CALDWELL, WARDEN v. EDENFIELD; And Vice Versa

890 S.E.2d 238, 316 Ga. 751

• Court: Supreme Court of Georgia
• Decided: June 29, 2023
• Docket: S23A0260, S23X0261
• Status: Published

Opinion

316 Ga. 751 FINAL COPY

S23A0260, S23X0261. CALDWELL v. EDENFIELD; and vice versa.

BETHEL, Justice.

In 2009, a jury convicted David Edenfield for the 2007 sexual

assault and murder of six-year-old Christopher Barrios, and the jury

imposed a death sentence for the murder. Lead trial counsel, joined

by other attorneys, represented Edenfield on direct appeal, and, in

June 2013, this Court affirmed Edenfield’s convictions and

sentences on direct appeal. See Edenfield v. State, 293 Ga. 370 (744

SE2d 738) (2013), disapproved on unrelated grounds by Willis v.

State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018).

Edenfield subsequently filed a petition for a writ of habeas

corpus on December 17, 2014, which he amended on February 12,

2018. In his petition, he asserted that he was ineligible for the death

penalty because he is intellectually disabled and that trial counsel

provided constitutionally ineffective assistance during his trial in several ways, including by failing to present evidence of Edenfield’s

alleged intellectual disability in the sentencing phase as mitigating

evidence. He also contended that appellate counsel had provided

ineffective assistance in several ways. The habeas court held an

evidentiary hearing on the petition on November 18 to 22, 2019. In

a final order entered on August 29, 2022, the habeas court denied

relief on all claims except for the ineffective assistance of trial

counsel claim concerning counsel’s presentation of evidence of

Edenfield’s alleged intellectual disability as mitigating evidence in

the sentencing phase. Based on that claim, the habeas court vacated

Edenfield’s death sentence.

The Warden has appealed in Case No. S23A0260, and

Edenfield has cross-appealed in Case No. S23X0261. In the

Warden’s appeal, we reverse the habeas court’s decision to vacate

Edenfield’s death sentence. In Edenfield’s cross-appeal, we affirm in

part; however, as explained in Division II (C) below, we conclude as

to Edenfield’s claim regarding trial counsel’s alleged deficiency

concerning certain allegedly mitigating circumstances that

2 additional findings of fact and conclusions of law are required, and

we therefore remand Edenfield’s case to the habeas court for further

proceedings consistent with this opinion.

I. Factual Background

Although we set forth extensive additional evidence below

regarding Edenfield’s intellectual functioning and other issues, we

begin with a brief summary of the facts of his case. The evidence at

trial showed that Edenfield’s intellectually disabled son, George

Edenfield, lured a six-year-old boy into his room and then

penetrated the child orally and anally while Edenfield held the child

down, attempted to penetrate the child anally, and rubbed his penis

against the child and ejaculated on him. As George Edenfield then

began to strangle the child after the child threatened to tell his

family about the assault, Edenfield placed his hands over George’s

hands to see what it would feel like to participate in a murder.

Edenfield’s wife, Peggy Edenfield, masturbated as she watched the

attack. Edenfield’s intellectually disabled daughter, Minnie

3 Edenfield, was not involved in the crimes.

II. Ineffective Assistance of Trial Counsel Claims

An ineffective assistance of trial counsel claim requires a

habeas petitioner to show that his or her trial counsel rendered

constitutionally deficient performance and that actual prejudice of

constitutional proportions resulted. See Strickland v. Washington,

466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith

v. Francis, 253 Ga. 782, 783-784 (1) (325 SE2d 362) (1985). To show

actual prejudice from any alleged deficiency or combination of

deficiencies, a habeas petitioner must show that “there is a

reasonable probability (i.e., a probability sufficient to undermine

confidence in the outcome) that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Smith, 253 Ga. at 783 (1) (citation omitted). In reviewing a lower

court’s decision on such a claim, we accept the court’s findings of fact

unless clearly erroneous, but we apply the law to the facts de novo.

Strickland, 466 U. S. at 698 (IV); Head v. Carr, 273 Ga. 613, 616 (4)

4 (544 SE2d 409) (2001). The question of prejudice in the context of

the sentencing phase of a death penalty trial involves this Court’s

determining, and doing so de novo, whether there is a reasonable

probability of a different outcome, which in the context of the

sentencing phase means whether “‘there is a reasonable probability

that at least one juror would have struck a different balance’ in his

or her final vote regarding sentencing following extensive

deliberation among the jurors.” Chatman v. Walker, 297 Ga. 191,

205 (II) (C) (773 SE2d 192) (2015) (quoting Wiggins v. Smith, 539

U. S. 510, 537 (III) (123 SCt 2527, 156 LE2d 471) (2003)).

An ineffective assistance of trial counsel claim must be

considered with a view to the impact of any deficiencies in trial

counsel’s conduct on the trial’s outcome as a whole, and thus our

discussion below addresses each of the individual claims of

ineffective assistance in the appeal and the cross-appeal while

always keeping in mind how the individual claims might relate to

one another or build on one another. See State v. Lane, 308 Ga. 10,

15-16 (1) (838 SE2d 808) (2020) (“The United States Supreme Court

5 has told us explicitly that we must consider prejudice collectively in

the context of ineffective assistance of counsel and Brady[1]

prosecutorial misconduct claims.”).

Upon a careful review of the trial and habeas records, we

conclude that counsel did not perform deficiently in several respects

and that, even assuming that trial counsel performed deficiently in

the ways indicated in the discussion below, the absence of their

deficiencies in this case would not in reasonable probability have led

to a different outcome of either phase of Edenfield’s trial. See

Strickland, 466 U. S. at 697 (IV) (noting that a court need not

address counsel’s performance if an ineffective assistance claim can

be denied based on a lack of prejudice alone); Lajara v. State, 263

Ga. 438, 440-441 (3) (435 SE2d 600) (1993) (same). See also Ford v.

Tate, 307 Ga. 383, 406 (II) (C) (1) (835 SE2d 198) (2019). However,

as discussed below in subdivision C, we conclude that the habeas

court’s final order fails to provide adequate findings of fact and

conclusions of law to allow us to resolve some of Edenfield’s claims

1 Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

6 of ineffective assistance of trial counsel related to several categories

of allegedly mitigating evidence, and we remand the case for

consideration of those claims.

A. Proving Intellectual Deficits in the Sentencing Phase

The habeas court concluded that Edenfield’s trial counsel

rendered deficient performance in preparing and presenting

evidence of Edenfield’s intellectual deficiencies and that prejudice to

his defense of constitutional proportions resulted from counsel’s

deficiencies as to the jury’s sentencing choice. Below, we briefly

discuss trial counsel’s preparation for trial and explain our decision

to assume that trial counsel performed deficiently under

constitutional standards for the purpose of our overall analysis of

this claim. Following that, we compare the evidence regarding

Edenfield’s intellectual functioning that was actually presented at

trial with the evidence that Edenfield has presented in the habeas

court and explain why we conclude that consideration of Edenfield’s

new evidence regarding his intellectual functioning would not in

reasonable probability have caused the jury to impose a sentence

7 less than death.

1. Assumption that Counsel Performed Deficiently

From our review of the trial and habeas records, we have a

fairly clear view of how trial counsel, particularly lead counsel

James Yancey, conducted themselves. We know that counsel hired

an investigator and a mitigation specialist.2 And we know that the

mitigation specialist prepared a written report, which must have

been in trial counsel’s possession at the time of the trial, given the

fact that the report was disclosed by counsel to a psychologist who

testified for the State. This mitigation report, along with mitigation

witness interview summaries and a mitigation timeline, appears

now in the habeas record, and it summarizes, among other things,

what some of Edenfield’s family members and other associates

reported to the mitigation specialist, and it also summarizes

Edenfield’s school records, including his scores on various IQ and

2 The mitigation specialist, Janann McInnis, testified at the habeas hearing that she had previously worked on 50 to 60 death penalty trials and on 50 to 60 death penalty habeas cases. We do note also, though, that she was incapacitated for some time shortly before Edenfield’s trial. 8 other tests.

We also learn from the record that Yancey had a highly

strained relationship with the trial court in the pretrial period of

this case. As happened in other death penalty cases around that

time, funding for criminal defense efforts was sometimes long-

delayed, and Yancey complained loudly and often about the matter.

The habeas record also reveals some communications between

Yancey and several potential expert witnesses. The record shows

that Yancey succeeded in obtaining an evaluation of Edenfield by

Dr. Daniel Grant, a psychologist; however, Dr. Grant withdrew from

the case once he realized that he had previously examined Edenfield,

his wife, and his children in 1986 in connection with a Department

of Family and Children Services (“DFCS”) investigation into claims

by the children that both Edenfield and his wife had been “fondling

them, abusing them and having sexual relations with them.” Yancey

then communicated with Dr. Jane Weilenman, also a psychologist;

however, Dr. Weilenman also withdrew from the case, apparently

due to Yancey’s failure to communicate properly with the trial court

9 about transporting Edenfield to the county jail in Savannah for her

to evaluate him. Finally, about a month before the guilt/innocence

phase began, Yancey received a recommendation for and hired Dr.

James Stark, who testified at trial. However, Dr. Stark contended

in his habeas testimony that he was never given a response to his

pretrial request to Yancey for additional information about

Edenfield.

In light of the habeas court’s findings regarding trial counsel’s

deficient performance and the fact that the record is less clear on the

question of the reasonableness of trial counsel’s pretrial conduct3

3 It is worth noting that were we to conduct a full analysis of the reasonableness of trial counsel’s conduct in preparation for trial we would be required to consider the fact that Georgia law continues to place the burden on a criminal defendant to prove intellectual disability beyond a reasonable doubt in order to gain a full exemption from the death penalty in the guilt/innocence phase. See OCGA § 17-7-131 (c) (3), (j) (providing for a life sentence for any defendant who is convicted but can prove his or her intellectual disability beyond a reasonable doubt in the guilt/innocence phase of his or her death penalty trial); OCGA § 17-7-131 (a) (2) (as amended in 2017 to replace the term “mentally retarded” with the term “intellectual disability” and to renumber paragraphs but otherwise without making any change to the relevant definition). That burden might significantly inform the scope of reasonable trial strategies and decisions for the guilt/innocence phase when representing defendants, like Edenfield, with assessed intellectual capacity at or near the borderline of a diagnosis of disability. Meanwhile, a different strategic calculation would apply in deciding whether, despite the burden of proof on

10 with regard to the issue of Edenfield’s intellectual functioning than

it is regarding the impact of any deficiencies in that conduct, we

assume in our discussion below that trial counsel performed

deficiently in preparing and presenting evidence regarding

Edenfield’s intellectual functioning.

2. Prejudice Suffered in the Sentencing Phase Regarding Intellectual Functioning

In weighing the prejudice to Edenfield in the sentencing phase

of his trial, we compare the evidence in that original trial with the

evidence presented in Edenfield’s habeas proceedings. Below is first

a summary of the relevant evidence presented at Edenfield’s trial,

then a summary of the relevant evidence presented in Edenfield’s

habeas proceedings, and then finally an analysis of whether there is

a reasonable probability that Edenfield’s new evidence would have

changed his sentencing phase verdict if it had been presented at his

original trial. See Smith, 253 Ga. at 783 (1).

this issue during the guilt/innocence phase, presentation of evidence of the defendant’s intellectual challenges at some point during the trial might nevertheless have strategic value as a means of gaining sympathy with the jury in the sentencing phase. 11 a. Evidence Regarding Intellectual Functioning Actually Presented at Trial

Our summary here of the evidence presented at trial related to

Edenfield’s sentencing would be incomplete without first noting that

the jury had already heard perhaps the most influential piece of

evidence regarding Edenfield’s intellectual abilities as part of the

State’s proof of his guilt, which was his video-recorded interviews

with investigators. In these interviews, Edenfield carried on lengthy

conversations about the crimes, offering plausible explanations for

how he was not involved and refusing to submit to a polygraph

examination. He spoke with some mumbling and the use of idioms

and often at a fast pace, but he appeared at all times to fully

understand what was being discussed, and his responses to the

investigators were cogent.4 The interviews with investigators would

4 Although we have reviewed these video-recorded interviews again as

part of this appeal, we note that this Court’s members in 2013 shared a similar assessment of Edenfield’s intellectual capacity displayed in the interviews, stating on direct appeal: “But our review of the recordings of his statements reveals that he had adequate capacity to understand the context of the assurances [given to him by investigators] and that he did, in fact, understand that context.” Edenfield, 293 Ga. at 375 (2) n.7. 12 not suggest the presence of an intellectual disability to a layperson.

Dr. Stark testified in the sentencing phase of trial that he had

examined Edenfield on two occasions “to see what his mental

functioning was, to look at competency issues, criminal

responsibility issues and in general to assess his mental state.” He

explained: “We did clinical interviewing, we did observations, I

looked at several CDs or DVDs of interviews, investigative

interviews. I’ve looked at lots of materials concerning history, work

history, school history.” Dr. Stark also explained that he gave

multiple psychological tests over the course of eight hours, including

the Minnesota Multiphasic Personality Inventory (“MMPI”), the

Slosson Intelligence Test, the Wide Range Achievement Test, a

mental status test, and the Rorschach test. He testified that

Edenfield’s school records showed an IQ in the 70s, that Edenfield

tested with an estimated IQ of 83 in Dr. Stark’s use of the Slosson

test, and that Edenfield’s IQ was “probably in the 80s, which is low

average.” Dr. Stark explained that Edenfield was “reading at a fifth

grade level, spelling at a fifth grade level and solving math at a

13 second grade level.”

Dr. Stark explained that he had given “the newest version of

the MMPI” where “the computer [wa]s reading the questions out

loud to” Edenfield while he looked at the questions. He then testified

regarding the MMPI scores:

He is out of the normal range on scales measuring paranoia and schizophrenia. If I drew a grap[h] of these scales you’d see that the highest points are in paranoia and schizophrenia. No signs of alcohol or drug problems. No signs of self pity or self blame. But a lot of signs of social introversion, quietness unto himself and signs of notions of persecution and grandeur and ideas of reference and suspicion, fears that others are talking about him and feeling that he’s got a bad lot in life. So we’re getting multiple signs of paranoid schizophrenia. On the other scales measuring bizarreness, he is way, way up there, about the ninety-ninth percentile. And so he’s checking some items that appear incredibly bizarre. He has low self esteem, social discomfort, multiple fears.

He then explained these particular findings a bit further.

Dr. Stark next explained that Edenfield “had not [had a] very

productive work history or school history,” that he had “kind of

plod[ded] along,” that he “may have been the wage earner in the

family,” and that he had “a boring kind of life style” but “had a job.”

14 Dr. Stark described Edenfield’s long tenure both at civilian jobs and

in the military as “demonstrating that he c[ould] have stability,” and

he noted that Edenfield had been with his wife for “thirty, forty

years” and “seemed to have some kind of commitment to [his] family

even though they appeared quite disturbed.”

Dr. Stark explained that responses on the Rorschach test “are

hard to fake and hard to control” and that Edenfield’s responses

showed no signs of malingering, showed signs of “[i]rrationality,”

showed “poor contact with reality, that there may [have been]

feelings of split — like with schizophrenia,” and showed that

Edenfield’s symptoms might not be obvious to an observer but were

“just below the surface.” He also explained that Edenfield’s drawings

of himself with his family suggested that “he s[aw] Peggy[,

Edenfield’s wife,] as dominant and George as somewhat stronger

than himself.”

Dr. Stark’s recommendation for treatment of Edenfield

included:

[R]eduction in conflicts, reduction of pressures, reduction

15 of stresses, some work on sexual kind of problems within that whole household. Reducing the general trauma, we’re getting signs of post traumatic stress. I have the impression that the family is very traumatized probably about a whole bunch of things. Reduction of that quote, “craziness,” end of quote, in his environment would help a great deal. And stabilization of the family and continued stability of work and appropriate kind of psychotropic medication.

Finally, Dr. Stark explained that he had reviewed the report of

the State’s psychologist, that the report was based on merely a short

interview and no testing, and that it did not identify any psychosis

like he had himself identified by obtaining “much more data.”

Maggie Carroll, Edenfield’s older sister, testified that

Edenfield had been a normal child who was never disrespectful to

his parents, was mentally “slow,” did not have access to special

education, suffered a head injury as a child and never received

treatment because of the family’s poverty, was a good father and

husband who cared for his family, had two children who were both

mentally “slow,” took care of his mother with whom he was very

close, worked every day that he could, went to church, had never

been in trouble, and was a good person who did not deserve the death

16 penalty.

Testimony from Carson Shattuck, who had met Edenfield 25

years earlier in the National Guard, showed that Edenfield had

served in the Army and Army Reserves before enlisting in the

National Guard, worked as a cook in the National Guard, was very

“slow” but was dependable and loyal, obtained a driver’s license for

the first time while in the National Guard, required assistance to do

some of his military paperwork, became a sergeant only because the

military discontinued the grade of specialist, did not become a

sergeant based on merit and would not have reached that grade in

more modern times, earned several medals, was trusted and was

willing to do whatever was asked, would sometimes have to be told

several times to do a task because he was “slow,” usually understood

the command structure but sometimes needed it explained to him,

was always together with his family and appeared to have a good

relationship with them, had children who were also “slow,” and was

someone with whom the crimes seemed inconsistent.

Testimony from five witnesses showed that, while he was jailed

17 pretrial, Edenfield was a good inmate who complied with the rules

and never caused problems, respected authority and complied with

directions, did not receive any disciplinary reports, was in protective

custody only for his own safety, was always friendly, adapted well to

incarceration, and was not a threat to other inmates. Edenfield’s

former probation officer testified that Edenfield completed his

unsupervised probation without any incident.

Testimony from Delores Anderson, who had known Edenfield

for 25 years as a relative by marriage and had been his boss for 15

years, showed that Edenfield was a good father, took his son to

baseball games, went to “gospel sings,” took care of his mother, was

a “very good” and “dependable” worker, was responsible for duties

like taking out the trash, cleaning the parking lot, and cooking,

“could pretty much do whatever [she] needed him to do,” did not

work the cash register only because she had a practice of having the

female employees do that job, would work both late and on his days

off when asked, “might [have been] a little slow,” and had to be

helped in learning tasks sometimes.

18 Testimony from Florence Dees, who had known Edenfield since

1975, showed that he treated his mother very well, was concerned

about paying bills and caring for his family, and was a good and

respectful neighbor. She stated: “I don’t think [Edenfield] could do

brain surgery or anything but, I mean, he took care of his family as

good as he could. . . .” She explained that Edenfield would come to

her house to pay her mother-in-law what he owed to her on his

mortgage and that they “had to get on [him] a couple of times but

[that] he got pretty good with paying on time.”

The State then presented testimony from its own psychologist,

Dr. Philip Barron. Dr. Barron explained that he had reviewed the

video-recording of Edenfield’s final police interview, his school

records, his work records, Dr. Stark’s report, and a “mitigation

report.” Dr. Barron also interviewed Edenfield, and he consulted

with the health counselor at Edenfield’s jail, who described him as

not “requiring any mental health services or medication” and as

being “the best behaved inmate in the detention center.” He testified

that he considered Edenfield’s video-recorded interview to be a

19 “strong indication” that he “demonstrated no signs of any kind of

significant mental illness.” He noted that Dr. Stark’s report stated

that Edenfield was not intellectually disabled, with an IQ

somewhere in the “low 80s,” and he stated that that view “seemed

consistent with Mr. Edenfield’s presentation.” He testified that the

testing results in Edenfield’s school records “were all in the

borderline range” and that one “evaluator who had seen him at some

point . . . obtained average, an average IQ.” He opined: “So I thought

low average [IQ] seemed about right.” He noted that it would have

been “highly unusual” for someone to have such a well-documented

record ranging from school to work to the military and yet have no

indication of mental health services if the person indeed “had a

serious mental illness.” Regarding Dr. Stark’s conclusion that

Edenfield suffered from paranoid schizophrenia, Dr. Barron

testified:

That’s totally inconsistent. A person with paranoid schizophrenia[,] as Dr. Stark said[,] in a florid state, which seems a fully manifested psychosis, they’re going to be exhibiting disorganized speech, prominent hallucinations, they’re going to be very delusional.

20 They’re going to have an obvious problem in interacting with the world in a reality based manner. It’s going to be quite obvious.

He concluded:

[T]here’s nothing about his mental health picture in terms of either intelligence or any kind of mental illness that would get in the way of him being able to differentiate right from wrong just like any other normal person.

b. New Evidence Presented in the Habeas Court

As noted, the evidence described above was presented at

Edenfield’s trial. We turn now to the consideration of the evidence

offered in the first instance in the habeas proceeding. At the hearing

in the habeas court, Edenfield presented live and affidavit testimony

from Sharon Phillips, Edenfield’s sister-in-law. She testified that

her sister Peggy, Edenfield’s wife, met Edenfield “during special

education class” and that Peggy “was in special class because she

was mentally challenged, mentally disabled.” When asked if

Edenfield appeared to have a mental disability, she responded: “Yes,

he did. It was obvious. . . . He was always childlike childish, slow in

the same sense that my sister was, very slow, very — took

21 everything literally.” She stated that neither Peggy nor Edenfield

had a driver’s license at first and that Edenfield only got one

“probably in his 30s” after being taught to drive by her father over

the span of “a decade and a half” and going “regularly to take the

test.” She recounted that Edenfield would exaggerate when talking

about his duties while serving in Vietnam, even saying outrageous

things like “that he was the helicopter pilot that flew President

Nixon from Hanoi to Washington on a regular basis.” She explained

that her mother did a great deal for Peggy and Edenfield, including

taking them to pay bills, teaching them how to pay bills, teaching

them how to plan what grocery items to shop for, and teaching

Edenfield how to cook, which he did for his family “a lot” once

Edenfield’s mother “moved out and they had the whole house to

themselves.” She testified that her mother was at Edenfield’s house

“every day” doing chores for them, like helping with the children,

painting their house, putting down linoleum flooring in two rooms,

and teaching Peggy to do household chores. She testified that she

helped Peggy and Edenfield find their new home when the family

22 was forced to move because of George Edenfield’s sex-offender status

and that she helped them decorate once they moved in. Phillips also

indicated that her brother would sometimes help Peggy and

Edenfield financially and that her brother was present when Peggy

and Edenfield signed the lease for their new home, which she had to

explain to them. She testified that her boyfriend “had to hook up the

washer and dryer” for Peggy and Edenfield and then later had to set

their heater for them when the season changed. On cross-

examination by the Warden, she acknowledged that Edenfield never

received disability benefits from Social Security, “was able to keep a

job,” was in the National Guard for about 20 years, wrote letters to

her from jail (but she described them as “all one sentence, no space

between words”), and read the Bible but did not generally read “[a]s

a hobby.”

Rhonda Carmichael gave both live and affidavit testimony in

the habeas court. She explained that she “first met [Edenfield] in

elementary school.” She described him as being “[d]isruptive” and

having a hard time focusing and as being “in the lowest” reading

23 group. She stated that he had a hard time following instructions,

and she explained: “The most things that I remember were going to

lunch getting out of line, not following direction, not resting after

lunch, getting up out of your seat when you weren’t supposed to.”

She stated, “He was pretty ostracized by the other children,”

probably because he was “different,” had trouble following

directions, and had “extremely poor hygiene.” She explained that

she was the human resources director at a hospital where Edenfield

later worked as “a houseman,” which she described as “the lowest

job on the totem pole.” She indicated that his hygiene remained poor

as an adult. She stated, “Because I’ve always known David to be

mentally challenged, it is my opinion that he would have never

moved up the ranks at the hospital.” Finally, she explained that he

was fired from his job at the hospital when he was absent without

explanation after he was incarcerated on a charge she did not

specify.

Phoebe Brunswick testified that Edenfield came to work at

Southeast Georgia Medical Center “in ’92 to ’93.” She explained that

24 she worked at the hospital as an “[e]nvironmental service

supervisor” and was Edenfield’s boss. She stated that Edenfield was

responsible for things like collecting trash, mopping, and stripping

and refinishing floors in his assigned area. She explained that he

“was slower as far as going to do [a] task and getting it done,” that

he sometimes needed reminders to do things like putting out the

sign for wet floors, and that he required more supervision than her

other employees. She acknowledged that her reviews of him in his

employment record mostly indicated “good,” with just one entry in

his record indicating “very good,” and she explained that there was

a higher category for “excellent” and described the category of “good”

as meaning that “they completed their work, didn’t have any real

issues with them.” Finally, she stated: “When I first met him . . . I

could tell that — I mean, I’m not a genius, but I could just look and

see there was a difference in him. Like I said, eye contact. He just

got his paper [with work assignments] and went up to the floor, you

know.”

Mary Gail Tanner gave live and affidavit testimony indicating

25 that she had worked with Edenfield at Burger King and then at

Wendy’s, starting when she was 15 years old, and that she

“considered him like a grandfather.” She testified: “Even back then,

it was obvious to me that [Edenfield] was very slow and had a mental

disability. . . . I’ve always thought of him as a child in a man’s body.”

Regarding his work duties, she stated: “He was like the porter,

maintenance, when you do, like the maintenance part of the job.”

She described the maintenance portion of his job as involving things

“such as changing the light bulbs.” She explained that she or another

employee “would stay on top of him and make sure he had enough”

hamburgers being made when he worked on the broiler during the

lunch rush and that, when he was cleaning, she “just stayed on top

of him and checked behind him when he had done it and ma[de] sure

it was in a timely fashion.” Tanner explained that Edenfield was

sometimes sent to the nearby Walmart to buy supplies but that he

“needed clear instructions” beforehand. She claimed that he was

unable to work the register because it was “too multitasking” and

that he could not make salads because it “required something where

26 you had to measure individually.” On cross-examination by the

Warden regarding Anderson’s trial testimony about why Edenfield

had not worked the cash register, Tanner admitted that such

decisions were up to Anderson.

Mark Newman testified both live and by affidavit. He

explained that he had worked for DFCS and had “investigated at

least two cases concerning David and Peggy Edenfield and the

children, George and Minnie,” with the first “related to child neglect”

and the second “related to sexual abuse of the children and sexual

involvement of family members.” He explained that he had been

informed by school professionals that Edenfield and his wife were

“mentally challenged.” He stated:

All of the Edenfields — David, Peggy, Minnie and George — were very mentally impaired. Minnie didn’t have the cognitive ability to understand that she needed to put clothes on before she went outside. George wasn’t much better. . . . David had very serious mental impairments, but unlike others in his family, he was employable.

He stated that Edenfield and Peggy appeared not “to recognize that

the behaviors of the children or themselves were causing harm or

27 potential harm” and appeared “unable to protect the children from

others in the community that may prey upon them.” He explained

that his investigation encompassed accusations about Minnie’s

being “victimized sexually by her mother, brother, cousin, and

neighbor,” and he testified: “There were allegations that David may

have also been involved, but I was never — I never found evidence

to support that. . . .” He added:

But the Edenfields did not seem to have the same morality as others, that they were more — functioning on a more — and I hate to say primitive, but more on a physiological level where if something was pleasurable and didn’t hurt, it didn’t matter.

On cross-examination by the Warden, he explained, “[O]ne of my

subordinates had a third investigation that they did where actually

[Edenfield] was named as a perpetrator in that one as well.”

Jan Vogelsang gave lengthy live and deposition testimony in

the habeas court based on her review of records and based on

interviews of Edenfield and “17 family and non-family members in

person.” She was a clinical social worker who conducted a

“psychosocial assessment” of Edenfield with “a focus toward any

28 behaviors, any signs, any symptoms that would have been consistent

with a diagnosis of intellectual disabilities.” She testified that she

found Edenfield to be “different,” that he has “language difficulties,”

that he seemed to have an “impaired” understanding of “concepts

having to do with relationships,” that he struggled with the “flow of

conversation,” and that he would break into unintelligible phrases

when talking about religion. She summarized his school records,

including the fact that he was retained in the first grade, struggled

in the second grade, fell behind in the third grade, was socially

promoted from the fourth to the fifth grade, repeated the fifth grade,

was socially promoted to the sixth grade, “was put in the eighth

grade on condition and had a social promotion to the ninth grade,”

repeated the tenth grade, and then entered a newly-created special

education program in the eleventh grade and turned 20 years old in

that grade. She reported that, although she was qualified to do so,

she was not asked to render a diagnosis regarding the level of

Edenfield’s mental functioning. Nevertheless, she summed up her

opinions on the case this way:

29 The conclusions that I came to in Mr. Edenfield’s case were that his life history is consistent with — and can be characterized by behaviors that are consistent with intellectual disabilities, and that the lack of intervention in this case, both with him and with his family, had a devastating effect on the family in that they never received — well, Mr. Edenfield never received formal specialized services from the community on a long-term or meaningful basis that could have made a difference.

The vast remainder of her testimony was essentially a recapping of

and commentary on lay testimony and notations in various records,

matters that we discuss elsewhere more directly.5

Dr. Kristin Fiano, a neuropsychologist, gave live and

deposition testimony in the habeas court. She testified that, based

on her review of the records and her evaluation of Edenfield, she

concluded that “he meets the criteria for mild intellectual disability.”

She reported: “He talked about paying rent and utilities, doing

grocery shopping, clothes shopping and reported that he was able to

drive.” Nevertheless, she discounted this self-report: “Well, I felt like

5 Regarding testimony like that of Vogelsang, we remind the parties in

such cases that “[a]n expert must not be permitted to serve merely as a conduit for hearsay.” Whatley v. Terry, 284 Ga. 555, 565 (V) (A) (668 SE2d 651) (2008) (emphasis in original). 30 it was likely that he did do some of those things at a basic level.

Based on the record, it seemed that he was also receiving a fair

amount of assistance in performing those tasks.” She stated:

[D]uring my interview with him and during the evaluation process itself, what struck me immediately and throughout the process was that his speech style tends to be very concrete, he uses limited vocabulary, tends to repeat certain phrases over and over, he tends to be tangential, and I needed to direct him quite a bit.

Dr. Fiano explained that she administered the “WAIS-IV,

which is the Wechsler Adult Intelligence Scale, Fourth Edition,”

that Edenfield’s IQ was “71, which is at the 3rd percentile,” and that,

based on the Standard Error of Measurement, there was a 95

percent chance that his IQ fell somewhere from “68 to 76.” She also

administered the Wide Range Achievement Test, testing Edenfield

at the fifth grade level in reading, fourth grade in spelling, and third

grade in mathematics. She stated, “The DSM [Diagnostic and

Statistical Manual] even talks about mild ID [intellectual disability]

at a fifth or sixth grade level.” She explained that she had

interviewed five people regarding Edenfield’s adaptive behaviors

31 and that she found him to have deficits in each of the three

categories of “Conceptual, Social and Practical.” She also

administered tests about Edenfield to four persons, with Shattuck’s

test, depending on how “some ambiguity” was resolved, showing “a

score that was at the 2nd or 4th percentile,” with Chaney’s test

showing “a score that was at the 10th percentile,” with Phillips’s test

showing “an overall score that was 71, which was at the 3rd

percentile,” and with Anderson’s test showing a score of 71 without

the work section included and 78 with it included. On another test,

the Vineland, Phillips and Anderson both scored Edenfield in the

“2nd percentile,” while Carroll scored him “at the 30th percentile.”

Dr. Fiano discounted Carroll’s score, however, claiming that some of

her responses “would directly contradict each other” and that

“sometimes the basis for her opinions seemed inconsistent with the

record to be spurious information.” Dr. Fiano administered the

Adaptive Behavior Assessment System (“ABAS”) test to Edenfield,

and she testified that his self-score “was also in the average range,

96.”

32 Dr. Fiano noted that the Georgia Department of Human

Resources had administered the Role Functioning Scale to Edenfield

in 1980, and she reported the result: “He was rated marginally

productive, marginally self-sufficient, marginally functioning with

immediate social network and marginally effective interactions.”

From an incident report by the Brunswick Police Department, she

read: “Investigation reveals sexual activity among family members,

including father with children. . . . Entire family is retarded, some

more severely than others.” She also read from a petition for

deprivation that had been filed in the Juvenile Court of Glynn

County: “Both George and Minnie allege that they have been fondled

and sodomized by their father, David Edenfield. . . . These children

are mentally retarded and cannot protect themselves.” From

Edenfield’s military records, Dr. Fiano highlighted “a GT score of

67,” and she stated: “There is literature to indicate a correlation

between this General Technical Scale and the WAIS. . . .” She also

read from Edenfield’s military record:

That after review of this soldier’s records, this soldier

33 failed cardiovascular screening and has received marginal NCOERs [evaluations] by this chain of command. He no longer represents the caliber of individual needed for the aggressive Georgia National Guard.

Dr. Fiano noted that Dr. Grant, as part of his involvement

during a DFCS matter, had administered the Peabody Picture

Vocabulary Test to Edenfield and had obtained a score of 100;

however, she added: “It’s not an IQ test. Specifically it is a measure

of receptive language, and language has consistently been one of his

stronger areas on assessment.” She also noted that Dr. Stark,

Edenfield’s expert at trial, had administered “the Slosson

Intelligence Test which is more of a screening measure [that] heavily

emphasizes crystalized knowledge, verbal skills” and that “[h]e

scored in the low average, I believe 83.” Finally, she discussed the

Flynn Effect, which posits that the population performs better on

aging IQ tests over time and that scores may be reduced to

compensate for this effect; however, she also acknowledged that

some studies, at least in another country, have shown a more-recent

opposite effect. On cross-examination by the Warden, she

34 acknowledged from Edenfield’s school records scores of 77 in 1959

and 78 in 1960 on a mental maturity IQ assessment, along with a

score of 69 in 1961 on a Hermon-Nelson IQ assessment.

Dr. Jane Weilenman gave live, deposition, and affidavit

testimony in the habeas court. Dr. Weilenman was the psychologist

whom trial counsel contacted but was unable to use, probably due to

trial counsel’s miscommunication with the trial court, and she

testified based on her post-trial interviews of Edenfield and her

review of his records and the other material gathered by his habeas

counsel. She stated that, in her opinion, Edenfield had “mild ID

[intellectual disability]”; however, she later, when asked directly if

she were making a diagnosis, said: “No.” Regarding Edenfield’s

police interviews, she stated: “[I]t was displayed that he was

suffering — or should I say he was encountering confusion at times,

he needed clarification at times during the interrogation over

something [sic] that were very simple.” Under cross-examination by

the Warden, she admitted that she was not doing intellectual

assessments at the time of Edenfield’s trial and that the most she

35 could have done for trial counsel would have been to suggest that he

hire someone else to do such testing. But she maintained: “But if

someone else had made [a diagnosis of intellectual disability], I could

have concurred with them.”

Dr. Janice Laurence, a psychologist, gave live and affidavit

testimony. She testified that, at the request of the Department of

Defense, she had studied a military program called Project 100,000

and had testified to Congress about it; she also wrote a book on the

subject. She explained that Project 100,000 was a program that

started as a result of a shortage of soldiers for the Vietnam War, and

it brought “low-aptitude people” into the military, particularly the

Army. She testified that she was able to determine from Edenfield’s

Army identification number and from a box checked on a particular

form that he had been drafted as part of Project 100,000. She stated

that persons from the category that Edenfield likely belonged to in

military classification, Category 4, “would be people on the WAIS

who would score in the 70’s or maybe low 80’s.” She indicated that

persons below this category were barred by law from being admitted

36 into the military, even during Project 100,000. She acknowledged

that Edenfield’s National Guard records showed him as being in

Category 3, which is composed of persons more intelligent than

Category 4. However, she dismissed the test score that placed him

in this category on the basis that it was obtained using an “old

version” of the relevant test with answers whose secrecy “could have

been severely compromised” and given by recruiters to test takers.

She also found this more-recent score to be too great of an

improvement from the score she “inferred” that Edenfield had

received when he entered the Army during the war. She disregarded

positive reviews in Edenfield’s military record as being the result of

“grade inflation” and the fact that “he wasn’t given any high-level

jobs to do.” She also downplayed his final rank in the National

Guard of E-5 as being a “Specialist 5” rather than an officer in that

same pay grade, thus making him someone with “no supervisory

responsibility.”

Michelle Schwartz gave live and affidavit testimony in the

habeas court. She explained that she was the owner of a company

37 that offered support services to intellectually disabled persons but

was not qualified to diagnose intellectual disability and had not met

with Edenfield, his family members, or any of the other witnesses

who gave affidavits about his background. Nevertheless, she stated

that she had reviewed “the affidavits and assessments and

additional information” and had reached the opinion “[t]hat his

adaptive skills [we]re commensurate with an individual who has

mild intellectual disabilities.” On cross-examination by the Warden,

she admitted that some of the affidavit testimony contradicted some

of her assumptions in reaching her opinion, including things like the

degree of “natural supports” Edenfield had in his work and living

environments. She also acknowledged the many positive reviews

that Edenfield had received in the military, but she stressed that

the affidavits about his time in the military were “very clear” about

the “natural supports” he had enjoyed there.

Joel Davis gave live testimony explaining that he “was a social

worker and mitigation specialist that assisted with [Edenfield’s]

case” at the time of his trial. He explained that he was assigned by

38 the Capital Defender’s Office to travel “to Brunswick to work on this

case 48 hours before trial” and that he knew nothing at that point

about the case. He testified that “information was limited” for him

about the case because, although he was “unaware at that time,”

there were some sort of “existing conflicts” involving the Capital

Defender’s Office6 and that “they were trying to basically build a

wall between [him] and the Capital Defender’s Office.” He stated

that, once he arrived in Brunswick, he received assignments from

the investigator working on the case, Shannon Hayes, including

“finding witnesses, subpoenaing witnesses, people that had not been

interviewed, things of that nature.” He was privy to the “mitigation

report” that had been prepared by Janann McInnis, but he thought

that “it wasn’t as in depth as what [he] would normally prepare.”

However, we note that Davis presented nothing in his habeas

testimony speaking to Edenfield’s actual mental functioning.

Shannon Hayes, “a fact investigator with the Georgia Capital

6 This potential conflict appears to involve the fact that the Capital Defender’s Office also was representing George Edenfield. 39 Defender,” also testified in the habeas court regarding her work on

Edenfield’s case. But she, like Davis, testified only to the process of

trial preparation and added nothing substantive to the evidence

regarding Edenfield’s intellectual functioning.

Dr. Karen Salekin, a psychologist, testified in the habeas court

that she had reviewed the Stanford-Binet IQ test that the Warden’s

expert, Dr. Glen King, had administered to Edenfield. She testified:

“I identified both scoring errors as well as administrative errors.”

She gave specific examples of responses from Edenfield that she

would have scored lower than Dr. King had, such as her giving

Edenfield zero points for defining “lend” as “[g]ive somebody

something like money or something like that.” Based on her

rescoring of as much of Edenfield’s test as was possible given the

test’s format, Dr. Salekin opined that Edenfield would have received

a 78 rather than the 81 as scored by Dr. King. She also criticized the

starting point on the test chosen by Dr. King for Edenfield’s testing,

claiming that Dr. King’s starting point might have inflated

Edenfield’s score and stating: “It would have been prudent,

40 particularly in a capital murder case, when you have — life and

death is at stake here to be much more cautious than beginning at

the age of 18. . . .” Finally, she discussed the Flynn Effect, which is

the inflation of IQ scores on aging tests based on the supposedly

increasing intelligence of the general public, and she stated that her

score of 78 for Edenfield would become a 73 after accounting for the

Flynn Effect. However, she acknowledged during cross-examination

by the Warden that some scientific literature has posited that the

opposite effect has more recently occurred.

James Yancey, lead trial counsel, testified at length both live

and by deposition. But, as his testimony concerned the process of

developing and presenting Edenfield’s defense at trial, it sheds little

light on the question of the prejudicial impact of the alleged

deficiencies committed by Yancey and his co-counsel.

Dr. Stark, the psychologist who testified for Edenfield at his

trial, gave additional affidavit and deposition testimony in the

habeas court. He discussed his administration of the Slosson

Intelligence Test, on which Edenfield had scored an 83. He explained

41 that it was a “brief measure of IQ” rather than “the long version of

IQ testing like the WAIS or the Stanford-Binet,” but he maintained

nevertheless that “[i]t usually correlates well with the Wechsler

[WAIS].” He seemed to stand by his prior diagnosis of schizophrenia,

explaining again that Edenfield’s MMPI test results were “purely

typical of a psychotic kind of condition,” specifically “paranoid

schizophrenia.” Dr. Stark stated that, while he could not recall when

he received them, Edenfield’s school records showed behavior that

“was more typical of somebody who was — was intellectually

disabled.” His affidavit testimony, which he testified that he had not

written but had read, stated more directly: “Based on the record

before me today, I concur with the opinions of Dr. Kristin Fiano and

social worker Janet [sic] Vogelsang that David Edenfield has [an]

intellectual disability.”

Delores Anderson, Edenfield’s former boss who, as recounted

above, also testified on Edenfield’s behalf at his trial, gave affidavit

testimony in the habeas court. She stated, “I am no expert on mental

retardation, but I always understood that [Edenfield] was mentally

42 slow.” She then stated, in some contradiction to her trial testimony:

“For example, I never assigned [Edenfield] to the cash register. [He]

was not capable of handling the register, certainly not quickly.” She

described Edenfield’s duties as including washing pots and pans,

putting up stock, and working the broiler. She stated: “I didn’t

assign [Edenfield] to making sandwiches often because it was a fast

paced position and [he] couldn’t keep up.” She also stated that

Edenfield had poor hygiene and required more supervision than her

other employees. Finally, she stated, relevant to an assessment of

his driving abilities: “He would give me rides to [and] from work if I

asked.”

Josephine Berry gave affidavit testimony that she had worked

for DFCS and had had contact with the Edenfield family “in the late

1980s.” She stated, “All of them were mentally retarded. David,

Peggy, and their children, Minnie and George.” She added, though,

“David was the most capable one of the Edenfield family, but he was

still very limited.” She stated that she was involved with two

complaints involving the Edenfield family, “first in 1985 and again

43 in 1988,” explaining:

Both complaints involved allegations of sexual abuse and neglect. I don’t recall having contact with the Edenfields related to the first complaint, which doesn’t name David, only the second one, which does.

She stated that the Edenfield home had a “bad odor,” that the

housecleaning was poor, and that the children did not have clean

clothes and had head lice. She also stated:

I understood the family’s alleged problems with sexual boundary issues to stem from their limited mental capacity. Sexual impulsivity and boundary violations are common among people with impairments in intellectual functioning. None of them were able to control their impulses or understand sexual boundaries like people who were not impaired.

Ann Brunswick gave affidavit testimony explaining that she

had been Edenfield’s supervisor at a hospital “Environmental

Services Department . . . in 1992 and 1993.” She stated: “[Edenfield]

was mentally challenged and slow. It took him longer to do his work

than it did other employees. Once he got the hang of a task he did

fine, but he could be forgetful. You had to remind him what to do

and keep an eye on him.”

44 Maggie Carroll, Edenfield’s older sister, and Gart Carroll,

Edenfield’s nephew, both gave affidavit testimony, but the only

statements relative to Edenfield’s intellectual functioning regarded

how the Edenfield family had appeared to go “downhill” after

moving to their new home, how Edenfield and his wife Peggy both

were “slow” and their children even “slower than them,” how

Edenfield had a long work history, and how the Edenfield family had

poor hygiene.

Charles Chaney gave affidavit testimony explaining that he

was Edenfield’s “direct supervisor in the Georgia Army National

Guard and ha[d] known him for many years.” He stated: “[Edenfield]

always seemed slow to me. It took him a little longer to do things

than it did other guys under my command.” He stated that he “never

assigned [Edenfield] cooking tasks because he couldn’t handle the

job,” that Edenfield “would not have been able to follow recipes,” that

Edenfield “was one of the weakest guys under [his] supervision from

a mental standpoint,” and that Edenfield “wasn’t a guy [he] could

trust to handle many things on his own.” He stated that Edenfield

45 was good at tasks like “peeling and cutting potatoes” and making

tea and that his “main job in the Guard was setting up for mealtimes

and cleaning up afterwards.” He did state, however, that Edenfield

was assigned “the task of driving a military vehicle to transport

materials” accompanied by “another Guardsman” to help him load

and unload the vehicle. He described Edenfield’s rank of E-5, which

was just below his own rank of E-6, as being “a courtesy or

complimentary rank, commonly handed out to those who might not

have been higher rank material, but who were otherwise dependable

and reliable or hardworking, like David.” He explained that he gave

Edenfield good ratings but that they “were not always an accurate

representation of how he truly performed.” He stated:

My ratings on David’s evaluations were inflated with regard to his leadership skills, and his ability to provide effective instruction to his subordinates. I generally gave him 4s or 5s in these areas, when David did not provide instruction or direction to anyone, and only had subordinates in the sense that he outranked other Guardsmen. David didn’t supervise anyone.

He concluded: “David did complete the tasks assigned to him

efficiently, but again, these were simple tasks. It is true that David

46 was a dedicated and enthusiastic soldier.”

Zoann Covington testified that she was Edenfield’s fifth grade

teacher. She stated:

He was a special needs student who had to learn how to get along in a regular classroom. He exhibited an odd behavior that I’ve never forgotten over the years: when he was upset or didn’t succeed at a task, he would walk over to the concrete block wall of our classroom and bang his head against it.

Finally, she stated that she “socially promoted” Edenfield to the

sixth grade.

Florence Dees, who also testified for Edenfield at his trial, gave

affidavit testimony in the habeas court. She stated that she had

regular contact with Edenfield because her mother-in-law owned the

house he lived in and Edenfield would come with his wife and

children to pay the rent in cash. She stated: “Both Peggy and David

were mentally limited and immature. Peggy was very limited, even

more than David.” She stated that Edenfield and his wife relied a

great deal on his mother “to help them with basic tasks like cooking,

paying bills, shopping, and keeping the house clean.” She added:

47 “David was able to hold down a job but he also needed [his mother’s]

structure and support. David depended on [his mother] to reason

things out for him.”

Neal Dees, the husband of Florence Dees, gave affidavit

testimony in the habeas court. He stated, “David was mentally

retarded in my opinion.” But he added, “Peggy was much slower

than David, and their children, Minnie and George were really

retarded, too.” He then added further: “[Peggy] was worse off than

David mentally, so David had to stay on her to get her to do things

around the house. I remember hearing David holler at Minnie and

George to take a bath.” He stated that Edenfield “was naïve and

gullible” and “didn’t really have the wherewithal to do stuff on his

own” but “had to be instructed and followed up with.” He added: “I

was angry about the murder and it mystified and angered me to

think that David might have been a part of it.”

Chester DePratter, Peggy Edenfield’s brother, also gave

affidavit testimony. He stated, “Peggy has always been special and

different, meaning she has always been mentally impaired, and

48 David is very similar to her in this way.” He added, “I have always

thought that David was also mentally retarded.” He stated that his

parents “helped David and Peggy pay their rent on a regular basis,”

“put a new roof on their home[,] and helped them with car

payments.” He stated that Edenfield’s mother “helped them, too.”

Dr. Daniel Grant, who was the expert who withdrew from

working on Edenfield’s case once he realized that he had previously

evaluated the Edenfield family for DFCS, gave affidavit and

deposition testimony in the habeas court. He explained that, as part

of that previous DFCS case, he had administered the Peabody

Picture Vocabulary Test to Edenfield and that Edenfield scored 100

on it. He stated:

The Peabody is not designed to provide a full and accurate measure of global intellectual functioning, and in fact it is only a moderately good predictor of performance on a comprehensive intelligence test, such as the Wechsler Adult Intelligence Scale (WAIS).

Although his affidavit did not further address his report for DFCS,

the report is part of the habeas record and showed that, in addition

to the screening score of 100 for Edenfield’s IQ, Dr. Grant tested

49 Peggy Edenfield’s IQ as 75, George Edenfield’s IQ as 44, and Minnie

Edenfield’s IQ as 41. Regarding Edenfield, the report stated, “He is

also accused of molesting both children and having penile

penetration with Minnie.” It also stated, revealing the relative

condition of Edenfield’s intellectual function as compared to his

wife’s functioning: “It is also important to note that Mr. Edenfield

has to go grocery shopping with his wife because she is unable to do

this task by herself. He also cooks three to four suppers during the

week.” The report recounted accusations that Edenfield sexually

abused George, but the report stated that this accusation was not

credible for various reasons. Nevertheless, the report concluded

differently regarding the accusations by Edenfield’s daughter:

I feel that Minnie’s description of the sexual molestations, poor supervision and possible physical abuse are quite convincing, as was her explanation using the sexually explicit dolls. I feel it is quite likely that she has been molested and feel that she is able to explain this molestation fairly convincingly in court.

George Randy James also gave affidavit testimony in the

habeas court. He stated that he “dated David Edenfield’s sister in

50 law, Sharon Phillips, for about 7 years, from about 2002 until about

2009.” He stated about the Edenfield family, “They were all mentally

slow.” He added, “Peggy had the mind of a 6 year old, and David

wasn’t much better.” He stated: “Even though David was mentally

retarded, David was the head of the family. He always worked.” He

explained how he once had to help the Edenfields move their

thermostat setting “from cool to heat” and once “helped them hook

up their washing machine.” Regarding Edenfield and his mother, he

said: “He took care of her the best he could. She was slow like the

rest of them though. She had really bad hygiene.” He stated:

The pretrial investigator also has a note saying that I said David is highly functional, which is misleading. David is only highly functional when you compare him to everyone else. I’m no expert, but to me, David is mentally retarded, too, just not as bad as the others. You could send David to the store to get something and he’d be able to do it. The others couldn’t do this. David could drive, and the others couldn’t. David was the smartest one in his family group, but that isn’t saying much.

Michael Keach, Edenfield’s nephew, also gave affidavit

testimony. He stated: “He was a good uncle, but he wasn’t too bright.

Really, he acted more like one of the kids than a grownup.” In

51 support of that statement, he recounted how Edenfield would play

games with him. He described once “riding in a garbage truck that

[Edenfield] drove” and how Edenfield “would have to line the truck

up with the dumpster so he could lift the dumpster and dump it into

the truck.” He added, though, “There wasn’t anything hard about it,

you just had to pull a few levers in the truck.” Finally, he stated:

It was pretty obvious to me that David wasn’t right mentally. He didn’t comprehend things like most folks. He was functional, but very limited in intelligence. He did simple work at Jekyll Island Authority [where the trash truck was], and I’ve never known him to have jobs that required a lot of skill.

Alan Kittrell gave affidavit testimony explaining that he, like

Edenfield, served in the Army in Vietnam as a “Field Wireman.” He

stated:

Edenfield seemed goofy. He wasn’t the sharpest tool in the shed. He seemed challenged, and it seemed to me that he had intellectual problems. He was just so slow. . . . He was squirrelly and gullible, and easily misled. He was a strange guy, kind of bizarre.

Kittrell explained the switchboard duties that he and Edenfield both

performed:

52 There wasn’t anything complicated about operating the switchboard. . . . When a call came in, a bulb on the board lit up. The bulb was associated with a specific cord that retracted from the machine. The caller would tell you who he wanted to talk to and you would connect the retractable cord to the hole associated with that person. If I’m remembering right, there were names written on the board, so it was easy to know where to plug the cord in. You’d then crank the wheel on the machine to ring that person so he’d know to pick up.

Janann McInnis, Edenfield’s pretrial mitigation specialist,

gave affidavit testimony in the habeas court. She stated, “[I]t was

apparent to me during my contact with him that he is impaired.”

She added: “I interviewed several of David’s friends, family

members, and co-workers. Their descriptions provided a picture of

David that was consistent with intellectual disability/mental

retardation.” Her remaining testimony related to the pretrial

investigation process and did not speak directly to the question of

Tom Moree also gave affidavit testimony on Edenfield’s behalf

in the habeas court. He stated that he had been a probation officer

and that Edenfield “was on [his] caseload as a result of his 1994

53 conviction for the crime of incest.” When he visited the Edenfield

home on a probation visit for George Edenfield, he noted that the

home was not neat, had a bad odor, and had “stale food left out.” He

stated: “[I]t appeared to me that the Edenfields might have had

some mental challenges at some level. It appeared that George

probably had the worst challenges.”

Donald Pittman gave affidavit testimony explaining that he

had worked with Edenfield in the Army National Guard “for about

2 years” in the “Mess Section.” He stated:

David was cook by title, but he never cooked. No one trusted David to cook. He couldn’t follow the recipe cards to do any actual cooking. He just didn’t have the mental competence to do this. He made sweet tea and was our gopher, meaning we sent David to get items we needed, food and supplies mostly. David’s elevator didn’t go all the way to the top. He was kind of cuckoo. So was his wife, Peggy, and his children, Minnie and George.

He explained that “when [he] first met David he didn’t have a

driver’s license” but instead rode a bicycle. He stated that Edenfield

“was socially inappropriate and awkward” and that his “hygiene was

really poor.”

54 Carson Shattuck, who also testified at Edenfield’s trial, gave

affidavit testimony in the habeas court. He explained that he

assigned Edenfield “to Food Services because it seemed a good fit for

David’s abilities — jobs that were simple to do and that didn’t

require a lot of thought.” He added, “I did not think he was capable

of skilled or complex work.” He stated that Edenfield “was rarely, if

ever assigned cooking tasks” but instead did simpler tasks like

peeling potatoes and washing pots and pans. He stated: “[Edenfield]

didn’t drive when he first came to the Guard, and although it took a

while, several guys in the Guard taught him how to drive and he

was able to get his license.” He explained that Edenfield “on more

than one occasion” was assigned to drive a two-and-a-half ton truck

65 miles to Fort Stewart to get supplies for weekend drills, and that,

“[b]ecause two (2) days of food for roughly 100 men was needed, it

was always a two (2) person job.” Shattuck stated that, despite

records showing that Edenfield had subordinates, Edenfield was

only senior to “the Kitchen Police” and was never seen by him

“providing direction to these guys” or being “in charge of anyone.”

55 He stated that he thought that Edenfield’s rank of E-5 “was a

complimentary or courtesy rank, i.e., he achieved this rank not

based on ability, but because everyone liked him and he tried so

hard.” He stated further:

[Edenfield] attained noncommissioned officer status, but [he] was not noncommissioned officer material and was only classified as such because of the change in ranking system [to eliminate the grade of specialist]. Everyone who knew [him] understood that he was not capable of taking on command responsibilities commensurate with his rank.

Shattuck stated that he “would often ‘flower up’ or enhance” his

evaluations of Edenfield, but that Edenfield “was by no means a

smart soldier in the Guard.”

Albert Sigler, who worked at a group home for intellectually

disabled persons where Edenfield’s intellectually disabled daughter

was eventually placed after Edenfield pleaded guilty to committing

incest with her, gave affidavit testimony in the habeas court. He

stated: “[Edenfield] immediately struck me as intellectually

disabled.” He stated about a letter that Edenfield had written to his

daughter: “I was not able to read [his] handwriting or make sense of

56 the letter. It looked like a child had written it.”

Carolyn Sills, Edenfield’s cousin, gave affidavit testimony that

stated: “[Edenfield] always seemed different to me, even then. By

‘different’ I mean: something wasn’t right in his mind. I wondered

about some of the stuff he said. The things he said seemed childish

for his age.”

Darlene Waters gave affidavit testimony explaining that she

had been married previously to Edenfield’s brother-in-law. She

stated that Peggy Edenfield’s parents “were concerned that

[Edenfield] wouldn’t be able to take care of [Peggy].” She stated that

Edenfield had poor hygiene, that he “had problems with personal

space and boundaries,” and that he would “sometimes brag,

exaggerate his accomplishments, like a child.” Finally, she stated

that Edenfield’s mother would buy groceries for him and his family

at the military store “to guarantee that they had enough food.”

Dr. King, the psychologist who evaluated Edenfield for the

Warden during his habeas proceedings, gave deposition testimony.

He tested Edenfield’s IQ at 72 on the WAIS test and at 80 on the

57 Stanford-Binet test. When asked about a statement in his report

that there was “absolutely no indication from an IQ standpoint that

[Edenfield] functions in a disabled range on intellectual disability”

and asked whether Edenfield “falls into that 67-to-77 range,

applying the SEM [standard error of measurement],” he replied:

Not for me, because I took all of the — both of the intelligence instruments that I gave as the totality of the circumstances, and he scored quite a bit higher on the Stanford-Binet. So looking at both of those together, it is my opinion that he does not function in the disabled range. . . . And all the previous testing was also in the 70s. So, it was all quite consistent. . . . [A]ll of these tests are at 70 — low 70s to a higher [sic] indicate the presence of what we call construct validity. And what that means is that, when you have the same tests or similar tests given over a lengthy period of time and you wind up with the same results, it actually indicates that he’s not — the person is not functioning in the intellectual disability range. He is in the borderline range.

Dr. King testified that his testing showed that Edenfield functioned

at a fourth-grade reading level, a third-grade spelling level, and a

second-grade mathematics level, and he acknowledged that such

test results “can be” consistent with having intellectual disability.

He took issue with some of the testing that Dr. Fiano gave to several

58 persons who knew Edenfield, however, stating:

Two of them were extremely low; so low that, you know, they raised serious questions about giving zeros, because he was not able at all to do certain tasks [according to them] that I think he had no difficulty with.

He then emphasized the fact that Edenfield’s “sister actually filled

out the Vineland indicating that he had fairly good adaptive

functioning, that he was functioning in the average range.”

Regarding Edenfield’s manner of speaking, he testified: “He — to be

quite honest with you he talks as a person that I would describe

probably as borderline. . . . Not average, but not intellectually

deficient.” Dr. King defended his decision to begin his testing on the

Stanford-Binet test at the point specified for adults, stating, “It’s

important just because that’s the standardization for the test.” He

added about whether starting at a lower point is ever appropriate:

Sometimes in clinical judgment, if you have somebody who you are assessing and it’s quite obvious that they are functioning at an extremely low level, you might start at a lower age. But those situations are pretty rare.

He explained that he had done so only once in 200 to 300 tests, with

someone who had already undergone IQ testing and scored less than

59 40.

Dr. Stephen Price gave deposition testimony in which he

discussed a report that he prepared for Edenfield’s habeas

proceeding. He testified regarding his interview of Edenfield: “He

has a — an odd way of communicating. He’s very — he rambles a

great deal, and very circumstantial and tangential.” He testified

that the “mini mental status examination” that he gave Edenfield

“corroborated the — the mild intellectual deficiency that — that he

has.” He acknowledged that there was no evidence that Edenfield

had ever received disability benefits from Social Security or that he

had ever been diagnosed previously as being intellectually disabled.

c. Analysis of Prejudice

Having recounted in some detail both the evidence presented

in the trial court relevant to the jury’s assessment of Edenfield’s

intellectual functioning and the new evidence on that topic

presented in the habeas court, we turn to assessing the likely effect

that the new evidence would have had on the jury’s deliberations at

Edenfield’s trial if it had been presented there. And here we are

60 concerned specifically with what effect such evidence would have

had on the jurors’ exercise of discretion in recommending a sentence

of death or of life, whether with or without parole, once they had

already determined beyond a reasonable doubt that Edenfield was

guilty and had also determined that the State had proven beyond a

reasonable doubt the existence of at least one statutory aggravating

circumstance. See OCGA § 17-10-30 (b) (providing the aggravating

circumstances that, once found, will authorize the discretionary

decision by a jury to recommend a death sentence for a murder).7 As

we noted above, in reviewing a lower court’s decision on such a

7 On direct review, this Court conducted a statutorily mandated review

of the statutory aggravating circumstances found by Edenfield’s jury and held: The jury found beyond a reasonable doubt that the murder in this case was committed during the commission of an aggravated battery in that the anus of the victim was seriously disfigured, and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and depravity of mind. Although it is a close question whether the evidence was sufficient to sustain the finding of aggravated battery, there was more than enough evidence to sustain the finding beyond a reasonable doubt that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and depravity of mind. Even if the finding of aggravated battery were set aside for insufficiency of the evidence, the death sentence in this case still would be valid because it is supported by another statutory aggravating circumstance that the evidence fully supports. Edenfield, 293 Ga. at 392 (13) (citations omitted). 61 claim, we accept the lower court’s findings of fact unless clearly

erroneous, but we apply the law to the facts de novo. Strickland, 466

U. S. at 698 (IV); Carr, 273 Ga. at 616 (4). In that context, the

category of “findings of fact” is somewhat limited in scope (e.g., did

something happen or not regarding counsel’s investigation of the

case), while the relevant conclusions of law involve the questions, as

fact-driven as they may be, of (1) whether counsel performed

deficiently and (2) whether the defendant suffered prejudice of

constitutional proportions. Id. In the de novo review for prejudice,

such as here where we have already assumed the existence of

deficient performance by counsel, we attempt to look at all of the

evidence through the eyes of the trial jurors and then ask ourselves

whether “‘there is a reasonable probability that at least one juror

would have struck a different balance’ in his or her final vote

regarding sentencing” if the jurors had heard the evidence presented

in the habeas court in addition to the evidence that they actually

heard at trial. Walker, 297 Ga. at 205 (II) (C) (quoting Wiggins, 539

U. S. at 537 (III)). In conducting that de novo review for prejudice

62 here, we conclude that, although the evidence of Edenfield’s

intellectual functioning presented in the habeas court was far higher

in volume than the evidence presented at trial, it was not

meaningfully different from the trial evidence and would not in

reasonable probability have led any of the jurors to have selected a

sentence other than the death sentence they actually recommended.

At both the trial and the habeas proceedings, the evidence

showed that Edenfield received a variety of IQ scores over the years,

with one at 69, many in the 70s, and several in the 80s or higher.

Notably, even the State’s own expert acknowledged at trial that

Edenfield had consistently received IQ scores in the “borderline

range,” meaning the range just above mild mental intellectual

disability. Likewise, at both the trial and habeas proceedings, expert

testing showed Edenfield’s reading skills to be at the fourth or fifth

grade level, his spelling skills to be at the third, fourth, or fifth grade

level, and his mathematics skills to be at the second or third grade

level. While Dr. Fiano testified in the habeas court, as no expert had

at trial, that she had concluded that Edenfield suffered from “mild

63 intellectual disability,” even she acknowledged that some of his

testing was inconsistent with that diagnosis, with some measures

showing him functioning as high as in the “average” range. And, on

the other hand, the Warden’s habeas expert highlighted that, over

the long term, Edenfield’s IQ scores were consistently in the 70s and

above8 and that he demonstrated the ability to navigate a simple but

productive lifestyle. Thus, we conclude that the expert testimony

presented in the habeas court, particularly considering the

competing nature of some of it as to Edenfield’s precise IQ and as to

a relevant formal diagnosis, would not have substantially altered

the jury’s appraisal of Edenfield’s intellectual functioning.

Also at both the trial and habeas proceedings, the evidence

showed that Edenfield was regarded by his family and other

associates as being mentally “slow,” worked menial jobs his whole

8 We note that the United States Supreme Court has stated: “Even when

a person has taken multiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor.” Hall v. Florida, 572 U. S. 701, 714 (III) (A) (134 SCt 1986, 188 LE2d 1007) (2014).

64 life, and required help to learn even his simple job responsibilities.

This evidence included trial testimony depicting him as simply

“plod[ding] along” in a “boring kind of life style” in his work and

needing assistance even in his basic responsibilities, testimony that

was not substantially enhanced by the similar habeas testimony.

Notably, too, some of Edenfield’s new habeas testimony even depicts

Edenfield as being a provider of assistance, rather than just a

recipient of it, with him caring for his mother and caring for his

more-severely impaired wife by keeping her focused on tasks,

shopping for her, and cooking for her. We acknowledge that the

habeas evidence includes testimony, albeit much of it only by

affidavit, from Edenfield’s family members and associates about his

limited adaptive behaviors through the years. Yet, we are struck

that the characterization of much of this testimony by Edenfield’s

several experts in his habeas proceeding repeatedly places an

interpretation on that testimony that fails to align with the original

65 testimony.9 Instead, that lay testimony, when considered in its own

right, depicts someone who suffered intellectual challenges but was

able to lead a generally independent household, nonetheless.

Further evidence of Edenfield’s difficulties was presented at

both the trial and habeas proceedings through evidence showing

that Edenfield did not reach his final rank in the military based on

merit and would not have reached that level under current

standards, that he was “slow” but dependable in his military duties,

that his duties while in the National Guard were limited to working

as a cook, that even with his limited duties he required assistance

because of his “slowness,” and that he required assistance to

complete simple tasks like filling out military paperwork. The

9 For example, Vogelsang, Edenfield’s clinical social worker whose findings were relied upon by Edenfield’s other experts, sought to downplay the fact that Edenfield was sometimes assigned to drive a military truck, hastening to add that “[h]e was never allowed to do it alone.” However, lay testimony showed that Edenfield drove a two-and-a-half ton truck 65 miles to Fort Stewart and needed a passenger to accompany him simply because the amount of food being picked up made it “a two (2) person job.” Similarly, Vogelsang downplayed Edenfield’s operation of a telephone switchboard as being “very simple” and involving merely “pull a cord out, plug a cord in,” while the description of the operation in lay testimony from Alan Kittrell showed it to be more involved.

66 testimony on this topic in the habeas court was different from that

in the trial court in volume and in some degree of specificity,

particularly regarding the exact program under which Edenfield

had been admitted into the Army during the Vietnam War, but those

differences do not alter our analysis here, particularly considering

the fact that some of the records presented in the habeas court

actually suggested that Edenfield tested and operated at an average

level of functioning.

Finally, we note that, at both proceedings, the evidence

included lengthy video recordings of Edenfield being interviewed by

investigators, with him appearing somewhat odd in demeanor but

able to cogently participate in the interview. In this context, we

again emphasize that our task here is to consider what effect the

new habeas evidence likely would have had on the jurors’ purely

discretionary selection of a sentencing verdict. In rendering such a

verdict, the jurors, especially after hearing competing expert

testimony, would have given great weight to the hours of video-

recorded interviews of Edenfield, where the jurors could see

67 firsthand what his mental capabilities were. Thus, we likewise

weigh those video recordings heavily in our analysis of prejudice

here.

Overall, unlike the evidence in the habeas court, the evidence

at trial could have been viewed by the jury as casting Edenfield in a

favorable, mitigating light: someone who worked hard, overcame his

mental “slowness” to a large degree, kept his family together the

best he could, and served his country in a humble role, yet in a

diligent fashion. In some contrast, the habeas evidence attempts to

characterize Edenfield as someone whose mental “slowness” made

him somewhat incompetent in his work and military duties. While

that characterization might also be considered mitigating by the

jury, it also may well have undercut the mitigating effect of the

different light cast on Edenfield at trial as someone who

accomplished some important things. And importantly, in the

process of developing an alternative theory of mitigation in the

habeas court, Edenfield introduced some severely aggravating

evidence, particularly evidence that he was investigated by DFCS

68 after both of his children accused him of sexually molesting them as

minors and the finding of the psychologist who investigated the

children’s claims that the daughter’s claim bore indices of

credibility.

In sum, the evidence presented in the habeas court was not so

much more mitigating compared to the evidence at sentencing that

it would have created a reasonable probability that any of the jurors

would have exercised his or her discretion differently so as to vote

for a sentence less than death in this case.10 See Humphrey v.

Morrow, 289 Ga. 864, 867 (II) (717 SE2d 168) (2011) (citing OCGA §

17-10-30, which provides that a death sentence may be imposed only

upon a unanimous jury recommendation, yet finding no prejudice

from counsel’s deficiencies). Accordingly, we reverse the habeas

court’s judgment in which it vacated Edenfield’s death sentence on

10 As a matter of course, we frequently consider published opinions with

similar fact patterns when considering the potential prejudicial effect of trial counsel’s actual or presumed deficiency. With respect to this enumeration and the one that follows, neither Edenfield nor the Warden has pointed us to any cases sufficiently similar to be helpful to our analysis. Nor have we discovered any on our own. 69 the basis of this claim.

B. Seeking a Verdict of Guilty but Intellectually Disabled

Above, we discussed at length the evidence presented in

Edenfield’s trial regarding his intellectual capacity as compared to

the evidence presented in the habeas court, and in that discussion

we concluded that the habeas evidence would not have had a

constitutionally significant effect on the sentencing phase verdict.

We next consider whether, as Edenfield argues in his cross-appeal,

such evidence would have had a significant effect in the

guilt/innocence phase, particularly whether there is a reasonable

probability that the jury would have found Edenfield to be guilty but

intellectually disabled. See OCGA § 17-7-131 (c) (3), (j) (providing for

a life sentence for any defendant who is convicted but can prove his

or her intellectual disability beyond a reasonable doubt in the

guilt/innocence phase of his or her death penalty trial); OCGA § 17-

7-131 (a) (2) (as amended in 2017 to replace the term “mentally

retarded” with the term “intellectual disability” and to renumber

paragraphs but otherwise without making any change to the

70 relevant definition) (“‘Intellectual disability’ means having

significantly subaverage general intellectual functioning resulting

in or associated with impairments in adaptive behavior which

manifested during the developmental period.”). In the sentencing

phase, the jury would have been acting entirely within its discretion

in selecting a verdict based on its general assessment of Edenfield’s

intellectual functioning. However, in the guilt/innocence phase, the

jury would have been required to consider whether Edenfield had

proven beyond a reasonable doubt that he was intellectually

disabled under the statutory and clinical definitions of that

condition. See Young v. State, 312 Ga. 71, 87-100 (25) (860 SE2d 746)

(2021) (plurality opinion). In view of the higher burden applicable

here and in light of our summary and discussion of the evidence set

forth above, we conclude that there is no reasonable probability that

the evidence presented in the habeas court would have led

Edenfield’s jury to find him guilty but intellectually disabled beyond

a reasonable doubt. See Schofield v. Holsey, 281 Ga. 809, 813 (II)

(642 SE2d 56) (2007), overruled on other grounds by Lane, 308 Ga.

71 at 23 (Appendix).

C. Presenting Other Mitigating Evidence

Edenfield also argues in his cross-appeal that, after granting

sentencing relief based on his claim regarding intellectual disability,

the habeas court omitted findings of fact and conclusions of law

regarding the following areas of allegedly mitigating evidence:

Edenfield’s impoverished upbringing; physical abuse that Edenfield

suffered; George Edenfield’s propensity to violence; difficulties

suffered by Edenfield because of his family’s move; and evidence

related to Edenfield’s incest conviction. See OCGA § 9-14-49

(requiring findings of fact and conclusions of law). We agree that a

remand is necessary here. The habeas court’s summary denial of

“every other claim” does not satisfy the requirements of OCGA § 9-

14-49. On remand, the habeas court should address solely the five

specific issues listed here. See Humphrey v. Riley, 291 Ga. 534, 546

(V) (731 SE2d 740) (2012) (remanding for consideration of a claim

72 that the habeas court “explicitly declined to also address”).11

D. Challenging Custodial Interrogation

Edenfield also argues in his cross-appeal that his trial counsel

rendered ineffective assistance by failing to support his motion to

suppress his custodial statements by including evidence of his

limited intellectual capacity. As Edenfield acknowledges, this Court

has already addressed the impact of his intellectual deficiencies on

the admissibility of his statements, holding as follows on direct

appeal:

Edenfield also contends that the voluntariness of his statements — and his understanding of assurances given to him by investigators — must be considered in the light of his low intellectual capacity. But our review of the recordings of his statements reveals that he had adequate capacity to understand the context of the assurances and that he did, in fact, understand that context. Moreover, this conclusion is confirmed by expert testimony at trial,

11 We express no opinion about whether any or all of these points were

sufficiently presented to the habeas court to warrant adjudication at all. If they were not, the habeas court may dispose of them accordingly. But, if they are to be adjudicated, they will require findings of fact and conclusions of law specific to each claim. OCGA § 9-14-49. The habeas court is also reminded that, should it find or assume that trial counsel rendered deficient performance in any manner regarding these particular remaining claims, any prejudice from such deficiencies should be weighed collectively with the prejudice stemming from the deficiencies discussed elsewhere in this opinion. See Lane, 308 Ga. at 15- 16 (1). 73 which showed that Edenfield has an intelligence quotient of 83, which puts him in the low end of the average range. See Schneckloth v. Bustamonte, 412 U. S. 218, 226 (II) (A) (93 SCt 2041, 36 LE2d 854) (1973) (noting that intelligence of the defendant is among the totality of circumstances to be considered in weighing the voluntariness of his statement).

Edenfield, 293 Ga. at 375 (2) n.7. However, we agree with Edenfield

that his motion to suppress would have been enhanced, at least

marginally, by a more compelling showing of his limited intellectual

capacity.

That said, while it does have a bearing on an assessment of the

voluntary nature of a confession, low intellectual functioning is not

alone a basis to exclude a statement. See Barrett v. State, 289 Ga.

197, 199 (1) (709 SE2d 816) (2011). Instead, as we noted on direct

appeal, citing Bustamonte, 412 U. S. at 226 (II) (A), the intelligence

of the defendant is merely one factor comprising the totality of

circumstances to be considered in weighing the admissibility of a

custodial statement. In light of everything recounted above

regarding Edenfield’s new evidence of his intellectual deficiencies,

in particular our statements regarding that new evidence in relation

74 to his video-recorded confession that we also reviewed and noted on

direct appeal, we conclude that such new evidence would not have

shown that Edenfield did not voluntarily give his custodial

statements. Accordingly, we identify no deficiency on counsel’s part

regarding the motion to suppress. See Walker v. State, 296 Ga. 161,

169 (3) (a) (766 SE2d 28) (2014).

E. Challenging the State’s Forensic Evidence

Edenfield argues that trial counsel rendered ineffective

assistance by failing to challenge the State’s forensic evidence at

trial by calling a forensic pathologist to testify on behalf of the

defense. We note that the trial and habeas records show clearly that

trial counsel obtained the autopsy report and other forensic reports

from the State, spoke “with a physician but not with a forensic

pathologist,” and concluded about a month before trial that a

“[f]orensic pathologist [was] not necessary to explain” the injuries in

the case. Nevertheless, our analysis here does not depend on

whether counsel made a reasonable investigation into what a

forensic pathologist hired by the defense might have been able to

75 say, because we conclude that presentation of testimony at trial like

the testimony from a new forensic pathologist that Edenfield has

presented in his habeas proceedings would not in reasonable

probability have changed the jury’s findings as to his guilt or as to

his sentencing.12 See Hall v. Lee, 286 Ga. 79, 95 (II) (C) (684 SE2d

868) (2009) (concluding that the expert testimony presented on

habeas would not in reasonable probability have changed the

outcome if presented at trial).

At the habeas hearing, Edenfield presented affidavit and live

testimony from Dr. Jonathan Arden, a forensic pathologist who

12 In contrast to our discussion above requiring remand for findings of

fact and conclusions of law, the habeas court addressed this matter at some length in its discussion of the guilt/innocence phase, and that discussion also identified the matter as having potential bearing on the sentencing phase. Thus, when the habeas court later stated summarily at the end of its order that it was denying “every other claim” beyond the one claim on which it granted relief, that denial must be considered in concert with the prior consideration of this issue in relation to the guilt/innocence phase. Coupled with that discussion by the habeas court regarding the guilt/innocence phase and the findings of fact and conclusions of law made there, we conclude that this otherwise-summary disposition by the habeas court regarding this claim as it concerns the sentencing phase was sufficient to satisfy the requirement of OCGA § 9-14-49 for findings of fact and conclusions of law and was sufficient to support our analysis here. Cf. Riley, 291 Ga. at 546 (V) (remanding for consideration of a claim that the habeas court “explicitly declined to also address”). 76 criticized the trial testimony of the State’s forensic pathologist, Dr.

James Downs. The Warden called Dr. Downs to testify in response,

and then Edenfield recalled Dr. Arden to testify in rebuttal. Below,

we address the two witnesses’ testimony together as to each topic

raised by Edenfield in his cross-appeal, followed by an analysis of

the combined effect that testimony has on our analysis of Edenfield’s

claim here.

1. Injuries to the Anal Area

We begin with a discussion of Dr. Downs’s trial testimony

regarding his assessment of injuries to the victim’s anus and the

area near it. Dr. Downs testified that during his autopsy the “body

was in a state of decomposition,” specifically at the “early end of”

that process when “gas forms in the soft tissues so things get

swollen,” “external skin starts to get separated from the soft tissues

underneath,” and “the area of the skin that has the pigment tends

to slide off.” He testified that there were “two separate areas of

bruising that [he] saw grossly” during his in-person examination of

the body. The first was “a quarter inch area of hemorrhage” that was

77 “at the six o’clock edge of the perineum, which is the space between

the anus and the penis.” The second was a “one inch bruise” that

was “at the edge of the anal margin” and “extended down into the

soft tissues.” He opined regarding this second injury:

Some type of blunt force had to cause that. One type of blunt force would be a penetration, a stretching injury because that area of the body while accommodating a certain stretch at some point you’re going to damage it particularly if it’s done — penetration is done roughly. So that bruise would be consistent with penetration.

He also testified that he had taken “microscopic sections” and

“confirmed in the areas that were injured that there was fresh blood

there.”

Dr. Arden testified at the habeas hearing that he agreed with

Dr. Downs’s characterization of the body’s stage of decomposition,

and he relied on the body’s partial decomposition to question Dr.

Downs’s findings regarding the anal area. First, Dr. Arden testified

that he was unable to see, in the photographs he reviewed, any

injury to the perineum but that he instead saw “tissues that were

decomposed and decomposing.” Regarding his microscopic

78 examination of the sample from this area, he testified: “I saw the

postmortem decompositional changes, but I did not see any

hemorrhage.” Regarding the second potential injury, the one to the

margin of the anus itself, he testified that he “did not observe any

contusion that matches the description of being one inch and

following the 6 to 9 to 12 o’clock margin of the anus.” As to his

understanding of Dr. Downs’s description of this injury, Dr. Arden

testified on cross-examination: “But my reading of his words is that

it’s 1-inch wide and extending along that half of the circumference.”

As to his own microscopic examination, he testified that he “saw

substantial postmortem changes,” but he also admitted that he “saw

one very small area . . . of some mild hemorrhage.” He explained

that, given Dr. Downs’s “description of anal penetration, especially

as Dr. Downs referenced if it’s done roughly,” he “would expect to

see widespread, acute hemorrhage pretty much throughout the

tissue” and “would expect to see a laceration of the anus.” He opined

that the “best explanation here is decompositional change,” and he

explained that such a mild hemorrhage “could also happen not only

79 from penetration or an assault, that could also happen from, for

instance, straining at hard stools.” However, he reiterated: “But I do

not see any convincing evidence that there was indeed a bruise as

described.” And he stated regarding what he would have expected to

see from an anal rape: “Definitive evidence of hemorrhage and

bruising and very likely a laceration as well.”

On his direct examination at the habeas hearing, Dr. Downs

gave testimony reacting to Dr. Arden’s testimony, something that he

would have been permitted to do at trial if Dr. Arden had testified

there. Dr. Downs reiterated that he had microscopically “confirmed

that there was blood underneath” the two areas of “discoloration”

that he had observed during his in-person examination of the

victim’s anal area. He also directly contradicted Dr. Arden’s

understanding of his description regarding the size of the possible

injury to the margin of the anus, stating:

[M]y description was never intended to say it extended from 6 to 9 to 12. What that’s intended to say is I opened the anus up, I sectioned it. I’m not going to pretend to say this is at 10 o’clock now because I’ve altered the appearance.

80 Considering these two witnesses’ testimony about the possible

injuries to the victim’s anus, we do not find them to be incompatible,

as both left open the possibility that such injuries existed. To the

extent Dr. Arden attempted to discredit Dr. Downs’s testimony, we

agree with the habeas court’s assessment that Dr. Arden merely

asserted that there was “no conclusive evidence” of anal injury,

meaning that his effort to discredit Dr. Downs largely fell flat.

2. Possible Bite Mark

We turn next to Dr. Downs’s trial testimony about a possible

bite mark on the victim’s back. Dr. Downs’s conclusions about this

potential injury were driven in part by testing swabs he took from

various parts of the victim’s body. He explained that amylase was

“an enzyme that’s present in lots of different areas in the body at low

concentrations” but was a major component of saliva that was “fairly

hardy” and “tends to hang around.” He explained that the swabs he

had taken of some areas of the victim’s body had tested negative for

amylase, but he continued: “The areas that I tested again [—] the

81 back, the buttocks, the penis [—] those were positive.” He then

turned directly to the topic of a possible injury to the victim’s back.

He explained:

[O]n Christopher’s left upper back, there was a crescent shaped mark about two inches, a little less than two inches diameter of bruising. And associated with that was a positive test for amylase. My opinion that’s consistent with a human bite mark.

In his habeas testimony, Dr. Arden explained that one “can

find amylase in perspiration, sweat, urine, [and] some other bodily

fluids as well,” but he also indicated that “it is found in higher

concentration in saliva.” As to possible bruising injuries in general,

he explained: “Yes, postmortem discoloration can, indeed, look like

a bruise, or either simulate it or hide it or obscure it or make it

unclear.” Regarding the possible bite mark in particular, Dr. Arden

testified: “In my opinion, the microscopic examination does not

support the conclusion that there was a real blunt injury to that part

of the body[, because,] if that were a real injury incurred during life,

I would expect to see substantial hemorrhage spread over wide areas

relative to the size of that tissue sample.” Nevertheless, Dr. Arden

82 did not exclude the possibility that the injury identified by Dr.

Downs was in fact “real.” While Dr. Downs had described his

findings as “consistent with a human bite mark,” Dr. Arden could

only say that it was “not conclusively a bite mark” and that, while

the discoloration was “potentially consistent with a human bite

mark, that feature by itself [wa]s not specific enough to make a

definitive conclusion as to it being a bite mark.” Similarly, while Dr.

Arden criticized Dr. Downs for not consulting with an odontologist,

which is an expert on teeth, he also had not done so.

In his own habeas testimony in response to Dr. Arden’s, Dr.

Downs explained that he had consulted an odontologist in the past

in other cases, but he stated: “But in a case like this, because you

have that leaking of pigment — blood pigment in a bruise out into

the tissues, you lose the individual teeth. It’s not expected to be

there. It wasn’t there.” He also reemphasized that his opinion

regarding the existence of a bite mark was based in part on the

positive testing “for amylase, saliva.” He concluded: “And I stated

very clearly [in trial testimony], it is an opinion. I believe it to be

83 consistent with a bite. I still do.”

Considering these two witnesses’ testimony about the possible

injuries to the victim’s back resulting from a human bite, we do not

view them as being directly contradictory, as Dr. Arden simply found

the evidence inconclusive while Dr. Downs found it persuasive.

Rather, while Dr. Downs developed an opinion that the evidence

supported an injury consistent with a human bite mark, Dr. Arden

opined that the evidence did “not conclusively” point to a bite injury.

3. Seminal Fluid

Dr. Downs also testified briefly at trial about possible seminal

fluid that had been found on the garbage bags from which the

victim’s body had been recovered. He testified, “That was

determined chemically but not confirmed by serology.” And he

continued:

Well, I’m not a forensic biologist, but what they do are screening tests and confirmation tests. So one test indicated that there was seminal fluid. Semen has two components, two major components again, kind of like saliva that we’re interested in. One is the chemical part, the ejaculate. The other is the cellular part, the semen. So you can have ejaculation, seminal fluid without the

84 deposit of sperm cells.

On cross-examination by Edenfield, Dr. Downs confirmed that the

presence of semen had not been confirmed, although trial counsel

seems to have understood the relevant confirmatory testing at issue

to have been DNA testing rather than more-standard serological

testing for the presence of sperm.

In his habeas testimony, Dr. Arden gave a comparable

explanation of the two components of male ejaculate, a “liquid

medium” and “the cellular component, which is the spermatozoa, the

actual sperm cells.” As to chemical testing for the presence of the

“liquid medium” on the garbage bags, he testified that there was

“one bag that was negative,” but he admitted that “the other four

bags” had “some results listed as weak positive” while also having

“results labeled as negative.” He explained that the weak-positive

results from the chemical “acid phosphatase” test for seminal fluid,

when combined with a negative chemical test for “P30,” which is

prostate enzyme, and a negative microscopic examination for

spermatozoa, “means that there was no semen found.” He continued:

85 “Sure, I suppose there is some possibility. There is no evidence for

it. There is no reason to make that conclusion, to support a

conclusion, but I guess pretty much anything is possible.” Then, on

cross-examination by the Warden, Dr. Arden acknowledged again

that the lab report that Dr. Downs received for use during his

autopsy showed the chemical presence of seminal fluid.

In his own habeas testimony, Dr. Downs on cross-examination

explained how the absence of sperm did not change his opinion about

the presence of seminal fluid on some of the bags, stating: “That’s

correct, because there’s different things. Sperm cells don’t

necessarily always accompany ejaculation. Not to get graphic, but I

think the lay use is ‘pre-cum.’”

Once again, our comparison of the two witnesses’ testimony

reveals no fundamental inconsistencies, as both affirm that one

chemical test indicated the presence of seminal fluid on some of the

bags but that no other confirmatory evidence was found, particularly

with regard to the presence of spermatozoa. Furthermore, any such

testimony, whether conclusive or not, would have been viewed by

86 the jury through the prism of Edenfield’s own admission that he

masturbated and rubbed his penis against the victim as he was

being raped, even marking on a photograph of the victim’s body

exactly where his penis made contact with the victim.

4. Injuries to Neck and Asphyxiation

The final topic of testimony discussed by Edenfield in his claim

here concerns the injuries to the victim’s neck and the mechanism

of death. Dr. Downs testified that he “did not see any significant

gross trauma” to the area but that he found “fresh blood” in his

microscopic examination of “the area of his windpipe, his voice box.”

He concluded that “the finding in the neck was consistent but not

diagnostic of the cause of death,” and he ultimately reached the

opinion that “Christopher died as a result of asphyxiation.” He

testified that his opinion was not affected by the lack of breakage of

the “hyoid bone” in the victim’s neck, because such bones in children,

unlike in adults, are “cartilage so they’re soft, bendable, flexible.”

Furthermore, as he testified, death by asphyxiation can be

accomplished with merely five pounds of pressure to the jugular

87 veins in the neck that service the brain, as compared to the ten

pounds of pressure required to block the carotid arteries in the neck

or the thirty pounds of pressure required to block the windpipe.

Thus, he explained, asphyxiation, which is simply the deprivation of

oxygen to the brain by any means, could have been accomplished on

the child victim by strangulation without causing more injury than

he observed on the body, particularly if the strangulation had been

accomplished with hands held flatly against the neck without

“digging [the] fingernails in.”

In his habeas testimony, Dr. Arden likewise testified that he

saw no injuries in his gross examination, which he performed only

by examining photographs of the victim’s body. However, he added

that he “would expect to find localized areas of bruising” and “would

also be very concerned about finding injuries either to the larynx

itself or to the hyoid bone above it.” He testified regarding his own

microscopic examination:

I did not see definitive hemorrhage. This is similar to one of the other earlier [microscope] slides that I discussed where I saw a few tiny areas of potential extravasation of

88 red blood cells from the blood vessels. But definitive hemorrhage? No. Widespread hemorrhage? No.

He added regarding the area of the hyoid bone that the “likelihood

of having grossly visible hemorrhage is actually quite large” where

there is manual strangulation. On cross-examination by the

Warden, he admitted: “It is possible to asphyxiate somebody without

leaving much bruising under certain circumstances.” And he again

acknowledged observing “very mild extravasation associated with

the larynx,” although “not the degree or extent of hemorrhage that

[he] would expect if this were indeed a real injury.” He summarized:

“In my opinion, the evidence is insufficient to diagnose it as a real

injury.” Nevertheless, Dr. Arden agreed with Dr. Downs that

asphyxiation was “the most likely mechanism of death” in some

manner, although he did not explain how it might have occurred in

the victim’s case.

Testifying in response to Dr. Arden’s habeas testimony, Dr.

Downs explained his opinion regarding the small amount of blood

visible in microscopic examination of the neck structures:

89 Basically with the eyeball examination, I didn’t really see anything, and that makes good sense, because the area here, the chin is down, so basically that area is going to be squeezed and it’s going to be, like, the livor mortis. It’s going to squeeze blood out of the specific area. . . . [Microscopically,] I did see interstitial blood or red blood cells in the soft tissues at the site adjacent to the larynx, which, again, with livor mortis, blood is going to settle with gravity, it’s going to go down. This is not a down area.

He reiterated his trial testimony regarding how death by asphyxia

can be accomplished with only “five to six pounds of pressure to block

the veins,” concluding: “It doesn’t take much pressure at all. It’s

certainly not a crushing type injury.” He also stood by his prior trial

testimony regarding the flexibility of cartilage in a child’s neck as

compared to solid bone in an adult’s neck.

On balance, Dr. Downs’s original trial testimony was not

significantly undermined by Dr. Arden’s habeas testimony,

particularly in light of Dr. Arden’s concessions on cross-examination

that the mechanism of death was asphyxiation and that

strangulation could have occurred without significant bruising.

5. General Analysis of Testimony

90 Considering Dr. Downs’s and Dr. Arden’s two sets of testimony

together, it appears to us that their opinions were not directly at

odds. Much of what they disagreed upon regarded merely the degree

of certainty of particular findings. And, as to that point, Dr. Downs’s

habeas testimony in response to Dr. Arden’s habeas testimony

provided compelling reasons for the habeas court to disregard many

of Dr. Arden’s criticisms. Much more importantly, however, is the

fact that, even assuming the correctness of Dr. Arden’s testimony, it

would have had little impact on the jury’s deliberations. In light of

the evidence as a whole, it is implausible that the jury would have

doubted that the victim was raped and then murdered by

asphyxiation. Dr. Arden’s testimony mostly just chipped away at

small edges of the State’s evidence, leaving the jury, if it had heard

Dr. Arden’s testimony at trial, with no reason to alter its verdict at

either phase of Edenfield’s trial. Thus, we conclude that Edenfield

has failed to show here that Dr. Arden’s testimony would in

reasonable probability have contributed to a different outcome at

trial. See Lee, 286 Ga. at 95 (II) (C) (concluding that the expert

91 testimony presented on habeas would not in reasonable probability

have changed the outcome if presented at trial).

F. Challenging Three Jurors

assistance regarding three jurors. We conclude that he has failed to

show deficient performance by counsel regarding any of these jurors.

First, Edenfield argues that trial counsel unreasonably failed

to move the trial court to excuse Juror T. F., who answered

affirmatively when asked during group voir dire whether she had

“ever been exposed to allegations of child molestation or child abuse

as a witness or just something that has occurred in family or close

relatives or friends.” She then stated during her individual voir dire

that she had been a “witness and a victim” in the prosecution of

“[c]hild molestation on [her] father.” When asked if she felt that her

experience “would affect [her] if [she] were to sit as a Juror in this

case,” she responded: “I don’t feel it affects me at all. I’m past that

part of my life and I’m over it, completely.”

We begin with the presumption that counsel’s actions were

92 reasonable, and that presumption is only buttressed by notes taken

by counsel’s jury-selection expert indicating that the juror seemed

to have no strong opinions about the death penalty, had made eye

contact during voir dire, and was “past that part of [her] life – over

it.” See Strickland, 466 U. S. at 689 (III) (“[A] court must indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. . . .”). In the absence of

further evidence suggesting otherwise, we conclude that trial

counsel did not render deficient performance regarding this juror.

See id.

Second, Edenfield argues that trial counsel rendered

ineffective assistance regarding Juror P. B. According to Edenfield,

the juror acted improperly by not revealing during voir dire, when

asked if he had been “exposed to the crime of murder,” that his

biological father had been charged with murder. To begin, we find

this assertion to be unpersuasive, as the juror’s response to the

vague question asked of him was not necessarily inaccurate.

Furthermore, the juror was later excused during the guilt/innocence

93 phase when he reported that the situation regarding his biological

father was causing him to have “intrusive thoughts.” Edenfield also

argues that trial counsel rendered ineffective assistance regarding

another juror, Juror A. D., to whom Juror P. B. commented about

his “intrusive thoughts.” According to Juror P. B.’s on-the-record

statements to the trial court, although Juror P. B. spoke to Juror A.

D. about his “intrusive thoughts,” Juror A. D. already knew about

Juror P. B.’s background from their being members of the same

church, and Juror P. B. had not expressed any opinions about

Edenfield’s case. Edenfield complains that Juror P. B.’s account of

his communications with Juror A. D. was only confirmed by a

discussion the trial court supposedly had with Juror A. D. that was

off the record and out of the parties’ presence. However, while we do

not condone the potential irregularity of this procedure,13 which the

13 We have held that a defendant has the right to be present whenever

the trial court discusses potentially prejudicial trial-related matters with the jury. See Hanifa v. State, 269 Ga. 797, 806-807 (6) (505 SE2d 731) (1998), disapproved on other grounds by Clark v. State, 315 Ga. 423, 435 (3) (b), 437 (3) (b) n.16 (883 SE2d 317) (2023). See also UAP, Introduction (“The defendant shall be present during all proceedings in the superior court.”). Thus the

94 record suggests as possibly but not conclusively having occurred, we

conclude that it does not show the trial court’s assessment to be

factually flawed. Under these circumstances, we conclude that

Edenfield has failed to show deficient performance by trial counsel

regarding either Juror P. B. or Juror A. D.

G. Challenging Alleged Prosecutorial Misconduct

Edenfield argues that his trial counsel rendered ineffective

assistance by failing to object to two arguments by the prosecutor.

Edenfield’s claim lacks merit as to both.

First, it was not improper for the prosecutor to argue that the

jury would hear Edenfield’s own confession to being “part of the acts”

and “what they were doing,” including the crime of aggravated child

molestation. In fact, Edenfield stated in his video-recorded

confession, as summarized by this Court on direct appeal, “that he

helped to hold Christopher down as George penetrated the child

procedure here, if it actually occurred, was irregular either because it failed to follow this rule or because any waiver of the rule by Edenfield was not placed on the record as required by the Unified Appeal Procedure. See UAP, Introduction (“All proceedings in the superior court shall be recorded and transcribed.”). 95 with his penis, both orally and anally,” and that he “rubbed his own

penis against Christopher and that he ejaculated on the child.”

Edenfield, 293 Ga. at 372 (1). See OCGA § 16-6-4 (c) (defining

“aggravated child molestation” as “an offense of child molestation

which act physically injures the child or involves an act of sodomy”);

OCGA § 16-2-20 (a) (“Every person concerned in the commission of

a crime is a party thereto and may be charged with and convicted of

commission of the crime.”). As the prosecutor’s argument was based

on the evidence presented and therefore was not improper, trial

counsel did not perform deficiently by not objecting to it.

Second, Edenfield argues that it was improper for the

prosecutor to argue that the death penalty would “deter” Edenfield

“from committing another crime like this.” In support of his

argument, Edenfield points to this Court’s holding that “it is

improper for the State to argue that a defendant will kill in prison

simply because he killed while free.” Henry v. State, 278 Ga. 617,

619 (1) (604 SE2d 826) (2004). However, even assuming that the

argument at issue here is forbidden by the holding of Henry, we

96 conclude that there is no reasonable probability that the argument

contributed significantly to the death sentence in this case, given the

strength of the evidence against Edenfield, including his own

admissions, and the heinous nature of the crimes. See Waldrip v.

Head, 279 Ga. 826, 833-834 (III) (620 SE2d 829) (2005) (assuming

that an argument by the State was improper but finding no

prejudice from counsel’s failure to object).

H. Collective Effect of Trial Counsel’s Deficiencies

As stated at the outset of this section, an ineffective assistance

of trial counsel claim will succeed if the collective effect of trial

counsel’s deficiencies in reasonable probability changed the outcome

of the trial. See Lane, 308 Ga. at 15-16 (1). We note that Edenfield

makes no particular argument regarding how these various claims

should be considered together as augmenting one another.

Nevertheless, considering the collective effect of the various

deficiencies either found or assumed above to have occurred in light

of our discussion of each of these various claims individually, we

conclude that no such reasonable probability exists as to either

97 Edenfield’s convictions or his sentences, including his death

sentence for the murder. See id.

III. Ineffective Assistance of Appellate Counsel Claim

Edenfield argues that his appellate counsel rendered

ineffective assistance by failing to raise a claim on appeal regarding

the funding of his trial defense and the trial court’s denial of a

continuance. An ineffective assistance of appellate counsel claim is

governed generally by the same law set forth above regarding

ineffective assistance of trial counsel claims, with a habeas

petitioner needing to show both constitutionally deficient

performance on the part of appellate counsel and resulting prejudice

of constitutional proportion in the form of a reasonable probability

of a different outcome. See Strickland, 466 U. S. at 687 (III); Battles

v. Chapman, 269 Ga. 702 (506 SE2d 838) (1998), overruled in part

by Shorter v. Waters, 275 Ga. 581, 584-585 (571 SE2d 373) (2002).

We agree with Edenfield that the appellate brief initially filed

in his direct appeal, whether as the result of confusion about

98 whether this Court might grant an extension of time for filing the

brief or some other cause, was patently “anemic” and unworthy of

the seriousness of the matter at stake. However, based on the rules

of this Court in effect at the time, a team of six attorneys

subsequently filed a thorough brief competently raising seven

claims of error. Nevertheless, in an argument spanning two

paragraphs and less than two pages, Edenfield argues that this

appellate team rendered ineffective assistance in failing to raise the

particular claims that the trial court erred by forcing him to go to

trial despite inadequate funding during the pretrial period and in

denying several motions for a continuance. But Edenfield, even here,

has never articulated a complete argument for relief on either of

these questions. First, Edenfield suggests that the rushed nature of

the appellate briefs ultimately filed “underscores appellate counsel’s

lack of strategy in not challenging these rulings.” But, of course, the

test is not whether counsel had time to develop a strategy. Rather,

the question is whether the representation falls within the scope of

representation a competent attorney could render. See Strickland,

99 466 U. S. at 687-691 (III) (A). Edenfield’s argument does not include

an explanation of how increased funding would have yielded a

different verdict. The fact that other attorneys handling different

cases during the same time period were able to secure favorable

rulings concerning funding that ultimately contributed to

bargained-for guilty pleas does not answer the pertinent question of

what would have likely happened in Edenfield’s case. Second, in

light of the broad discretion trial courts have when considering a

motion for continuance, Edenfield’s broad assertion that appellate

counsel should have used “helpful precedent” to litigate the trial

court’s denial of multiple continuance motions fails in two respects:

Edenfield does not explain a basis for why any of the denied motions

would have been reversed under an abuse of discretion standard;

and Edenfield provides no argument concerning how one or more

granted continuances would have produced a substantial likelihood

of a different outcome. Because we conclude that, even as now

presented in this habeas appeal, Edenfield has failed to demonstrate

that the trial court abused its discretion in managing the timing of

100 his trial in light of the funding difficulties that beset the case

through much of its pretrial proceedings, we see no merit to his

claim that the appellate team either rendered deficient performance

or caused him to suffer prejudice on appeal. See Head v. Ferrell, 274

Ga. 399, 410 (V) (C) (5) (554 SE2d 155) (2001) (holding that appellate

counsel do not perform deficiently by failing to argue a meritless

claim). See also OCGA § 17-8-22 (“All applications for continuances

are addressed to the sound legal discretion of the court. . . .”); Loyd

v. State, 288 Ga. 481, 487 (3) (705 SE2d 616) (2011) (concluding in a

death penalty case that the trial court had not abused its discretion

in denying the defendant’s motion for a continuance where counsel

allegedly “had insufficient time to prepare for trial”).

IV. Freestanding Claim of Intellectual Disability

In addition to claiming, as discussed above, that his trial

counsel rendered ineffective assistance at trial regarding his alleged

intellectual disability, Edenfield further makes a freestanding claim

that he is intellectually disabled and that his execution therefore

101 would be unconstitutional. See Atkins v. Virginia, 536 U. S. 304, 316

(III) (122 SCt 2242, 153 LE2d 335) (2002) (overruling prior

precedent to hold that the execution of an intellectually disabled

person would be unconstitutional). This claim is procedurally

defaulted because Edenfield, in the guilt/innocence phase, did not

seek a statutorily authorized verdict indicating intellectual

disability, nor did he raise such a claim on direct appeal; however,

the claim is nevertheless reviewable on habeas corpus in order “to

prevent a possible miscarriage of justice.” Young, 312 Ga. at 88 (25)

(a) (plurality opinion) (citing Turpin v. Hill, 269 Ga. 302, 303 (3) (b)

(498 SE2d 52) (1998); OCGA § 9-14-48 (d)). See OCGA § 17-7-131 (c)

(3), (j) (providing for a life sentence for any defendant who is

convicted but who can prove his or her intellectual disability beyond

a reasonable doubt in the guilt/innocence phase of his or her death

penalty trial). In this procedural posture, the petitioner must prove

intellectual disability beyond a reasonable doubt, which notably is

the same standard that the jury would have applied if the issue had

been raised at trial. See Holsey, 281 Ga. at 817 (III), overruled on

102 other grounds by Lane, 308 Ga. at 23 (Appendix).

Having already concluded above, in the context of Edenfield’s

ineffective assistance of trial counsel claims, that the new evidence

adduced by Edenfield in the habeas court regarding his alleged

intellectual disability would not in reasonable probability have led

to a verdict of guilty but intellectually disabled under a beyond a

reasonable doubt standard, see Holsey, 281 Ga. at 813 (II), we now

also conclude that that same evidence is plainly insufficient to

directly satisfy the beyond a reasonable doubt standard applicable

to this freestanding claim of intellectual disability under the

miscarriage of justice exception, see Ferrell, 274 Ga. at 411-413 (VI).

Furthermore, in reaching this conclusion, we also reject Edenfield’s

claim that the beyond a reasonable doubt standard applicable here

is unconstitutional, as this Court has recently rejected a similar

argument. See Young, 312 Ga. at 87-100 (25) (plurality opinion).

Judgment affirmed in part and case remanded with direction in Case No. S23X0261. Judgment reversed in Case No. S23A0260. All the Justices concur.

103 Decided June 29, 2023.

Habeas corpus. Butts Superior Court. Before Judge Oliver,

from Northeastern Circuit.

Christopher M. Carr, Attorney General, Beth A. Burton, Deputy

Attorney General, Sabrina D. Graham, Senior Assistant Attorney

General, Clint C. Malcolm, Tayo Popoola, Assistant Attorneys

General, for Caldwell.

Anna M. Arceneaux; Vanessa J. Carroll; Kilpatrick Townsend

& Stockton, James F. Bogan III, Bennett Richardson, for Edenfield.