Chatman, Warden v. Walker

• Court: Supreme Court of Georgia
• Decided: June 1, 2015
• Docket: S15A0260
• Status: Published

Opinion

297 Ga. 191 FINAL COPY

S15A0260. CHATMAN v. WALKER.

HINES, Presiding Justice.

In 2005, a jury convicted Gregory Walker of malice murder and related

crimes, and the jury fixed Walker’s sentence for the murder at death. This Court

unanimously affirmed Walker’s convictions and sentences. See Walker v. State,

281 Ga. 157 (635 SE2d 740) (2006). In September 2008, Walker filed a petition

for a writ of habeas corpus. In August 2014, following two hearings, the habeas

court granted Walker’s petition in part and denied it in part, letting his

convictions stand but vacating his death sentence. The Warden now appeals.

We affirm.

I. Factual Background

On the morning of June 8, 2001, Walker, along with Shedrick Tate and

Denise Green, were asleep in a room at the Howard Johnson motel in

Brunswick, Georgia. While they slept, Janeika Murphy, a motel housekeeper

and an acquaintance of Walker, surreptitiously entered the room and stole cash,

along with a cigar box containing marijuana and cocaine. Walker was “fuming” when he discovered that the cash and drugs were missing, and he spent the day

investigating the theft. Later that evening, Walker received a telephone call,

after which he informed his girlfriend that “he knew who had his drugs, and he

was going to get them.” Walker, 281 Ga. at 158 (1). Walker and Tate

proceeded to Murphy’s house on foot, where they forcibly removed Murphy

from her home. At Walker’s request, Green drove to Murphy’s house, and,

when she arrived, she observed Tate in the front yard holding Murphy at

gunpoint. Murphy was forced into the vehicle, and Green, following directions

provided by Walker, drove to a secluded area. Tate, Walker, and Murphy exited

the vehicle, and Green was instructed to “go around the block and come back.”

Walker subsequently shot Murphy numerous times. At some point during the

ordeal, Murphy sustained an injury consistent with being “pistol whipped,” but

gunshots to her head caused her death.

II. Ineffective Assistance of Counsel During the Sentencing Phase

A. Standard of Review

“An ineffective assistance of counsel claim must show that counsel

rendered constitutionally-deficient performance and that actual prejudice of

constitutional proportions resulted.” Hall v. Lance, 286 Ga. 365, 367 (II) (687

2 SE2d 809) (2010) (citing Strickland v. Washington, 466 U. S. 668, 687 (III)

(104 SCt 2052, 80 LE2d 674) (1984)). “This Court accepts the habeas court’s

findings of fact unless they are clearly erroneous, but we apply the law to those

facts de novo.” Perkins v. Hall, 288 Ga. 810, 812 (II) (708 SE2d 335) (2011).

Here, the habeas court’s factual determinations regarding trial counsel’s

mitigation investigation, preparation, and presentation are supported by the

record. Accordingly, the question for this Court is whether those findings are

sufficient to support the legal conclusions that trial counsel rendered

constitutionally deficient performance and that Walker was actually prejudiced

by that performance. See Hall v. McPherson, 284 Ga. 219, 220-221 (1) (662

SE2d 659) (2008).

B. Deficient Performance

1. Mitigation Investigation and Preparation

“[T]he Supreme Court [has] ‘emphasize[d] that Strickland does not

require counsel to investigate every conceivable line of mitigating evidence’ or

even ‘to present mitigating evidence at sentencing in every case.’” Hall v. Lee,

286 Ga. 79, 80 (II) (B) (1) (684 SE2d 868) (2009) (quoting Wiggins v. Smith,

539 U. S. 510, 533 (II) (B) (3) (123 SCt 2527, 156 LE2d 471) (2003)).

3 [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Strickland, 466 U. S. at 690-691 (III) (A). “In assessing the reasonableness of

an attorney’s investigation . . . a court must consider not only the quantum of

evidence already known to counsel, but also whether the known evidence would

lead a reasonable attorney to investigate further.” Wiggins, 539 U. S. at 527 (II)

(B) (1).

When lead counsel Richard Allen learned that the mitigation specialist of

his choosing was unavailable, he delegated responsibility for the sentencing

phase of the trial to his co-counsel, Edward Clary. Allen reasoned that it would

appear inconsistent if he advocated for Walker’s innocence during the

guilt/innocence phase of the trial but then asked the jury for mercy if it returned

a guilty verdict. Edward Clary was no stranger to developing mitigation. Clary

testified in the habeas court that, in his previous capital cases, he had not used

4 a mitigation specialist; instead, he had been the one to develop the mitigation.

Clary explained, though, that when he “got into the Walker case [he] became

aware that the [American Bar Association] had said their approved standard now

required that [a defense team] have a mitigation specialist to assist the lawyers.”

In February 2004, Clary moved the trial court for funds to hire a mitigation

specialist. In support of his motion, Clary argued that case law, as well as

guidelines set out by the American Bar Association, indicated that “for a defense

team in a death penalty case to go forth without the assistance of a trained,

skilled, and knowledgeable mitigation specialist [would be] ineffective

assistance of counsel on its face.”1

Clary subsequently contacted William Scott to act as a mitigation

specialist. Clary testified that Scott had been recommended by someone with

whom Clary had worked in a previous capital case. At their initial meeting,

Scott represented that he held a “Ph.D.,” insisted that he be addressed as “Dr.

Scott,” and represented that he had training and experience specific to capital

cases. Scott’s curriculum vitae, however, reflected only a general reference to

1 But see Hulett v. State, 296 Ga. 49, 67 (5) (c) (i) (766 SE2d 1) (2014) (concluding, “as several other courts have, that the failure to hire a mitigation specialist does not necessarily demand a finding of deficient performance”).

5 participation in capital cases and did not indicate that he held a doctorate.

Nonetheless, both attorneys were initially impressed by Scott. Clary testified

that he took Scott “at face value” because of the fact that he had been

recommended, and Allen testified that Scott “sold himself” to the attorneys and

that they did not “vet” him. In April 2004, more than two years after Walker

was indicted and approximately three months before Walker’s original trial

setting, trial counsel secured funding to hire Scott as a mitigation specialist. In

May 2004, the defense team moved to continue the trial date on the basis that

Scott needed additional time to conduct his mitigation investigation, and the trial

was continued until late January 2005.

After retaining Scott, Clary delegated responsibility for developing

mitigation to him. Clary explained that he deferred to Scott because he expected

him to be a “mitigation manager and expert” and that he “expected [Scott]

would do a far better job than he would do and would have all these records and

documents.” Clary expected that Scott would travel to locations where Walker

had lived, work closely with Walker’s family, acquire an extensive family

background, and secure appropriate records. In contrast, Scott testified during

the habeas hearing that Walker’s case was his first as a mitigation expert, that

6 he “relied on counsel to sort of lead [him] as to what [his] role would be,” and

that he depended on trial counsel to obtain various records. Additionally, the

evidence presented at the habeas hearing indicates that Scott did not, in fact,

hold a doctorate. Although Scott testified that he disclosed his “limited

experience” to trial counsel, Clary testified that he did not know that Scott did

not have previous mitigation experience and did not know that Scott did not

hold a doctorate.

From May 2004 through October 2004, Scott submitted periodic invoices

detailing his work, and those invoices were submitted by trial counsel to the trial

court for payment.2 Scott’s billing records reflect that he billed for eighty-two

hours of work during this time period: twenty-six hours reviewing records

related to the criminal investigation and proceedings; sixteen hours interviewing

or evaluating Walker; fifteen hours conferencing or consulting with various

members of the defense team; six hours for unspecified mitigation work; five

hours interviewing four members of Walker’s family; four hours interviewing

2 We do not consider the billing records for the truth of the matter asserted; instead, we consider the records “as an indication of the information known to defense counsel at the time they made their decision[s] regarding mitigation strategy.” Hall, 286 Ga. at 85 (II) (B) (3), n. 3.

7 Walker’s mother; four hours interviewing Walker’s girlfriend; four hours

preparing a report; and two hours preparing for a “psychiatric hearing.”3

In his habeas testimony, Scott testified that he first interviewed one of

Walker’s aunts who lived in St. Marys, Georgia, and then, on two or three

occasions, met with Walker’s mother and other relatives in Atlanta. Scott

recalled that it was Walker’s “mother and grandmother [who] were the people

[he] spent the most time with” and that there also “was an aunt in College Park

who[m he] . . . talk[ed] to often on the telephone about [Walker].” However,

Scott explained that, while Walker’s mother, Deborah Lee, was “cooperative”

and “candid,” she “seemed reluctant at the time to meet with [him].” Scott did

not think that she was forthcoming or that she had “much to add to anything.”

Likewise, Scott testified that his conversations with the aunt in College Park

“were more where she was just lamenting about [Walker’s] situation rather than

offering . . . any good information.” In contrast, Lee testified during the habeas

proceedings that, although Scott asked “a few general questions” about Walker,

3 Scott also billed a total of 16 hours for “travel time” to St. Augustine, Florida, and to Atlanta, Georgia. Scott did not bill for work in November or December 2004, and, although he eventually billed for work in January 2005, those records were not submitted and approved until after Walker’s trial.

8 he spent the majority of the time discussing “his role as a mitigation expert” and

“did not ask any involved or detailed questions about [Walker’s] life.” Lee

testified that she provided Scott with a list of Walker’s schools and places of

employment, and she recalled that she later located other records but that Scott

never asked for them. According to Lee, she was not asked to provide a detailed

account of Walker’s life until the habeas proceedings.

Scott also testified in the habeas court that other family members had

information about Walker but that he felt as if they did not want to get involved.

Scott recalled that, during a group meeting, various family members left the

room and would not participate. Scott also testified that, although various

family members would promise to be available at a later time, “telephone calls

wouldn’t be returned, that kind of thing.” Scott further explained that he did not

contact any of Walker’s previous employers because he did not think that

Walker’s work history was significant. Likewise, Scott testified that he

attempted to contact unspecified non-family members but that those individuals

had “moved on to other positions and couldn’t be found, or were reluctant to

speak to [him] and get involved.”

9 In October 2004, approximately three-and-a-half months before trial, the

defense team selected Earnest Miller, M.D., as its psychiatric expert. The

defense team hired Dr. Miller based on Scott’s recommendation. Scott testified

that he wanted Dr. Miller on the case, at least in part because he “couldn’t

discover too much wrong with [Walker]” and could not “tease out” why Walker

had committed the murder. Dr. Miller subsequently evaluated Walker. In his

written report to trial counsel, Dr. Miller explained that Walker was “a product

of a dysfunctional family and [that] [Walker’s] father was a dependent user of

street pharmacologicals.” Dr. Miller also explained that Walker was aware of

his father’s use of illegal drugs, that Walker could recall physical altercations

between his parents, and that Walker’s father was murdered when Walker was

a teenager. According to the evaluation, there was “a family diathesis of

alcoholism” and there were substance abuse problems “in both first and second-

degree relatives.” In his report, Dr. Miller identified and detailed five areas for

potential mitigation:

a history of childhood exposure to a dysfunctional home environment and role modeling encouraging or suggesting intemperate use of street drugs; the impact of early loss of his father by traumatic means; the demonstrated ability to establish reasonably sustained and supportive relationships with females, and dependent

10 child; the absence of behavioral characteristics during childhood suggestive of conduct disorder which is a precursor of an anti-social personality; and, the presence of a severe personality disorder.

Dr. Miller explained that Walker “developed defenses” that were “self-defeating

and led to maladaptive behaviors.” According to Dr. Miller, Walker’s

difficulties likely resulted from “the environment of his critical development

period.” Dr. Miller opined that Walker’s mother had to contend with the

“disturbance” caused by Walker’s father and that she “perhaps did not have

sufficient interactive time for attention and emotional support of her son.”

In early January 2005, Clary asked Scott to provide a written overview of

his work. In response, Scott faxed Clary a half-page summary of his work and

conclusions, along with four pages of sparse handwritten notes. Scott noted in

his summary that he had conducted a “psychological test on Walker” but that the

test was invalid, and he explained that he had “been unable to obtain Walker’s

education and medical history.” Although Scott indicated in his summary that

he generally found Walker to be “unremarkable,” he suggested the following

avenues for mitigation: “Walker’s history as a good kid, the trauma of his drug

dealing father’s death, and his absentee mother during his teen years.” Scott

later sent Clary what amounted to a script for his anticipated testimony. The

11 script was approximately two-and-a-half pages long, and, although it included

approximately a dozen proposed questions and answers, only a few of them

were designed to provide any significant detail about Walker. Scott explained

during his habeas testimony that he never developed a mitigation theory

“because there wasn’t a lot of mitigation that [he] was able to discover,” unlike

another case in which he had discovered that a defendant had “walked

backwards for the first four years of his life.” In his habeas testimony, Scott

acknowledged that there was nothing that the habeas court could examine, such

as a report or a file, to review his mitigation work in the case.

In contrast, Dr. Miller prepared for trial a four-page outline supplemented

with information that he obtained by speaking with Walker’s mother and aunt.

The following areas of “possible mitigation” were identified and explained in

Dr. Miller’s outline: history of childhood exposure to domestic violence and

harsh physical discipline; history of early childhood exposure to alcohol and

drugs; traumatic loss of a loved one (father); personality disorder and lack of

competent treatment and follow-up; and genetic contributory factors. Dr. Miller

recommended that Clary, in preparing Scott to testify, “focus upon some of the

12 consequences of violence being witnessed in the home in terms of problems in

later bonding, forming trusts, feelings of insecurity, vulnerability, and the like.”

As the trial neared, both Allen and Clary had concerns with Scott’s level

of preparation. The attorneys were concerned that Scott had not traveled as he

had represented that he would, had administered only a single, invalid

psychological test, had only basic notes, and had not produced a report. Allen

testified in the habeas court that, although he was concerned about the level of

preparation for the sentencing phase of trial, he was focused on obtaining an

acquittal. Allen also believed that there was insufficient time to change experts

and that there were “slim pickings” for mitigation specialists. Clary testified

that he “thought maybe, some way, [he, Clary,] could pull it together” before

trial, and he was able to secure some of Walker’s school records in advance of

trial. Although Clary testified that he worked with Scott and Dr. Miller to

prepare their respective testimonies, he also testified that he followed the

“outlines” that had been provided by the experts because he trusted their

expertise.

Finally, trial counsel testified at the habeas hearing that they were unable

to convince Lee that, should Walker be found guilty, she would need to testify

13 on Walker’s behalf during the sentencing phase of the trial. Clary testified in

his habeas deposition that he met with Lee in her home and discussed with her

the importance of her testimony but that Lee was unwilling to testify. Clary

acknowledged, however, that he did not push Lee, whom he described as a

“tough-minded business woman,” and that he “acceded to her position” because

of her business acumen. Similarly, Allen testified in the habeas hearing that he

spoke to Lee about the importance of her testimony but that Lee did not want to

testify. Allen noted that he, like Clary, did not “push” the issue and that the only

time that he could specifically recall asking Lee to testify was right after the jury

announced its verdict of guilt. On the other hand, Lee testified during the

habeas hearing that, although she did not testify at Walker’s trial, she was

willing to testify. According to Lee, she was led “to believe there was no need

for any mitigation because [Walker] was probably going to be acquitted.” Lee

testified that, although she was doubtful that Walker would be acquitted, it was

her understanding that “the doctor was the main and chief witness for [Walker]”

in the event a mitigation presentation was necessary. Lee claimed that, after

Walker was convicted, she was casually asked if she wanted to testify but that

14 “no one on the defense team ever conveyed to [her] the importance of [her]

testimony or exactly what [she] should talk about.”

2. Mitigation Presentation at Trial

Trial counsel presented the testimony of three witnesses during the

sentencing phase of trial: Scott; Dr. Miller; and Joann Bishop, Walker’s aunt.

Scott was the first to testify. Scott explained that he evaluated Walker and that,

during the course of his evaluation, he administered the Psychiatric Assessment

Inventory, a “personality test.” Scott explained, however, that the results from

the personality test were unreliable because they were “exaggerated,” but he did

not specify why the results were exaggerated.

When asked about “areas of concern and importance” regarding Walker,

Scott responded that he “hoped” that he could remember everything because he

was testifying without his notes. Scott testified that he and Dr. Miller “basically

found” that Walker was “flourishing” until the age of 15, when Walker’s father

was murdered. Scott also testified that Walker’s father “had a drug and alcohol

habit[,] which [Walker] was witness to,” and that Walker witnessed violence in

the home, which was “traumatic” for Walker. According to Scott, after the

death of Walker’s father, Walker “tried to assume the role as the father figure

15 in the home” but “wasn’t prepared to do that at age 15, and that began a series

of failures for Walker.” Scott further testified that Walker failed to be a father

figure, failed in school and at jobs, and “got in trouble with the law.” Similarly,

Scott explained that Walker had conflicts with his stepfather and eventually left

home. Scott testified that it was his clinical opinion that Walker’s lack of

success was a result of “multi-factoral situations, but one of those factors was

the death of his father.” When asked to elaborate, Scott testified that “the

impact of [Walker’s] genetic background and . . . the environment he lived in

created some characterological problems for [Walker] that he was just not able

to overcome as an adult, and many people are like this.” Scott concluded his

direct testimony by stating that Walker was not “an evil person” but that he

“didn’t stand a chance” and that “the planets moved at such a way as to put

[Walker] in a position at a time in his life where he just didn’t make very good

judgments about things.”

On cross-examination, Scott explained that he did not administer any tests

other than the invalid personality test and that, although the test was invalid,

“many of the things that the test revealed . . . correspond[ed] to [his] clinical

impressions,” such as “substance abuse and chemical dependence.” Scott also

16 testified that he reviewed Walker’s school and medical records, that he

conducted “an extensive psycho/social history” on Walker, and that he met with

a number of Walker’s family members. He acknowledged, however, that he did

not gather information from non-family sources, such as “school officials,”

“friends or neighbors,” or “teachers.” Regarding his impressions of Walker,

Scott testified on cross-examination that Walker “was doing well” until the

death of his father, “which was a sentinel point in [Walker’s] life.” Scott

explained that Walker “idolized” his father and “lost his anchor” after his death.

According to Scott, Walker compensated for his father’s death by attempting to

take on a dominant role in his home, and, while this resulted in Walker’s

becoming protective of his siblings, it also resulted in conflict with his

stepfather. Regarding Walker’s exposure to domestic violence, Scott agreed

with the State that Walker was doing well until the death of his father despite the

violence in the home and that the violence “didn’t appear to impact” Walker.

Scott then explained that, while he could not say “definitively” or “absolutely”

that the violence impacted Walker, “statistically and experientially” a “child

that’s exposed to violence in a home has to suffer from that in some way.”

Finally, Scott testified that he found no evidence that Walker suffered “physical

17 abuse or sexual abuse or emotional abuse, although . . . violence in any family

home . . . causes some emotional abuse.”

Dr. Miller testified that he evaluated Walker, spoke with Walker’s family,

and reviewed the results of an MRI scan of Walker’s brain. According to Dr.

Miller, Walker was a product of both his genetics and his upbringing.

Specifically, Dr. Miller noted that Walker’s father and cousin were heavy drug

users and that, as a result, Walker was eight times more likely to become a drug

user himself. In addition to this genetic component, Dr. Miller testified that

Walker was acutely aware of his father’s drug use and that Walker had

discussed drug usage with his father. Likewise, Dr. Miller testified that, because

Walker had family members who suffered from bipolar disorder, Walker had an

“increased vulnerability and risk” of mental illness as compared to the general

population.

Dr. Miller testified that Walker was exposed to family violence and that,

according to Walker’s mother, Walker would “cringe in fear” while witnessing

the violence. Dr. Miller explained that it makes no difference whether a child

is abused or whether a child witnesses the abuse, because the outcomes are

identical. According to Dr. Miller, “when a kid sees abuse and no one explains

18 it to him or no one separates [him] from it,” that child will develop problems

such as drug usage and social isolation. Consistent with this expectation, Dr.

Miller testified that Walker’s mother reported “difficulties” with Walker “even

earlier than the teen years” and that Walker was difficult to manage in his

childhood and adolescence. Dr. Miller explained that, even though Walker

witnessed his father “administer beatings” to his mother and was keenly aware

of his father’s involvement in the “drug culture,” Walker still admired his father

and loved him. According to Dr. Miller, the murder of Walker’s father, which

Dr. Miller testified occurred on Walker’s sixteenth birthday, had an “immediate

effect” on Walker. Dr. Miller testified that, following the death of Walker’s

father, Walker wept, raged, became extremely angry, experienced a personality

change, became more rebellious, and attempted to assume a dominant role in the

household. Dr. Miller explained that Walker’s mother sent Walker to live with

her sister but that Walker’s aunt was unable to manage him.

Finally, Dr. Miller testified that, although Walker’s MRI showed no

abnormalities or problems, Walker suffered from substance abuse and substance

dependence and exhibited characteristics of an unspecified personality disorder

in the “Cluster-B category.” Dr. Miller explained that individuals with

19 personality disorders are paranoid, defensive, impulsive, destructive, frustrated,

and easily angered and that they can manipulate others, be narcissistic, and

exhibit “psychopathic hysterical features.” Dr. Miller testified that this type of

individual turns to intoxicants to “escape pain.” Regarding Walker specifically,

Dr. Miller noted that Walker was a heavy user of marijuana laced with cocaine

and that Walker used intoxicants as an escape and to “compensate for feelings

of fear, inadequacy, guilt, not being able to protect his mother, not being able to

succeed in school,” and generally “not being successful.”

On cross-examination, Dr. Miller acknowledged that Walker had two

younger siblings, ages 19 and 23, who both were in school and “doing quite

well.” Dr. Miller also conceded that Walker had characterized his relationship

with his father as “good” and his relationship with his mother as “wonderful.”

Dr. Miller was asked if Walker had indicated that he had been an honor roll

student, and Dr. Miller responded that he was informed by Walker’s mother that

Walker had struggled in school. When pressed on the subject, Dr. Miller

acknowledged that, had Walker made those grades, it would be inconsistent with

the information that Dr. Miller had received. Dr. Miller was also asked whether

Walker ever indicated that he had recovered from the death of his father within

20 a matter of days or weeks. Dr. Miller responded that Walker had never made

that statement to him and that such a statement would be inconsistent with

Walker’s behavior following his father’s death. Dr. Miller elaborated, stating

that Walker acted out and was rebellious following the death of his father in

response to the depression and loss. Dr. Miller also explained that Walker’s

ability to recover from the death of his father was stymied by the presence of a

stepfather who was cold, aloof, and detached.

During redirect examination, Dr. Miller testified that the idea that Walker

earned good grades until his father’s death contradicted what he had learned

from Walker and his family. Dr. Miller also testified that the idea that Walker

had recovered quickly from the death of his father would have been inconsistent

with Walker’s behavior following the death of his father and inconsistent with

his professional findings.

Finally, the defense presented the testimony of Joann Bishop, Walker’s

aunt. Bishop testified that, after Walker’s father was murdered, Walker lived

with her in St. Marys, Georgia. Bishop testified that, while in St. Marys, Walker

helped out at her place of business, and she remembered Walker to be “very

respectful” toward her and other family members. She also testified that,

21 although Walker eventually became “a bit much to handle,” she did not have

any “real problems” with him. Bishop then testified that Walker was raised by

a mother who “instilled the fear of God in him,” and she asked the jury for

mercy.

In its closing argument, the State argued that, although Walker’s family

had “problems,” there was no evidence that Walker had been abused or that

Walker had “a really rough upbringing in his home.” The State contended that

Walker’s “childhood wasn’t that bad” and that Walker’s brother and sister, who

were raised in the same environment, “seem[ed] to be fine.” The State disputed

that “[t]he planets moved in such a way that [Walker] made bad judgments,”

arguing that there was no evidence presented that Walker “never stood a

chance” and arguing that, “for the most part,” Walker “[c]ame from a good

home.” The State characterized Walker as “just mean” and asserted that the

murder, which was not borne of impulse or “heat of passion,” was a “vicious”

and “cold-blooded” execution that evidenced a “total, utter disregard for human

life.” The defense argued that the State had not proven the various statutory

aggravating circumstances. The defense also argued that Walker should have

the right “to supplement his life by some future acts of atonement” and that the

22 “atonement may only be exercised . . . in the cold, gray walls” of prison where

Walker would be forever “cut off” from his family.

3. Analysis of Performance

The habeas court concluded, and we agree, that “[t]rial counsel

inadequately investigated possible mitigation evidence and inadequately

presented the mitigation case.” As a threshold matter, we disagree with the

Warden that, “in concluding that trial counsel was deficient in the investigation

of evidence in mitigation,” the habeas court “wrongly appropriated” the

American Bar Association Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases and “graded” the performance of trial counsel

based on those guidelines. As in another case,

[w]e find no merit to the Warden’s argument that the habeas court erred as a matter of law by relying upon the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. . . . Upon review of the habeas court’s order and the record, we conclude that the habeas court

conduct[ed] an objective review of [counsel’s] performance measured for “reasonableness under prevailing professional norms,” [cit.], which include[d] a context-dependent consideration of the challenged conduct as seen “from counsel’s perspective at the time.” [Cit.]

23 McPherson, 284 Ga. at 221 (2) (quoting Wiggins, 539 U. S. at 524 (II) (B) (1)).

Acting on the perceived need to hire a mitigation specialist, trial counsel

hired Scott without any investigation into his qualifications and then delegated

to him responsibility for the mitigation investigation without sufficient

supervision. Although trial counsel expected that Scott would be the mitigation

“manager” and “expert,” Scott believed that his investigation would be led by

the attorneys. Even if these mismatched expectations were not immediately

known to trial counsel, they should have become apparent. The majority of

Scott’s work was completed in the first few months after he was hired and, when

“he couldn’t discover too much wrong” with Walker, Scott recommended that

trial counsel hire Dr. Miller. While Dr. Miller identified a number of possible

avenues for mitigation, there is no evidence to suggest that Scott or trial counsel

undertook an adequate investigation as a result of Dr. Miller’s findings. In fact,

Scott’s billing records reflect that he interviewed various members of Walker’s

family for the first and only time months before Dr. Miller was hired. Although

the record supports Scott’s testimony that, at times, it was difficult to obtain

information and records from Walker’s family, Dr. Miller had expressly

identified a number of avenues for mitigation related to Walker’s family and

24 upbringing. Under these circumstances, encountering an unhelpful family

should have led to additional investigation, not to its conclusion. See Wiggins,

539 U. S. at 527 (II) (B) (1) (“In assessing the reasonableness of an attorney’s

investigation, however, a court must consider not only the quantum of evidence

already known to counsel, but also whether the known evidence would lead a

reasonable attorney to investigate further.”).

Furthermore, by January 2005, trial counsel were aware that Scott had not

traveled as promised, had not secured records as expected, had not followed up

on Dr. Miller’s recommendations, and had produced little work product. Scott’s

failings were apparent from his half-page summary, which showed that he had

not secured or reviewed records and that he was relying on Dr. Miller’s work,

rather than his own, to reach his conclusions. Further, even though Scott

reported that he was relying on Dr. Miller’s work, Scott’s summary should have

alerted trial counsel that Scott and Dr. Miller had very different impressions of

Walker. Specifically, Scott found Walker to be a “good kid” and generally

“unremarkable,” and he recommended that trial counsel focus on Walker’s

“absentee mother” and the death of Walker’s “drug-dealing father.” In contrast,

Dr. Miller concluded that Walker came from a dysfunctional home, that Walker

25 was exposed to domestic violence and drug use, and that Walker had a family

history of substance abuse and mental illness. We agree with the habeas court

that, “at this point, counsel were aware that their mitigation specialist had not

conducted much of an investigation” and that trial counsel unreasonably failed

to request a continuance to allow for further investigation or take other remedial

measures.4 Although Dr. Miller followed up with Walker’s mother and aunt in

preparation for trial, his account of Walker’s life provided, at best, an overview

and was cause for further investigation.

Unsurprisingly, the circumstances of the mitigation investigation,

including a lack of preparation and the competing conclusions about Walker,

were evident at trial. The trial record reflects that Clary did not act on Dr.

Miller’s recommendation regarding Scott’s trial testimony. Instead, he utilized

Scott’s prepared script, even though both trial counsel were concerned with

Scott’s investigation and even though the script, on its face, elicited very little

meaningful information about Walker and contradicted Dr. Miller. The trial

record also reflects that Scott was unprepared to testify. Scott’s testimony

4 Although trial counsel moved for a continuance shortly before the sentencing phase of trial, that motion was made in response to the State’s questioning Dr. Miller’s credentials, not because trial counsel sought additional time for mitigation investigation and preparation.

26 eventually devolved into opinions about Walker’s characterological problems

and the alignment of the planets. While these comments may seem innocuous

in a cold record, Clary recalled that the “jury did not react well to [the] absurd

commentary.” Clary explained that “about three or four jurors look[ed] at each

other like ‘what’s he saying that for,’” and Clary recalled that the normally

composed trial judge looked startled by the testimony. Allen, too, believed that

Scott’s testimony was damaging, and both attorneys testified that heated words

were exchanged with Scott outside of the courtroom following his testimony.

The manner in which Scott’s testimony was received by the court and jury is

uncontradicted and, in fact, is corroborated by e-mails found in the habeas

record which reflect that Scott’s testimony was a source of conflict within the

trial team even after the trial.

Dr. Miller’s trial testimony, though more informed, was largely

conclusory and was at odds with Scott’s testimony. Specifically, Dr. Miller

testified that Walker was affected by the domestic violence and that Walker had

long-standing “difficulties” beginning well before the murder of Walker’s

father. Moreover, even though the murder of Walker’s father was apparently a

focal point of the mitigation presentation at trial, neither Scott nor Dr. Miller

27 accurately identified the age at which Walker lost his father and, in fact, gave

inconsistent answers on the topic. Finally, while the evidence presented to the

habeas court is conflicting, there is sufficient evidence to support the habeas

court’s conclusion that trial counsel failed to adequately advise Lee of the

importance of her testimony and that, had trial counsel appropriately discussed

with her the importance of her testimony, she would have testified.

We agree with the habeas court that this was not “a situation in which a

reasonably prepared mitigation case [fell] apart upon presentation.” Instead, it

was “a situation in which grossly inadequate preparation” combined with “an

unqualified mitigation specialist yielded a predictably poor result.” In the end,

the mitigation investigation in this case yielded little information about Walker,

and that was evident by the mitigation presentation. In light of the foregoing,

we conclude that trial counsel’s mitigation investigation and preparation were

not reasonable and that trial counsel’s performance was constitutionally

deficient. The question, then, is whether Walker was actually prejudiced by the

failures of trial counsel.

28 C. Actual Prejudice

“To determine prejudice in the sentencing phase of a case challenging a

death sentence, ‘the question is whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.’” Lee, 286 Ga.

at 86-87 (II) (B) (4) (quoting Strickland, 466 U. S. at 695 (III) (B)). See also

Humphrey v. Morrow, 289 Ga. 864, 867 (II) (717 SE2d 168) (2011) (“[A]

reasonable probability of a different outcome exists where ‘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.” (quoting Wiggins, 539 U. S. at 537 (III))). In our review, we “must

consider the totality of the available mitigating evidence in reweighing it against

the evidence in aggravation, while being mindful that a verdict or conclusion

with overwhelming record support is less likely to have been affected by errors

than one that is only weakly supported by the record.” Sears v. Humphrey, 294

Ga. 117, 131 (II) (D) (751 SE2d 365) (2013).

The habeas court concluded that, had trial counsel conducted an adequate

mitigation investigation, they would have discovered additional evidence in a

29 number of areas. The habeas court’s finding that such evidence was available

to trial counsel was not clearly erroneous. Accordingly, we address as a matter

of law the prejudicial impact of trial counsel’s failure to discover that evidence

for use at trial. We need not address all of the evidence presented at the habeas

hearing, because we conclude that the prejudice resulting from the omission of

mitigation evidence in those areas discussed below is sufficient to sustain

Walker’s claim.

1. Domestic Violence Between Walker’s Parents

Walker’s mother, Deborah Lee, testified that her ex-husband and Walker’s

father, Greg Walker, “was a terribly jealous, paranoid, angry, and violent man.”

Lee characterized “the first roughly ten years of [Walker’s] life” as a “‘life of

running’ because [she] was always looking for ways to run away from [Greg

Walker].” Lee explained that her altercations with Greg Walker began when

Walker was approximately a year old and the family was living in California.

According to Lee, the fights started with arguing, pushing, and slapping but then

escalated to Greg Walker’s punching her in the face. Lee testified that Walker

“was there for every fight,” and Lee recalled that Walker became scared of Greg

Walker and would be “very still and quiet” when Greg Walker was present.

30 According to Lee, Walker “got to a point where he wouldn’t play anymore” but

“would sit in a corner and stare off into space.”

This family situation did not improve when the family relocated from

California to Lee’s hometown of New Orleans, Louisiana. Lee testified that,

when Walker was approximately two or three years old, the fighting intensified.

Lee recalled that she began fighting back against Greg Walker and that the

fights became “bloody.” Lee detailed fights with Greg Walker that involved

household items used as weapons, such as a glass soda bottle, ceramic banks, a

pan of hot water, a frying pan, a drinking glass, an umbrella, and a “butcher

knife.” Lee testified that, after one particular fight, she required stitches, and

Greg Walker was left with a broken hand. In addition to injuries, Lee testified

that the various fights resulted in property damage, such as a broken window,

a broken-down door, and a hole in a wall. According to Lee, “[t]he fights were

daily,” and Walker responded by screaming, sobbing, running to his room, and

climbing into his bed.

Lee testified that she left Greg Walker on a number of occasions,

temporarily relocating to her parents’ house or “running” to California, but that

she always returned to him. After several more years of abuse and household

31 chaos caused by Greg Walker, Lee decided to leave for the “last time,” but Greg

Walker discovered Lee as she was attempting to leave. According to Lee, Greg

Walker was able to “jump in the car” with Lee and the two children, and he

drove the family to a levy, where he said they “were all going to die together.”

Lee testified that she believed that he would drive the family into the water and

drown them all. According to Lee, she and the children begged him for their

lives, and he relented and drove the family back home after being convinced that

Lee would not leave. Shortly after the levy incident, Lee left with the children

and filed for divorce. Lee and Greg Walker were officially divorced in mid-

1986, when Walker was seven years old. Lee testified, however, that she

continued to live in New Orleans and that Greg Walker continued to harass the

family. Lee recounted an incident shortly after the divorce during which Greg

Walker attempted to force his way into Lee’s residence and Walker raced

around the house, yelling in fear. In August 1987, when Walker was eight-and-

a-half years old, Lee moved with the children back to California, though Greg

Walker continued to have custody of the children during the summer months.

Lee noted that, because of the timing of the abuse and divorce, Walker’s siblings

“were never subjected or exposed to the same violence as [Walker].”

32 Other witnesses also testified in the habeas court regarding the violence

between Lee and Greg Walker. Walker’s sister, Latanya Gobin, who is

approximately three years younger than Walker and was in medical school at the

time of her testimony, testified that her earliest memory was of Walker

consoling her during a physical fight between her parents. Joann Bishop,

Walker’s aunt who testified at trial, explained to the habeas court that she was

aware that Greg Walker and Lee fought and that she helped Lee leave Greg

Walker. According to Bishop, Greg Walker “wasn’t going to let [Lee] leave if

[they] hadn’t done it behind his back.” Meredith Tillman, also Walker’s aunt,

testified that she heard Lee and Greg Walker argue and observed injuries on

Lee, such as bruises and scratches. Janis Holliday and Charles Haywood, both

of whom were longtime friends with Lee, also testified regarding the domestic

abuse. Both Holliday and Haywood testified that they observed injuries on Lee,

that they heard Greg Walker threaten Lee, and that Lee left Greg Walker a

number of times but always returned. Although Haywood acknowledged that

he never actually observed the abuse, Holliday testified that she heard Greg

Walker cursing at Lee and that she observed him “grab [Lee] by the head and

. . . yank her hair.” According to Holliday, both Walker and Gobin were

33 “adorable little kids” when they were away from home but were “withdrawn”

at home.

The domestic violence testimony elicited during the habeas hearing is

significant in a number of respects. First, the testimony is consistent with Dr.

Miller’s mitigation theories, which he communicated to trial counsel pretrial,

and, thus, is precisely the type of testimony that Dr. Miller’s theories should

have prompted trial counsel to obtain. Second, the domestic violence testimony

shows the detailed and consistent narrative that could have been presented at

trial. At trial, only Scott and Dr. Miller testified regarding Walker’s exposure

to domestic violence, and their testimony was ambiguous and impersonal. Scott

testified at trial that Walker witnessed “violence in the home” and that this was

“traumatic” for Walker, but he pointed to no specific instances of domestic

violence. Scott also testified at trial that the domestic violence “didn’t appear

to impact” Walker, and, more confusing still, he explained that he could not

“absolutely” or “definitively” say whether Walker was “hurt” by the violence

in the home, only that it was statistically likely. Dr. Miller, though less

equivocal about the impact of the domestic violence on Walker, still failed to

relate the depth of domestic violence apparently present in Walker’s home. On

34 the other hand, Lee provided extensive details in her habeas testimony regarding

the abuse, described numerous specific instances of abuse, and explained how

it impacted Walker. The testimony of Gobin, Bishop, Holliday, and Haywood,

while less specific, corroborated Lee’s account and described the impact that the

abuse had on Walker. Third and finally, the habeas testimony distinguished

Walker’s life experience from that of his two siblings and could have helped

explain why Walker’s siblings, in contrast to Walker, were “doing quite well”

at the time of Walker’s trial.

2. Physical Abuse and Extreme Physical Discipline

Lee testified that Walker was a target of Greg Walker’s abuse. Lee

testified that Greg Walker called Walker “worthless and stupid,” and she

recounted an incident in which Greg Walker “whipped” Walker with a leather

belt “for about 20-30 minutes,” leaving welts all over his body.

Lee testified that she imposed extreme physical discipline on Walker and

his siblings. She explained that she would “whip” them with a belt, an

extension cord, a broomstick, a mop handle, or “whatever [she] could pick up.”

Gobin echoed her mother’s testimony regarding the abusive physical discipline,

testifying that “nothing was off limits” and that Lee would use “whatever was

35 in arm’s reach,” including shoes, a telephone receiver, an extension cord, and

a tennis racquet. According to Gobin, the discipline left welts on her and her

siblings. Gobin testified that, although she and her siblings were all physically

disciplined, Walker “definitely got the worst of it.” Gobin recalled an instance

in which Lee locked herself and Walker in a room. Gobin could still see into the

room, and she observed that Lee had Walker “on the sofa with [a] belt across his

neck and was choking him.” Gobin testified that she heard Lee tell Walker: “I

brought you in this world and I’ll take you out.” Gobin testified that she and her

brother “were just screaming at the door because [they] thought [Lee] was going

to kill him” and that, as a result of that incident, Walker “had a gash, a chunk of

flesh missing from his back.”

Finally, Lee testified that, several years before Walker’s father was

murdered, she met and married Theophile Rhea. According to Lee, Rhea was

verbally abusive toward Walker and his siblings. Lee testified that, in response

to his comments about her children, she assaulted Rhea with a lamp and was

arrested. Gobin echoed her mother’s testimony about Rhea and characterized

him as “a jerk” who would instigate fights. Gobin testified that she was

36 physically abused by Rhea, and she described a number of physical altercations

between Walker and Rhea.

The habeas testimony regarding abusive corporal punishment is consistent

with Dr. Miller’s finding that Walker had suffered “harsh physical discipline,”

and the habeas testimony on this topic demonstrates what evidence could have

been discovered and presented at trial in support of Dr. Miller’s findings. Lee’s

testimony was largely corroborated by Gobin, whom the Warden chose not to

cross-examine, and her testimony shows that, even though the violence between

Lee and Greg Walker may have ended when Walker was eight, Walker

continued to be exposed to abuse and violence in his home.5 Further, Lee and

Gobin’s testimony again shows that Walker was treated differently than his

siblings and thus helps explain why Walker’s childhood and life experiences

may have differed from that of his siblings. In contrast, at trial Dr. Miller made

only a fleeting reference to Walker’s exposure to “harsh behavior” by those in

his immediate family. Although Dr. Miller explained at trial that it made “no

5 We note that, while the psychiatric reports from both Dr. Miller and the State’s psychiatrist reflect that Walker reported to both men that he was never “physically abused,” the Warden never explored the contents of the reports, the context of Walker’s statements to the medical professionals, and whether Walker’s statements were inconsistent with the recollections of Lee and Gobin.

37 difference” whether Walker was exposed to violence against others or was

himself abused, Dr. Miller failed to explain or give detail concerning this

conclusion. Thus, while the jury may have understood from Dr. Miller that

Walker was exposed to domestic violence and was perhaps abused, the jury

received no testimony detailing the domestic violence or physical abuse like the

testimony that was presented in the habeas court.

D. Collective Prejudice

“In weighing prejudice, we consider the collective prejudice from all of

trial counsel’s deficiencies.” Perkins, 288 Ga. at 812 (II) (citing Schofield v.

Holsey, 281 Ga. 809, 811-812 (II), n. 1 (642 SE2d 56) (2007)). The mitigation

presentation at trial in this case was inaccurate, impersonal, included few details

about Walker’s life, presented competing conclusions about Walker, and

resulted in testimony that was off-putting to the jury. As a result of trial

counsel’s inadequate investigation and presentation, the State was able to argue

persuasively to the jury that Walker’s “childhood wasn’t that bad,” and, to

bolster its argument, the State compared Walker to his siblings, who the jury had

learned were “doing quite well.” However, had trial counsel acted on Dr.

Miller’s recommendations, trial counsel would have discovered substantial

38 evidence of Walker’s exposure to pervasive violence in the forms of domestic

violence, physical abuse, and abusive corporal punishment, which came from

nearly every adult in Walker’s life who acted in a parental role. This evidence

could have been elicited from a number of sources, including Walker’s mother,

sister, aunts, and family friends, and these individuals could have explained how

and why Walker differed from his siblings. The habeas presentation also

demonstrated how a more complete mitigation investigation could have allowed

trial counsel to present a consistent and detailed narrative that provided insight

into Walker’s life and decisions. Considering the combined effect of the

deficiencies discussed above, we conclude that there is a reasonable probability

that the absence of those deficiencies would have changed the outcome of the

sentencing phase of Walker’s trial.

Judgment affirmed. All the Justices concur.

Decided June 1, 2015.

Habeas corpus. Butts Superior Court. Before Judge Lane from Atlanta

Circuit.

39 Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Sabrina D. Graham, Richard Tangum, Assistant Attorneys

General, for appellant.

Brian Kammer, Kirsten A. Salchow, for appellee.