Death Penalty

• Publication year: 2012

Death Penalty

Josh D. Moore

[Page 109]

Death Penalty

by Josh D. Moore^*

I. Introduction

Between June 1, 2011 and May 31, 2012, the Georgia Supreme Court addressed several significant points of law in the context of death penalty litigation. The court grappled with two challenging speedy trial issues, one constitutional and the other statutory, in Phan v. State¹ and Walker v. State,² respectively. The court announced a new rule on the calculation of time limitations for impeachable convictions in Clay v. State.³ The court revisited the subject of burden of proof in mental retardation cases in Stripling v. State.⁴ And the court articulated a clear standard for evaluating prejudice in a claim of ineffective assistance of counsel at the sentencing phase of a death penalty trial in Humphrey v. Morrow.⁵

II. Cases

In Phan v. State,⁶ the Georgia Supreme Court addressed, on interim review for the second time, a pretrial case that has been pending in Gwinnett County since March of 2005.⁷ The claim advanced by Phan in this appeal was that his constitutional right to a speedy trial had

[Page 110]

been violated by pretrial delay attributable to a "'systemic breakdown' in the public defender system" that essentially left him unrepresented.⁸

Two lawyers were appointed by the Georgia Public Defender Standards Council (GPDSC) to represent Phan, but funding issues came to a head in 2007 when counsel requested approval for travel to Vietnam to develop evidence for both phases of trial. In 2009, Phan "filed a constitutional speedy trial demand and a motion to dismiss for the State's failure to provide sufficient resources for the defense."⁹ By April 2009, GPDSC had also stopped paying for attorney fees. The trial court denied the motions, and the case was certified for interim review.¹⁰ The court remanded the case with directions for the trial court to conduct a full hearing and enter findings on each of the Barker v. Wingo¹¹ factors.¹² The trial court conducted a full hearing pursuant to the court's directive in 2010 and, upon completion of that hearing, again denied the motion to dismiss and ordered that Phan's attorneys "be removed as counsel and that staff attorneys from the capital defender division [of GPDSC] be 'immediately assigned.'"¹³

At the outset, the court framed the case as one "address[ing] the consequences of a financially strained indigent defense system operating within a recession-era [s]tate budget."¹⁴ The court ultimately engaged in a fact-specific analysis of the speedy trial claim and affirmed the trial court's refusal to dismiss the indictment.¹⁵ The opinion hinged on the court's weighing of the second Barker v. Wingo factor: "reasons for the delay."¹⁶ Under this factor, the court evaluated Phan's claim that the reason for the delay was a "systemic 'breakdown in the public defender system'" that ought to weigh against the State.¹⁷ Citing its recent decision in Weis v. State¹⁸ (another death penalty interim appeal), the court affirmed the trial court's conclusion that such a breakdown had not

[Page 111]

occurred because there were other public defender counsel available to represent Phan.¹⁹

Phan also raised a claim that "his rights to counsel and due process [were] violated by the trial court's decision to replace [his counsel of choice] with staff attorneys from [GPDSC]."²⁰ The court rejected these claims, reiterating its earlier pronouncements establishing that a defendant's choice of appointed counsel can be overridden where sufficient "countervailing considerations" exist.²¹ The court distinguished Grant v. State²² (yet another death penalty interim appeal) where it concluded that "involving local counsel in [the] case was not a sufficient 'countervailing consideration' to justify removal of defendant's preferred counsel."²³ Here, the court found "compelling 'countervailing considerations'" insofar as "retaining current counsel would perpetuate the funding problems that have plagued this case thus far."²⁴ The court also noted that one of Phan's lawyers "relocated his practice to Charleston, South Carolina."²⁵ The court concluded this opinion by noting that it does not "endorse[] . . . the system that has led us down this tortuous path" and offering its "hope that those within the branches of government empowered to remedy these institutional problems will make it a priority to do so."²⁶

In Walker v. State,²⁷ the court addressed a statutory speedy trial claim on interim review.²⁸ The dispute in this case centered on the proper interpretation of the language in the Official Code of Georgia Annotated (O.C.G.A.) section 17-7-1710))²⁹ requiring absolute discharge "[i]f more than two regular terms of court are convened and adjourned after the term at which the demand for speedy trial is filed."³⁰ The court ultimately concluded, contrary to its prior cases, that the language in question should be construed to mean that three terms of court must convene and adjourn prior to an acquittal.³¹ Accordingly, the court

[Page 112]

affirmed the trial court's denial of Walker's motion to dismiss as "premature."³²

The State filed a notice of intent to seek the death penalty against Walker during the third full term of court after she filed her timely demand for trial pursuant to O.C.G.A. § 17-7-171.³³ During the fourth term, Walker filed a motion for discharge and acquittal, which the trial court denied as premature based on the fact that the filing of a notice of intent to seek the death penalty during the third term had the effect of "reset [ting] the statutory speedy trial clock, which will not start over 'until the convening of the first term following the completion of pretrial review proceedings in the Supreme Court under Code Section 17-10-35.1.'"³⁴

Acknowledging its interpretation to the contrary in previous "dicta" as well as a tension within the statutory language itself, the court ultimately concluded that interpreting the statute to mandate discharge and acquittal after only two terms of court would render the words "more than" mere surplusage.³⁵ The three-vote concurrence would have adhered to the court's earlier interpretation that only two terms need be convened and adjourned to warrant discharge.³⁶ The concurrence, however, also noted that Walker's counsel expressed no objection to the State's motion for continuance during the first term of court "subject to the fact that we filed a demand for a speedy trial."³⁷ The concurrence would have affirmed the trial court on the independent ground that this particular representation by counsel did not constitute "strict compliance" with the statutory requirement of announcing "ready for trial" at "both terms of court."³⁸

In Clay v. State,³⁹ the court addressed a complicated series of suppression issues on interim review as well as an issue of first impression dealing with how to calculate the ten-year period beyond which a prior conviction becomes presumptively inadmissible for impeachment purposes pursuant to O.C.G.A. § 24-9-84.1(b).⁴⁰ Clay asserted in the trial court that if the prior conviction at issue was more than ten years old before the time of the testimony to be impeached, the

[Page 113]

stricter balancing standard of subsection (b) should apply.⁴¹ The State, on the other hand, contended that the appropriate "end point" for calculation purposes was "the date of the crimes for which Clay will be tried in this case."⁴² The trial court sided with Clay on this issue and the supreme court affirmed, "adopt[ing] the date the witness testifies or the evidence of the prior conviction is introduced as the end point for determining whether a conviction falls within the ten-year limit prescribed by [O.C.G.A.] § 24-9-84.1(b)."⁴³

The prior ten-year-old convictions at issue in this particular appeal were Clay's own convictions that the State sought to introduce against him in the event that he elected to testify.⁴⁴ The trial court found "the probative value of Clay's prior convictions substantially outweighs their prejudicial effect" despite their age.⁴⁵ Clay contended on appeal, however, that the trial court's failure to enumerate specific factors supporting this conclusion amounted to an abuse of discretion ⁴⁶ The court agreed and remanded, holding that "a trial court must make an on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect. . . ."⁴⁷

The suppression issues in the case primarily dealt with a series of four statements made by Clay to police officers.⁴⁸ The trial court found, among other factors, that the Miranda warnings were read to Clay "in such a 'super-speed' manner that the warnings likely could not have been identified 'as anything more than gibberish.'"⁴⁹ The trial court also concluded that the first three statements were involuntary as a result of Clay's level of intoxication. Despite the fact that it was obtained in violation of Clay's Miranda rights, the trial court ruled the fourth statement admissible based on the fact that it was given voluntarily. The court reversed on the narrow issue of the admissibility of this fourth statement, reiterating the general rule that statements obtained in violation of Miranda are not admissible for any purpose other than impeachment.⁵⁰

[Page 114]

The court also affirmed the trial court's order below suppressing items of bloody clothing seized from Clay's "personal effects bag" in the hospital.⁵¹ The State advanced two theories in support of the seizure of this evidence: inevitable discovery and plain sight.⁵² The court ultimately rejected both.⁵³ The State's inevitable discovery argument was that an inventory search of Clay's belongings at his formal arrest would have revealed the clothing items.⁵⁴ The court rejected this argument based on the fact that the State failed to produce any evidence of "routine inventory procedures for...