential juror seemed confused by the sometimes intimidating questions of defense counsel. The prosecutor further noted that a political controversy had created a great deal of anger and hostility in the black community toward the Sheriff's office and that Ms. Harris's father had been interviewed as a witness in the murder investigation and he believed her family may have been in the forefront of the protests. In conclusion, the prosecutor noted, he would excuse any potential juror under those circumstances, whatever their race. Finally, he noted that he had a personal feeling that Ms. Harris seemed hostile to the state. Finding that there had been no showing of any improper action by the state, the trial court denied the Batson challenge. The habeas court disagreed, finding that this case was controlled by this court's decision in Congdon and that the prosecutor's actions violated Batson.

The court erroneously held that this case was controlled by Congdon. In Congdon, we held that the Batson rule was violated where "the venirepersons were struck for no reason other than that they were black citizens of Ringgold." Congdon, 262 Ga. at 685, 424 S.E.2d 630. It is apparent from the record that the evidence introduced at trial showed that the prosecutor cited race-neutral reasons for excusing the juror. Unlike Congdon, the juror was struck not because she was a black citizen of Ringgold but because her father had been interviewed as a witness in a murder case from which much hostility had been publicly expressed towards the local law enforcement community. Thus, the prosecutor's justification for striking the juror was not the result of a stereotypical belief that all African-American residents of Ringgold were biased against the sheriff, but the prosecutor's actual knowledge of her family's connection with the underlying controversy. We find that the trial court had sufficient evidence to conclude that the peremptory strike was not racially motivated. We therefore reverse the habeas court.

2. The habeas court also found that Petitioner's trial counsel were ineffective at the sentencing phase of the trial. Two lawyers, appointed by the court, represented Petitioner at trial. They hired a private investigator but did not use him to search for mitigating evidence. Petitioner's mother and sister provided names of friends to contact. She discouraged counsel from looking into Petitioner's juvenile and school records since they showed a history of trouble. Trial counsel made a decision not to rely on those records to avoid bringing his criminal history into issue. Petitioner was generally cooperative with counsel but at times appeared reticent.

Trial counsel hired a psychologist, Dr. Howard Albrecht, and a psychiatrist, Dr. Dave Davis, to examine Moon. Most of the background information that they gave to Dr. Davis came from Moon's mother and sister. Dr. Davis diagnosed Moon as having an antisocial personality disorder and determined there were no signs of brain damage. Trial counsel decided not to pursue the issue any further because Dr. Davis felt his testimony could only hurt the defendant.

The habeas court found that trial counsel did a reasonable job preparing pretrial motions and representing Petitioner in the guilt-innocence phase of the trial; however, the court concluded that trial counsel failed to provide effective assistance during the sentencing phase. Particularly important to the court was the lack of mitigating evidence that would have been helpful to experts' evaluation of Pe...