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Norman Darnell BAXTER

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: July 6, 1980
Date of birth: 1952
Victim profile: Kathryn June ''June Bug'' Moore, 22
Method of murder: Strangulation
Location: Henry County, Georgia, USA
Status: Sentenced to death in November 1983
 
 
 
 
 
 

Norman Darnell Baxter, 45, was sentenced to death in Henry County in November 1983 for the murder of Kathryn June ''June Bug'' Moore, 22. Her nude body bound feet, wrists and neck was found a week after she was reported missing in July 1980.

Mr. Baxter, who spent time in state mental hospitals, had prior criminal convictions.
 

 
 

BAXTER v. THE STATE.

41747.

(254 Ga. 538)
(331 SE2d 561)
(1985)

SMITH, Justice.

Murder. Henry Superior Court. Before Judge Whitmire.

Norman Darnell Baxter was convicted in Henry County for the murder of Katherine June Moore. He was sentenced to death. This case is here on direct appeal for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.) and for sentence review required by OCGA 17-10-35. We affirm.

sive Approach to Child Hearsay Statements in Sex Abuse Cases" by Judy Yun, 83 Colum. L. Rev. 1745 (1983). See also Bertrang v. State, 50 Wis.2d 702 (184 NW2d 867) (1971).

Around 11:00 p.m. on Saturday, July 5, 1980, June Moore left her parent's house in McDonough to return to her room at the Safari Inn in Henry County. Her family became concerned when she did not appear at the Safari Inn pool the next day to meet them as planned. When they could not locate her on July 7, they filed a missing persons report with the police.

On July 13, tourists found her nude, partially decomposed body in a wooded area to the west of the Safari Inn. Her hands and feet were bound, and a ligature was tied around her throat. She had been strangled.

Hunters found her car deep in the woods near the Safari Inn on October 14, 1980. The car had been partially stripped. Ms. Moore's parents determined that her diamond ring, her .22 caliber pistol, her hot curler case, and a red dress were missing from her car and her room.

Appellant and his ex-wife, Kathy Walker, spent the Fourth of July weekend of 1980 at the Safari Inn. She testified that they returned to their room from an evening out sometime between midnight and 3:00 a.m. on Sunday, July 6. She recalled that appellant left the room shortly after their return, stating that he saw a "money making thing" in the parking lot.

According to her further testimony, appellant returned to the room just after dawn. He smelled terrible and was extremely dirty and sweaty. He brought with him a red dress, a solitaire diamond ring, a hot curler case, a scarf, a small pistol, and some bullets for the pistol. He claimed that he had stolen the objects from the trunk of a car in the parking lot.

She and appellant immediately left the Safari Inn and spent the next few days at motels along I-75 south of Atlanta. Appellant's abusive behavior finally drove her to flee as he paid the bill at an Omelette Shoppe. On her way to refuge at her grandmother's house in Newton County, she threw the pistol, the scarf, and the dress in a dumpster near Porterdale. Appellant, shortly thereafter, sold a ring to the Money Tree Pawn Shop.

In late July or August of 1980, appellant took two of his acquaintances and one of his brothers to see a Ford Futura that matched the description of the victim's car. They testified that appellant had hidden the car deep in the woods near the Safari Inn. At the transcript of evidence was filed on November 14, 1983. The motion for new trial was amended August 10, 1984 and was heard and overruled on September 21, 1984. The notice of appeal was filed October 22, 1984. The record was docketed in this Court on November 20, 1984, and the case was argued on March 11, 1985.

trial, they described with particularity certain items that police had found in the car.

Two of appellant's fellow inmates in the Chatham County Jail testified that appellant had told them that he had choked a woman to death in Atlanta or "North Georgia." A fellow inmate in the Henry County Jail testified that appellant claimed to have strangled a girl at the Safari Inn during a drug deal. According to this inmate, appellant reported that he sold the victim's drugs and bought his wife a white Cadillac with the proceeds.

1. In his first, second, and thirty-first enumerations of error, appellant raises the general grounds. We find the evidence sufficient to support the jury's verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his third, fourth, and fifth enumerations, appellant charges that the trial court erred in refusing to grant him funds to hire investigators and expert witnesses. "[T]he general rule is that the grant or denial of a motion for assistance of expert witnesses and other investigative services lies within the sound discretion of the trial court." Castell v. State, 250 Ga. 776, 783 (301 SE2d 234) (1983).

(a) The trial court appointed two attorneys to represent appellant in this case in January 1983. The case came to trial in September, 1983. "Appellant had the assistance of two attorneys for [more than] five months prior to his trial. The court did not abuse its discretion by failing to provide additional funds for an investigator." Wilson v. State, 250 Ga. 630, 634 (300 SE2d 640) (1983). We find no error here.

(b) The trial court denied appellant's request for funds to hire demographic experts and psychologists to assist him in his challenge to the grand jury selection and jury qualification, and medical experts to assist him in analyzing the physical evidence. While the appropriation of such funds may be authorized under OCGA 17-12-5, in light of the testimony actually produced as to the grand jury and jury qualification questions, and the nature of the expert testimony produced by the state regarding the time of the victim's death, we find no abuse of discretion in the denial of appellant's motion for funds to hire experts. Patterson v. State, 239 Ga. 409, 412 (238 SE2d 2) (1977).

3. In his sixth, eleventh, eighteenth, twenty-third, and thirty-fifth enumerations of error, appellant claims that the trial court and the state refused to give him exculpatory or favorable information upon request in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

(a) Appellant initially claims that the trial court erred in refusing to force the state to provide him with updated rap sheets for its witnesses. At a hearing on this motion, the district attorney stated, "That is all the rap sheets that I have in my file . . . However, I made the statement if Mr. McGarity will contact me on individual cases, I will not look them up for him because I do not have time, but I will make the GCIC computer available to him. I will make arrangements with the police department." We find no error. Keller v. State, 253 Ga. 512, 513 (322 SE2d 243) (1984).

(b) Appellant next contends that the trial court's refusal to provide him with summaries of Kathy Walker's pre-trial statements violated Brady, supra, as they differed substantially from her testimony at trial. Appellant asserts specifically that before trial she made no mention of appellant's referral to a "money making thing" in the parking lot of the Safari Inn on the night of the murder. Appellant claims that this new statement provided the jury with grounds for finding an aggravating circumstance, and was particularly harmful in light of Walker's refusal to talk with his attorneys.

In her pre-trial statements, Kathy Walker stated that appellant had simply told her that he was leaving the room for awhile. The testimony regarding appellant's referral to a "money making thing" appears to be an addition to her pre-trial statements. This addition does not, however, create an inconsistency in her testimony. Throughout her involvement with the investigation, Walker maintained that appellant claimed to have stolen the goods in question from the trunk of a car. As the trial court found, this is consistent with the testimony as to the "money making thing." We find no inconsistency and no error. Roberts v. State, 243 Ga. 604, 605 (255 SE2d 689) (1979).

4. The state refused to respond to appellant's request for Walker's address. The district attorney advised her that appellant's attorneys wished to speak with her, but that she did not have to speak with them if she did not wish to do so. In his seventh and twelfth enumerations, appellant claims that the state, in effect, discouraged Walker from talking with appellant's attorneys, thereby severely hampering appellant's investigation of the case.

While the state, in most instances, should provide a defendant with the telephone numbers and addresses of its witnesses, this was not required. Roberts, supra at 606. Here, there was ample evidence of appellant's violent behavior towards the witness to justify the state's decision to withhold the information from appellant. In addition, Walker was not required to speak with appellant's attorneys if she did not so desire. Dover v. State, 250 Ga. 209 (296 SE2d 710) (1982). The district attorney merely informed her of that right. We find no error.

5. Appellant, in enumerations eight and nine, asserts that the trial court erred in refusing to provide him with a daily transcript of the day's testimony, and in refusing to allow him to submit a jury questionnaire to prospective jurors prior to voir dire.

(a) We find no abuse of discretion in the trial court's refusal to provide appellant with a daily transcript. Nunnally v. State, 235 Ga. 693, 699 (221 SE2d 547) (1975).

(b) The control of voir dire lies within the discretion of the trial court. Waters v. State, 248 Ga. 355, 363 (283 SE2d 238) (1981). We find no abuse of discretion in the trial court's refusal to allow the submission of the jury questionnaire prior to trial.

6. Appellant claims, in his tenth enumeration, that the trial court erred in denying his motion to suppress.

On March 25, 1983, a detective for the Henry County Police and a Henry County Assistant District Attorney interviewed appellant at the Chatham County Jail, where he was being held on charges unrelated to the Moore murder. Appellant had requested the interview with the hope that his help in the Moore case would cause the Chatham County authorities to be lenient with him. At the interview, he described Moore's car as it had been found, and he claimed to know more about the crime. Appellant's Savannah attorney was aware of the interview and had planned to attend, but he did not appear at the interview.

In early October, the assistant district attorney requested a follow-up interview with appellant. He interviewed appellant in the presence of his Savannah attorney on October 7, 1983. At the interview, appellant named an acquaintance as the murderer of Ms. Moore, and he provided detailed information about the crime. Appellant asserts that the trial court should have suppressed, as fruit of the poisonous tree, all evidence that the state acquired as a result of these two interviews, since no one read appellant his Miranda rights.

Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), simply does not apply to a situation such as the first interview. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra at 444. Appellant initiated the first interview himself.

Appellant volunteered information to the Henry County authorities in an uninduced attempt to gain favorable treatment from the Chatham County authorities. "There is no requirement that police stop . . . a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda, supra at 478.

The second interview presents a different situation as appellant's counsel attended the session, and as the state initiated the interview. The Miranda court stated, "The presence of counsel . . . would [have been, here,] the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination]." Miranda, supra at 466. We likewise hold, assuming even that the second interview amounted to a custodial interrogation, that the presence of appellant's attorney provided an "adequate protective device" in this case. See United States v. Jackson, 390 F2d 317 (2nd Cir.), cert. denied, 392 U. S. 935 (1968); Dempsey v. State, 225 Ga. 208 (166 SE2d 884) (1969).

As the state did not violate appellant's right against self-incrimination in either interview, the trial court correctly denied appellant's motion to suppress.

7. Appellant, in his thirteenth enumeration, charges that the court erred in refusing to allow his counsel to ask six specific questions during voir dire.

Appellant's attorney sought to ask: a) "Do you have an understanding what the term presumption of innocence means to you?" and; b) "What does the term reasonable doubt mean to you?" "Both questions were of a technical legal nature as they were subjects of the instruction by the court at the conclusion of the trial. They therefore were not a proper area for voir dire examination." Wallace v. State, 248 Ga. 255, 259 (282 SE2d 325) (1981); see also Stack v. State, 234 Ga. 19, 26 (214 SE2d 514) (1975).

Appellant's counsel also desired to ask prospective jurors whether they "[felt] that Mr. Baxter, the man on trial, . . . must have done something wrong or he would not [have been there]?" Questions amounting to a prejudgment of the case are improper in a voir dire examination. Pinion v. State, 225 Ga. 36, 37 (165 SE2d 708) (1969). The trial court did not abuse its discretion in excluding this question.

Appellant's counsel sought the prospective jurors' views on abortion. This question would not show "any interest of the jurors in the case, or any leaning or bias which the jurors might have respecting the crime for which the defendant was on trial." Curtis v. State, 224 Ga. 870, 871 (165 SE2d 150) (1968). The question was thus subject to exclusion.

Appellant's attorney finally, in two questions, attempted to discern the prospective jurors' prospective responses to the possibility that appellant might not testify at trial. Under Pinion, supra, these questions were properly excluded as they sought a prejudgment of the case. We find no error in the voir dire.

8. In his fourteenth, twenty-fifth, and twenty-sixth enumerations, appellant challenges the admissibility of certain evidence admitted by the trial court.

(a) Appellant first cites the admission of four photographs of the victim as error. While appellant acknowledges that none of the photographs were taken after an autopsy had been performed, he asserts that the alteration in the body's state, caused by exposure to the elements and evident in the photographs, brings the photographs within the ambit of Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983). Photographs of the victim's body are generally admissible. Hill v. State, 254 Ga. 213 (326 SE2d 757) (1985). Brown, supra, applies to alterations caused by an autopsist, not the combined forces of the murderer and the elements. Appellant's argument is novel but unpersuasive.

(b) Appellant next asserts that the trial court erred in allowing the state to introduce the ligatures found around the victim's throat into evidence. This was not error. Ruffin v. State, 243 Ga. 95, 98 (252 SE2d 472) (1979).

(c) Appellant contends that the trial court erred in admitting into evidence photographs of the dumpster where Kathy Walker allegedly disposed of the pistol and of the landfill where the dumpster would have been emptied. As appellant has not shown any harm caused by the admission of these photographs, we find that "in all likelihood, [they] did not contribute to appellant's conviction." Mitchell v. State, 254 Ga. 353 (329 SE2d 481) (1985). We thus find error here, if committed, harmless.

9. Appellant claims, in his fifteenth enumeration, that the trial court erred in requiring production of his list of witnesses after voir dire examination. "[T]he witness list was ordered after both sides invoked the rule of sequestration. It was within the court's discretion to order production of a list of defense witnesses in order to enforce the rule of sequestration." Fugitt v. State, 254 Ga. 521, 522 (4) (330 SE2d 714) (1985). We find no error.

10. Appellant, in his sixteenth, twenty-fourth, thirty-second, and thirty-third enumerations, asserts that the trial court erred in sustaining certain objections made by the state at trial.

(a) First, appellant claims that he should have been allowed to ask the victim's father why he had requested her to stop seeing Don Bussey, her old boyfriend who initially was a suspect in the case. After appellant's counsel rephrased the question, the victim's father stated the purpose of his attempt to prevent Bussey from seeing the victim. We find no error.

(b) Appellant next contends that he should have been allowed to question Kathy Walker as to the origin of the funds with which she purchased a Cadillac. At the time appellant's counsel posed this question, the subject matter was irrelevant. The trial court did not err in sustaining the state's objection.

(c) Appellant asserts that the trial court erred in refusing to consider the testimony of Sergeant Dunlap of the Henry County Sheriff's Department at a hearing on a motion to suppress. Appellant claimed that Dunlap's testimony would impeach the testimony of one of the inmates who testified against appellant. Appellant specifically claimed that Dunlap would show that appellant and the inmate could not have spoken at the time that the inmate claimed appellant confessed. Appellant states, "If Dunlap was believed, [the inmate] McWilliams' testimony could not be truthful," thus, Dunlap's testimony should have been considered.

Appellant's motion to suppress was based upon the theory that the inmate was an agent of the state. While the specific segments of testimony cited by appellant may raise some doubts as to the inmate's credibility, the testimony as a whole was ambiguous as to the issue involved in the motion to suppress, and the trial court did not err in refusing to consider the testimony.

(d) Appellant finally contends that the trial court erred in refusing to allow a police officer to testify as to the nature of a complaint registered about the victim by Bussey's new girl friend. We agree with the state that appellant did place evidence of difficulties between the new girl friend and the victim before the jury. We find no error in the exclusion of the testimony as to the source of the difficulties.

11. Appellant asserts, in his seventeenth enumeration, that the trial court erred in refusing to strike the testimony of the victim's sister.

During her first interview with the Henry County Police, the victim's sister identified appellant when she was shown his photograph. She subsequently picked appellant's picture out of a group of photographs. She later identified appellant at trial. She then testified that she and the victim had seen appellant at the Safari Inn pool on July 4, 1980. She claimed to have seen appellant winking at the victim and flirting with her.

Appellant claims that the initial showing of the single photograph was overly suggestive and therefore tainted the courtroom identification. Here, as in Burrell v. State, 239 Ga. 792 (239 SE2d 11) (1977), the witness established a basis for her courtroom identification independent of the single photograph. We find no error.

12. Appellant, in his nineteenth and twentieth enumerations, contends that two of the inmates who testified against him were agents for the state and should not have been allowed to testify under United States v. Henry, 447 U. S. 264 (100 SC 2183, 65 LE2d 115) (1979).

In Henry, supra, the United States Supreme Court required the suppression of an incriminatory statement made by a defendant to a fellow inmate. The fellow inmate was a paid informant placed in jail with the defendant under a contingent fee arrangement. The court relied upon the facts that: 1) The informant was paid by, and was acting under the instructions of government; 2) He was "ostensibly no more than a fellow inmate of [the defendant]," and; 3) The defendant was "in custody and under indictment at the time that he was engaged in conversation with [the informant.]" Henry, supra at 270.

The facts established pursuant to appellant's motion to suppress the two statements show that neither inmate acted as a paid informant subject to the state's direction. Both inmates testified that they acted out of hope for lenient treatment at the hands of the state. Both also testified that they received no promises of help in return for any evidence that they might produce.

The trial court was entitled to find from the evidence presented that the inmates, not the state, initiated contact with appellant. An inmate who acts upon the expectation of an unpromised reward does not thereby become an agent for the state. We therefore find Henry, supra, inapplicable and the testimony admissible. See Harper v. State, 249 Ga. 519, 528 (292 SE2d 389) (1982).

13. Appellant, in his twenty-first enumeration, claims that the trial court's charge on impeachment by production of prior inconsistent statements coupled with its refusal to compel the state to produce Kathy Walker's pre-trial statements constituted error. As we have decided that Walker's trial statements are not inconsistent with her testimony at trial, we find no error.

14. Appellant, in his twenty-second enumeration, contends that the trial court erred in giving the following charge:

"I charge you that if you find that the crime in the indictment as charged has been committed and certain property was stolen, and if recently thereafter the defendant was found in possession of such stolen property or any part thereof, that would be a circumstance along with the other evidence in the case from which the jury may infer the guilt of the defendant of the theft and of the charge made on this indictment if you find that there is a connection and if you should see fit to do so, unless of course, the defendant has made an explanation of his possession, if any, consistent with his plea of not guilty."

Appellant does not contend that this charge creates an impermissible presumption such as the one found in Francis v. Franklin, 37 CLR 3019 (Decided April 29, 1985). He asserts, rather, that the trial court "went too far by stating to the jury that they could infer the guilt of the Appellant of . . . murder," from recent possession of stolen goods. We disagree.

Immediately before the challenged portion of the jury charge the trial court charged the jury that presence at the crime scene, alone, would not sustain a guilty verdict, and that suspicious circumstances would not be sufficient either. The challenged portion of the charge simply presented another possible approach to the circumstantial evidence developed in the case. Williamson v. State, 248 Ga. 47, 54 (281 SE2d 512) (1981). We find the challenged instruction balanced, as a whole, and we thus find no error.

15. Appellant, in his twenty-eighth enumeration of error, contests the propriety of the admission into evidence of a pawn ticket bearing his name.

The pawn ticket clearly constitutes a record of a transaction. The owner of the pawn shop testified that he normally kept records, such as the one in question, as a normal practice, on "every transaction, pawn or purchase." He also testified from observation of the ticket in question that it was an original ticket from his shop filled out "at the time of purchase," and sent that day to the police department. Lt. Harrison of the Clayton County Police Department testified that he was custodian of the pawn ticket in question after it was delivered from the pawn shop on the day that it was filled out.

The ticket constituted a contemporaneous record of a transaction made in the regular course of business pursuant to regular business practices, and thus was admissible as evidence of the transaction under OCGA 24-3-14.

16. Appellant, in his twenty-ninth and thirtieth enumerations, claims that the trial court twice allowed into evidence testimony as to his bad character bearing no independent relevance to the issues at trial.

Gene Couch testified that appellant took him to see the victim's car when it was hidden in the woods near the Safari Inn. Couch stated that when he asked appellant where the car had come from, appellant responded that he had stolen it in Savannah. James Green testified that appellant had been talking to a reporter immediately prior to his "jailhouse confession" to Green. He stated at trial that appellant, in talking to the reporter, "wanted to give them [the media] information on [Moore's] murder so that, you know, he could get some leverage for the case he had there at the time."

"If evidence is relevant and material to an issue in [a] case, it is not inadmissible because it incidentally puts the defendant's character in issue. [Cits.]" Davis v. State, 249 Ga. 309, 310 (290 SE2d 273) (1982). Green's statement placed appellant's character in issue as his testimony showed that appellant was in jail on a charge that was unrelated to the Moore case. We find no error, however, because the testimony was independently relevant as it explained the circumstances leading to the "jailhouse confession."

Couch's testimony as to appellant's alleged confession to stealing the victim's car from Savannah placed appellant's character in evidence. The confession, however, was clearly relevant to the issue of whether appellant stole the victim's car. The fact that he claimed to have stolen the victim's car from Savannah does not render this testimony inadmissible. Davis, supra.

17. Appellant. in his thirty-fourth enumeration, contends that the trial court erred in refusing to give one of his requested charges. As the trial court's charge presented the substance of the requested charge to the jury, and in fact almost mirrored appellant's requested charge, we find no error. Boyd v. State, 253 Ga. 515, 516 (322 SE2d 256) (1984).

18. In his twenty-seventh enumeration, appellant claims that the trial court erred in refusing to force the state to grant him access to notes used by a witness for the state to refresh his memory. We hold that a defendant in a criminal case has the right, upon request, to examine a document used by a witness to refresh his recollection. See Hardin v. State, 252 Ga. 99 (311 SE2d 462) (1984); see also Williams v. State, 250 Ga. 664 (300 SE2d 685) (1983), Weltner, J., concurring specially, and Hill, C. J., dissenting. We overrule any cases holding to the contrary. We find, however, that "in all likelihood, [the denial of access to the notes] did not contribute to appellant's conviction." Mitchell, supra at 355. We thus find the denial to be harmless error. Sentence Review

19. Appellant contests two aspects of the trial court's charge given during the sentencing phase.

(a) Appellant, in his thirty-eighth enumeration, asserts that the court's charge on mitigation was insufficient. "[T]he jury [was] allowed and instructed. . . that it [had] the discretion, notwithstanding proof of aggravating circumstances, to sentence the defendant to life in prison for any reason satisfactory to the jury or without any reason." Smith v. Francis, 253 Ga. 782, 786 (325 SE2d 362) (1985). We find the trial court's instructions as to mitigating circumstances sufficient.

This instruction clearly informed the jury that a finding of strangulation alone would authorize a finding of aggravation under (b) (7). A finding of strangulation alone does not, as a matter of law, establish torture of the victim or depravity of mind on the part of the defendant. Cf. Phillips v. State, 250 Ga. 336, 339-342 (297 SE2d 217) (1982). Although the totality of the evidence in this case could authorize a finding of aggravation under (b) (7), as we hold in Division 20, infra, we find the challenged instruction to be unclear and potentially misleading. We will thus disregard the jury's finding of aggravation under (b) (7).

20. The jury found two aggravating circumstances: "(1) The defendant committed the offense of murder, for the purpose of receiving things of monetary value [OCGA 17-10-30 (b) (4)]; (2) The offense of murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture to the victim and depravity of mind on the part of the defendant [OCGA 17-10-30 (b) (7)]." Appellant charges, in his thirty-fifth enumeration, that the evidence developed in the case does not support either of the jury's findings of aggravation.

(a) The state produced evidence that appellant sold the victim's ring, stripped her car and attempted to sell various parts of the car, and took her pistol after murdering her. Kathy Walker, in addition, testified that appellant left their motel room on the night of the murder in search of a "money making thing." This evidence is sufficient to support a finding of the (b) (4) aggravating circumstance. See Pulliam v. State, 236 Ga. 460, 466-467 (224 SE2d 8) (1976); Jarrell v. State, 234 Ga. 410, 424 (216 SE2d 258) (1975).

(b) The state produced evidence that appellant strangled the victim with a ligature, removed her clothes, bound her hands and feet, and dumped her body in a secluded area. The state also provided evidence from which the jury could infer that the victim's hands and feet were bound and her clothes removed before she was murdered. The jury could conclude from this evidence that: 1) The murder was outrageously and wantonly vile, horrible and inhuman, and that; 2) The murder involved torture to the victim or depravity of mind of the defendant. See Hance v. State, 245 Ga. 856, 860 (268 SE2d 339) (1980). We find the evidence sufficient to support the jury's finding of the (b) (7) aggravating circumstance.

(c) In addition, we find that the death sentence imposed here is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA 17-10-35 (c). See Appendix.

(d) We find that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA 17-10-35 (c) (2). As the evidence supported a finding of (b) (4) and (b) (7) aggravating circumstances, and in light of our review of the record, we conclude that the unclear charge on (b) (7) aggravating circumstances did not lead to the imposition of the death sentence under the influence of the above mentioned factors.

21. We have reviewed the prosecutor's closing argument at the sentencing phase of the trial, and we find no error. Walker v. State, 254 Ga. 149, 158 (327 SE2d 475) (1985).

Judgment affirmed. All the Justices concur.

APPENDIX.

E. Byron Smith, District Attorney, Michael J. Bowers, Attorney General, J. Michael Davis, for appellee.

Harrison & McGarity, Arch W. McGarity, for appellant.

DECIDED JULY 3, 1985.

 
 

United States Court of Appeals,
Eleventh Circuit.

No. 92-9200.

Norman Darnell BAXTER, Petitioner-Appellant,
v.
Albert G. THOMAS, Warden, Georgia Diagnostic and Classification Center,
Respondent-Appellee.

Feb. 9, 1995.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:92-CV-261-RCF), Richard C. Freeman, Judge.

Before KRAVITCH, BIRCH and DUBINA, Circuit Judges.

KRAVITCH, Circuit Judge:

Petitioner, Norman Darnell Baxter, was convicted of the murder of Katherine June Moore and sentenced to death. He appeals from the district court's order denying his motion for a writ of habeas corpus. For the reasons set forth below, we AFFIRM the district court's denial of relief as to Baxter's conviction. Because, however, we hold that Baxter's counsel was ineffective at the sentencing phase of his trial, we VACATE Baxter's sentence and REMAND for resentencing.

I.

On July 5, 1980, Katherine June Moore attended a cookout at her father and stepmother's home. She left at approximately 11:00 p.m., telling her family that she was going to see Don Bussey, her ex-boyfriend. At the time, Moore was living with her friend Jane Bozeman at the Safari Inn Motel, located outside of Atlanta. Moore and her parents arranged to meet the next day at the Safari Inn in order to use the swimming pool. When Moore failed to meet them as planned, her parents became concerned. They reported her missing on July 7, 1980.

On July 13, 1980, Moore's body was found in a wooded area west of the Safari Inn. She had been strangled; her hands and feet bound. Moore's partially stripped car was found on October 14, 1980.

At the time of Moore's disappearance, Baxter was staying at the Safari Inn with his girlfriend, Kathy Walker Anderson ("Anderson"). After investigating several suspects, including Bussey, the police arrested Baxter for Moore's murder. He was brought to trial in 1983.

The evidence presented by the state at trial was circumstantial, as there was no direct or physical evidence linking Baxter to Moore's murder. Marvin Moore and Opal Moore, the victim's father and stepmother, testified that Moore had left their house around 11:00 p.m. on July 5, 1980, in order to meet Bussey. They also testified that she had the following items with her that night: an "engagement-type ring," a .22 caliber pistol, a red dress, and a hair curlers' case. The police did not find these items in Moore's car or on her person.

Anderson testified that she and Baxter returned to their room at the Safari Inn between midnight and 3:00 a.m. and that as she went to the shower, Baxter said to her that he "saw a money making thing in the parking lot." After taking her car keys, Baxter left the motel room.

According to Anderson, after Baxter left the room, she unsuccessfully looked for him several times in the parking lot. She was concerned about her car and noticed that it was still in the parking lot. Anderson testified that when Baxter returned at dawn, he was "real dirty. He was sandy. And he smelled very bad." He also had a .22 caliber gun, bullets, a scarf, a diamond ring, a red shirt, and an electric curlers' container in his possession-items that he did not have when he left the room.

Anderson testified that she and Baxter left the motel shortly after Baxter's return. Baxter retained possession of the ring and put the rest of the items in the console of Anderson's car. Following a fight a few days later, Anderson left Baxter at a restaurant. She then threw the items that Baxter had placed in her car into a dumpster. These items were never recovered. The state introduced a pawn ticket dated August 10, 1980, indicating that Baxter had pawned a "white gold ring."

Three witnesses testified that Baxter had taken them to a car located near the Safari Inn in order to remove parts and that the car matched a police photograph of Moore's car.

Finally, the testimony showed that while Baxter was incarcerated later on unrelated charges, he told fellow inmates of his involvement with Moore's murder: James Green testified that Baxter told him that he had strangled a girl at a motel outside Atlanta; Eugene Gadson testified that Baxter told him that he had choked a girl in Northern Georgia; and Timothy McWilliams testified that Baxter told him that he had choked a girl in order to steal her mayonnaise jar full of cocaine and that he bought Anderson a white Cadillac with the money.

The thrust of Baxter's defense was that someone other than Baxter killed Moore. The defense focused on Phillip Kennedy, the owner of a local gasoline station, and Bussey, Moore's ex-boyfriend. Jane Bozeman, the friend with whom Moore had been staying at the time of her murder, testified that Kennedy had told her shortly after Moore's disappearance that he had murdered someone. A detective for Henry County testified that a warrant had been issued for Kennedy in connection with Moore's murder, but that following a commitment hearing, the case against Kennedy was dismissed.

In order to implicate Bussey, the defense pointed out that Moore had told her parents that she was going to meet Bussey and that witnesses placed Bussey with Moore at approximately 11:00 p.m. on July 5, 1980, thus making him the last person to see Moore alive. Additionally, Bussey was involved with another woman-Julie Cream. The defense introduced testimony concerning physical altercations between Moore and Cream, as well as heated fights between Bussey and Moore.

The jury found Baxter guilty of murder. At the sentencing phase of the trial, the judge instructed the jury on two aggravating circumstances: (1) that the murder "was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim" and (2) that the murder was committed "for the purpose of receiving money or any other thing of monetary value." The state presented no new evidence at sentencing. The defense called only one witness, a preacher who testified that based upon conversations with Baxter and his review of a report detailing Baxter's life, Baxter had a difficult upbringing, was physically abused, and was passed along "[f]rom one home, orphanage or school of some sort." The preacher also testified that he was opposed to the death penalty. The jury found both aggravating circumstances and sentenced Baxter to death.

On direct appeal, Baxter's conviction and sentence were affirmed. Baxter v. State, 254 Ga. 538, 331 S.E.2d 561 (1985). The Supreme Court denied Baxter's petition for certiorari. Baxter v. Georgia, 474 U.S. 935 , 106 S.Ct. 269, 88 L.Ed.2d 275 (1985). Baxter then filed a writ of habeas corpus in Georgia court, which writ was denied following an evidentiary hearing. The Georgia Supreme Court affirmed the denial of the writ. Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990). Baxter filed a writ of habeas corpus in the United States District Court for the Northern District of Georgia, pursuant to 28 U.S.C. 2254 (1988), challenging his conviction and death sentence. The district court denied relief without holding an evidentiary hearing and this appeal follows.

II.

Baxter enumerates various errors at his trial which he contends merit reversal of his conviction. Because we find these contentions to be without merit, we AFFIRM Baxter's conviction.

A.

Baxter first alleges that the prosecutor withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He asserts that the prosecutor withheld the following: (1) statements that Anderson previously had given to police that could have been used to impeach Anderson; (2) statements given by Opal Moore, the victim's stepmother, and Kathryn Moore, the victim's natural mother, indicating that Bussey was violent; (3) evidence that McWilliams had testified in order to garner early release from prison; and (4) a 1972 Bulloch County order from a prior criminal case in which Baxter was found temporarily incompetent to stand trial.

To establish a Brady violation, Baxter must prove:

(1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir.1992) (citations omitted). Baxter cannot meet this burden for any of the material which he alleges to have been withheld in violation of Brady.

Anderson gave four interviews to the police. During the first interview, Anderson stated that she did not remember the events of the July 4, 1980 weekend; she did recall, however, that she had gone to the Safari Inn in order to hide from Baxter, but that he found her at the motel. In subsequent interviews, Anderson was able to recall more and more details of that weekend. Baxter contends that the differences among these statements would have enabled defense counsel to impeach Anderson's credibility. We disagree. After reviewing the four statements which Anderson gave to the police prior to her testimony, we conclude that even assuming that Baxter can prove the first three elements necessary to show a Brady violation, Baxter cannot show that there is a reasonable probability that had these statements been disclosed to the defense, the outcome of his trial would have been different. Defense counsel vigorously cross-examined Anderson, commenting on her ability to remember certain things and not others.

Additionally, the following exchange took place during Anderson's cross-examination:

Q You can't remember a lot of things that happened three years ago, can you?

A Not everything, no.

Q Just certain things?

A Yes, sir.

Q Have you ever heard of the expression, "selective memory?" Further, defense counsel cross-examined Detective Bobby Hill, who conducted the first two interviews with Anderson and was present for the third interview. Hill admitted that Anderson had not told him about the bullets in the first two interviews and that Anderson had never mentioned a ring. Because defense counsel were aware of the prior statements and brought out differences in Anderson's interviews, the written transcripts only would have provided cumulative impeachment evidence. See Routly v. Singletary, 33 F.3d 1279, 1285-86 (11th Cir.1994) (no Brady violation when defense counsel was aware of witness's grant of immunity and cross-examined her regarding that immunity; evidence would have provided, "at most, cumulative impeachment of [witness's] testimony.").

There was no Brady violation with respect to Opal Moore's statement, because the statement was not exculpatory. Opal specifically stated, "I know of no physical abuse. I never saw any bruises on June [the victim]. June has on occasion pulled her pistol and pointed it at Don [Bussey], and threatened him."

With respect to Kathryn Moore's statement that Bussey was violent, defense counsel were aware of the tumultuous relationship between Moore and Bussey. Moore's father and Bozeman both testified about Bussey's heated relationship with Moore. Further, Bussey testified as a witness for the defense and therefore was available to answer any questions concerning his relationship with Moore. Baxter cannot show a reasonable probability that Kathryn Moore's statement would have changed the outcome of the proceeding, and there is therefore no Brady violation.

The Bulloch County order was evidence that Baxter himself possessed or could have obtained with reasonable diligence, as the prosecution made its computer available to the defense, and Baxter himself was aware of the order. Thus, there is no Brady violation. See United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.) (" Brady rule does not apply if the evidence in question is available to the defendant from other sources"), cert. denied, 479 U.S. 852 , 107 S.Ct. 184, 93 L.Ed.2d 118 (1986).

Finally, with respect to evidence that Baxter contends shows that McWilliams made a deal in exchange for his testimony, McWilliams, as well as the Assistant District Attorney and a law enforcement agent from Henry County, all testified, under oath, that no deal had been made. Apart from defense counsel's affidavit, admitting that McWilliams was unwilling to recant his testimony, there is nothing to suggest that a deal had been made and, consequently, there is no Brady violation.

B.

Baxter also asserts that the prosecutor commented upon his right to remain silent in violation of the Fifth Amendment.

For the reasons set forth in the next section, we reject Baxter's argument that the prosecutor unconstitutionally shifted the burden of proof. During closing argument, the prosecutor stated: "Now ladies and gentlemen of the jury, this case would have been a lot more complete if we had one more witness and that witness would have been sitting right here. But, for the defendant, Norman Darnell Baxter, this case is in the posture that it is. And I don't say that as if there's not enough evidence to convict this defendant ..."

A prosecutor's statement violates a defendant's Fifth Amendment right to remain silent if the defendant can establish that the statement "was manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Garcia, 13 F.3d 1464, 1474 (11th Cir.) (quoting United States v. Swindall, 971 F.2d 1531, 1551 (11th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 683, 126 L.Ed.2d 650 (1994)), cert. denied, --- U.S. ----, 114 S.Ct. 2723, 129 L.Ed.2d 847 (1994).

To determine whether the prosecutor intended to comment on Baxter's failure to testify, we "must examine the comment in context." Kennedy v. Dugger, 933 F.2d 905, 915 (11th Cir.1991) (quotation omitted), cert. denied, 502 U.S. 1066 , 112 S.Ct. 957, 117 L.Ed.2d 123 (1992). After reviewing the prosecutor's closing argument in context, we conclude that the prosecutor did not intend to comment on Baxter's failure to testify, but was merely describing the circumstantial nature of the case. See Swindall, 971 F.2d at 1551-52 (no manifest intent to comment on defendant's silence when there is an equally plausible explanation for remark).

Further, given that the jury was likely to conclude that the witness who could not testify was Katherine June Moore, not Baxter, the jury would not necessarily have interpreted the prosecutor's remark as a comment on Baxter's failure to testify. Id. at 1552 ("The question is not whether the jury possibly or even probably would view the remark [as a comment on defendant's silence] but whether the jury necessarily would have done so") (emphasis in original) (quoting United States v. Carter, 760 F.2d 1568, 1578 (11th Cir.1985)). We thus conclude that the prosecutor's closing argument did not violate Baxter's Fifth Amendment right to remain silent.

Now, let's move on to some more witnesses. Well, let's move on to a witness that didn't say anything. There was one of those. Y'all don't look at me like I don't know what I'm talking about. State's Exhibit # 29 is a pawn ticket. It unequivocally has Norman Baxter's name on it.

At this juncture, the jury likely would conclude that the prosecutor was referring to the pawn ticket as a "witness." He neither intended the comment as a reference to Baxter's failure to testify nor would the jury necessarily have interpreted it as such.

C.

Baxter argues that the judge's instructions to the jury denied him a fair trial because the instructions shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

The reasonable doubt instruction, when read in its entirety, is constitutionally sound. See Johnson v. Kemp, 759 F.2d 1503, 1508 (11th Cir.1985) (instruction using "reasonable doubt" throughout, but also stating that jury should acquit if their minds were "wavering, unsettled or unsatisfied" was not constitutionally infirm).

The instruction that witnesses are presumed to tell the truth is also constitutionally sound because where, as here, the judge tells the jury how that presumption may be overcome, instructs the jury that a defendant is presumed innocent, and reasonable doubt, there is no Due Process violation. See Cupp v. Naughten, 414 U.S. 141, 149-50 , 94 S.Ct. 396, 401-02, 38 L.Ed.2d 368 (1973). The judge instructed the jury:

If you find that the crime in this indictment as charged has been committed and certain personal property was stolen and if recently thereafter the defendant was found in possession of such stolen property or any part thereof, that would be a circumstance along with the other evidence in the case from which the jury may infer the guilt of the defendant of the theft and of the charge made in this indictment if you find that there is a connection and if you should see fit to do do [sic], unless of course, the defendant has made an explanation of his possession, if any, consistent with his plea of not guilty. This is a fact for you, the jury, to determine.

The threshold inquiry in evaluating whether a jury instruction impermissibly shifts the burden of proof is whether the instruction is a permissive inference or a mandatory presumption. Francis v. Franklin, 471 U.S. 307, 313-14 , 105 S.Ct. 1965, 1970-71, 85 L.Ed.2d 344 (1985). "A permissive presumption merely allows an inference to be drawn and is constitutional so long as the inference would not be irrational." Yates v. Evatt, 500 U.S. 391, 402 n. 7, 111 S.Ct. 1884, 1892 n. 7, 114 L.Ed.2d 432 (1991).

The judge instructed the jury that it "may infer" that if Baxter possessed Moore's property, he also killed her. This is a permissive inference. See United States v. Myers, 972 F.2d 1566, 1573 (11th Cir.1992) (judge's instruction using words "may infer" is permissive inference), cert. denied, --- U.S. ----, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). Because we cannot say that this permissive inference is irrational, we hold that the judge did not impermissibly shift the burden of proof.

D.

Baxter also contends that he was denied a fair trial because of certain evidentiary rulings. Because a federal habeas corpus case is not a vehicle to correct evidentiary rulings, we "inquire only to determine whether the error was of such magnitude as to deny fundamental fairness to the criminal trial." Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir.) (quotation omitted), cert. denied, --- U.S. ----, 115 S.Ct. 673, --- L.Ed.2d ---- (1994). "[H]abeas relief will only be granted if the state trial error was material as regards a critical, highly significant factor." Id.

Neither the exclusion nor the admission of the evidence of which Baxter complains rendered his trial fundamentally unfair. Baxter complains that the judge erred in allowing a photograph of Moore's body into evidence. "The introduction of graphic photographic evidence rarely renders a proceeding fundamentally unfair." Jacobs v. Singletary, 952 F.2d 1282, 1296 (11th Cir.1992) (collecting cases). The photograph of Moore's body was relevant evidence and the judge gave a cautioning instruction.

Certain photos were admitted for the purpose of showing the injuries which were inflicted upon the victim as part of the offense charged and to show the manner in which the victim was bound. And anything in the photographs that appear not to illustrate any issue in this case should not inflame you or cause prejudice against the defendant. Thus, there was no error.

Further, none of the other evidence that was admitted or excluded is "material as regards to a critical, highly significant factor." Alderman, 22 F.3d at 1555. Baxter asserts that the court erred in excluding Anderson's testimony concerning her purchase of a car, as it would tend to impeach McWilliams's testimony that Baxter told him that he stole a jar of cocaine from Moore and bought Anderson a Cadillac with the proceeds. The prosecutor conceded, however, that Baxter fabricated the portion of his confession concerning the jar of cocaine, so this evidence was not material.

Baxter's contention that the court erred in excluding the prison guard's testimony concerning the days during which Baxter and McWilliams were in the yard together is meritless because such testimony would merely establish when the confession took place and not whether Baxter actually confessed.

Finally, we reject Baxter's complaint that the court erred in allowing Debbie Moore, the victim's sister-in-law, to identify Baxter as the man she had seen flirting with Katherine Moore at the motel because that identification was based upon an unduly suggestive photo line up. The identification was not material as it was undisputed that Baxter was staying at the motel at the time Moore disappeared.

We therefore hold that Baxter was not denied a fundamentally fair trial because of the state trial court's evidentiary rulings.

E.

Baxter contends that the testimony of James Green, a fellow inmate, should have been suppressed under Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). This contention is without merit. To prove a Sixth Amendment violation in a jailhouse informant case, Baxter must show that Green was a government agent and that Green "deliberately elicited incriminating statements" from Baxter. Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir.1987), cert. denied, 488 U.S. 934 , 109 S.Ct. 329, 102 L.Ed.2d 346 (1988). Green specifically testified that he was not "the agent of any law enforcement officer or agency," and that he did not question Baxter, but rather that Baxter "more or less volunteered" the information concerning Moore's murder. Baxter has therefore failed to show a Massiah violation.

Additionally, Baxter asserts that evidence derived from statements which he gave to police while in custody on an unrelated charge should have been suppressed because the statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Baxter was not read his Miranda warnings prior to giving these statements in 1983. His attorney, however, was present for the October interview. Following a hearing, the trial court denied Baxter's motion to suppress these statements.

The protections of Miranda apply to custodial interrogations, defined by the Supreme Court as "questioning initiated by law enforcement officers after a person has been taken into custody...." Illinois v. Perkins, 496 U.S. 292, 296 , 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990) (quoting Miranda, 384 U.S. at 444 , 86 S.Ct. at 1612).

A review of the transcript of the hearing on Baxter's motion to suppress reveals that the questioning in this case was not initiated by law enforcement officers. Rather, Baxter "had said that he knew something about the Katherine June Moore murder and wanted to talk to some ... officers about it." The officers, therefore, were not required to read Baxter his Miranda warnings. See United States v. Manor, 936 F.2d 1238, 1241 (11th Cir.1991) (no Miranda warnings required where "defendant himself requested the meeting with the officer").

F.

Baxter also raises several issues with respect to his competency. He alleges that the trial court erred in failing to conduct a competency hearing and in denying his motion for funds for an independent psychiatrist. He also asserts that he was incompetent to stand trial. We find these contentions to be without merit.

Under Ake v. Oklahoma, 470 U.S. 68, 83 , 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985), an indigent defendant has a right to a psychiatrist at public expense upon a showing that the defendant's mental condition is a significant issue during the trial. The "defendant must show the trial court that there exists a reasonable probability both that [the psychiatrist] would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial." Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054 , 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). We focus on what information was available to the trial judge at the time the judge denied the defendant's motion to determine if the defendant showed a "substantial basis" to justify asking for the appointment of a psychiatrist. Messer v. Kemp, 831 F.2d 946, 960 (11th Cir.1987) (en banc), cert. denied, 485 U.S. 1029 , 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988).

After reviewing the relevant portion of the transcripts, we hold that Baxter failed to make the necessary showing to secure a psychiatrist.  See Messer, 831 F.2d at 964 (no error in denying defendant assistance of psychiatrist when he "never said, much less articulated a factual basis for believing, that his sanity at the time of the offenses would be a significant factor at trial ... or that a psychiatrist would enable him to present mitigating evidence at ... sentencing"); Weeks v. Jones, 26 F.3d 1030, 1041 (11th Cir.1994) (because defendant failed to show a "substantial basis" to justify appointment of psychiatrist, counsel's failure to make a motion for such appointment was not deficient performance).

Additionally, Baxter's actions were not so bizarre that the trial judge erred in not, sua sponte, ordering a competency hearing; nor has Baxter shown that he was incompetent at the time of trial.

G.

For the reasons set forth above, we AFFIRM the district court's denial of relief as to Baxter's conviction.

Baxter's contention that the death penalty is sought and applied disproportionately on those accused of killing white females is foreclosed by McCleskey v. Kemp, 481 U.S. 279 , 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). His argument that death-qualified juries violate the Constitution is foreclosed by Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

III.

Baxter also alleges several errors concerning his sentence. We hold that there was sufficient evidence of an aggravating circumstance to allow the death penalty to be imposed. Because we hold, however, that Baxter was denied effective assistance of counsel at sentencing, we vacate his sentence and remand for resentencing.

A.

Baxter argues that there was insufficient evidence to allow the jury to conclude that the murder was committed "for the purpose of receiving ... thing[s] of monetary value." O.C.G.A. 17-10-30(b)(4). We disagree.

The jury heard evidence that Baxter told Anderson that he "saw a money making thing in the parking lot," immediately prior to his departure from their motel room. Further, Baxter returned with several items of value, including a ring and a gun. Additionally, the state introduced a pawn ticket for a ring containing Baxter's thumbprint and dated shortly after Moore's disappearance. Finally, three witnesses testified that Baxter had taken them to Moore's car in order to strip parts. Because "any rational factfinder, given the evidence as presented, could have found ... [the (b)(4) ] aggravating factor[ ] ... present," we conclude that there was sufficient evidence to allow a jury to find that Baxter committed the murder for the purpose of receiving things of monetary value. Routly v. Singletary, 33 F.3d 1279, 1297 (11th Cir.1994).

B.

Baxter asserts that his trial counsel, Arch McGarity and Steve Harrison, did not reasonably investigate his long history of mental problems and consequently did not present evidence of his psychiatric problems at sentencing. We agree and accordingly vacate Baxter's sentence and remand for resentencing.

At the state evidentiary hearing, McGarity testified that he believed that Baxter had spent much of his adolescence in the Youth Development Center ("YDC") in Milledgeville, Georgia, an institution for criminal youths. He did not request any records from YDC, believing that "that's not exactly the type [of] school records you want to put in, in my mind." McGarity also testified that, to his knowledge, there was no evidence of Baxter's "previous incarceration in a psychiatric institute."

In fact, Baxter had been committed to Central State Hospital, in Milledgeville, Georgia, a state mental institution. Baxter was first sent to Central State Hospital in June 1965 and stayed there until January 1968. He was recommitted to Central State Hospital in February 1969 and remained there until June 1969. Baxter therefore spent approximately three years of his teenage life in a psychiatric hospital.

His records from Central State Hospital similarly indicate that he functioned in the retarded range and that his education stopped after the second grade.

An ineffective assistance of counsel claim is a mixed question of law and fact subject to plenary review under the test set forth in Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Cunningham v. Zant, 928 F.2d 1006, 1016 (11th Cir.1991). In order to obtain a reversal of his death sentence on the ground of ineffective assistance of counsel, Baxter

must show both (1) that the identified acts or omissions of counsel were deficient, or outside the wide range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.

Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.) (citing Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994).

"An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994). The failure to do so "may render counsel's assistance ineffective." Bolender, 16 F.3d at 1557.

When determining whether defense counsel conducted a reasonable investigation, our inquiry is three-fold. First, "it must be determined whether a reasonable investigation should have uncovered the mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel." Blanco v. Singletary, 943 F.2d 1477, 1500 (11th Cir.1991) (emphasis in original) (quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988)), cert. denied, --- U.S. ----, 112 S.Ct. 2290, 119 L.Ed.2d 213 (1992); see also Porter, 14 F.3d at 557. If the decision was tactical, that decision is afforded a "strong presumption of correctness." Id. If, however, the decision was not tactical, we must then determine whether "there is a reasonable probability that absent the errors, the sentencer ... would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Blanco, 943 F.2d at 1503-04 (quoting Strickland, 466 U.S. at 695 , 104 S.Ct. at 2068).

We therefore begin our analysis by asking whether a reasonable investigation would have uncovered information concerning Baxter's psychiatric problems and commitment to a psychiatric institution. We hold that had defense counsel conducted a reasonable investigation, they would have unearthed this mitigating evidence.

Defense counsel did investigate Baxter's background to some degree; they did not, however, uncover information concerning Baxter's mental deficiencies. The failure to uncover this information stemmed from defense counsel's failure to request Baxter's records from Central State Hospital, his records from the Chatham County school system, or his records from the Chatham County Department of Family and Children Services. Defense counsel also did not contact a variety of persons, including Baxter's sister, neighbor, and social worker, all of whom knew that Baxter had been committed to Central State Hospital.

The failure to request the records from Central State Hospital and defense counsel's insistence that Baxter had never been in a psychiatric hospital are especially troubling because McGarity knew, prior to trial, that Milledgeville, Georgia, housed a hospital for the mentally ill. This is evident, as when McGarity requested on July 7, 1983, that a psychiatrist evaluate Baxter prior to trial because of the difficulties that counsel was having communicating with Baxter, he stated, "we would ask that [Baxter] be sent to Milledgeville and [sic] evaluated there." Earlier, in another proceeding, the prosecutor referred to Milledgeville, stating "there are plenty of psychiatrists employed by the state of Georgia at Central State or Milledgeville." Additionally, because defense counsel was aware that Baxter was behaving oddly and asked the court that Baxter be evaluated by a psychiatrist, they were on notice of potential psychiatric problems in Baxter's background.

We therefore conclude that a reasonable investigation would have uncovered the mitigating evidence. See Middleton, 849 F.2d at 494 (attorney who failed to request "readily discoverable" psychiatric records did not conduct a reasonable investigation). We must now determine whether defense counsel's decision not to pursue its investigation of Baxter's mental history was tactical.

In a wide variety of situations, the decision not to extensively investigate a defendant's background may be tactical. See Bolender, 16 F.3d at 1557 n. 11 ("under some circumstances, an attorney may make a strategic decision not to pursue a particular line of investigation or to pursue a particular inquiry only so far"); Porter, 14 F.3d at 558 (decision not to introduce evidence of defendant's background for fear of exposing defendant's criminal history to jury was reasonable tactical decision). An attorney is not ineffective because he fails to follow every evidentiary lead or chooses not to put forth mitigating evidence. See Bolender, 16 F.3d at 1557; Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.) ("attorney is not obligated to present mitigating evidence if after reasonable investigation, he or she determines that such evidence may do more harm than good"), cert. denied, 493 U.S. 1011 , 110 S.Ct. 573, 107 L.Ed.2d 568 (1989); Stevens v. Zant, 968 F.2d 1076, 1082 (11th Cir.1992) ("trial counsel's failure to present mitigating evidence is not per se ineffective assistance of counsel"), cert. denied, --- U.S. ----, 113 S.Ct. 1887, 123 L.Ed.2d 504 (1993).

An attorney's decision to limit his investigation, however, must "flow from an informed judgment." Harris, 874 F.2d at 763. "[O]ur case law rejects the notion that a "strategic' decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them." Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992); see Blanco, 943 F.2d at 1502; Harris, 874 F.2d at 763 (misunderstanding between attorneys as to who was responsible for gathering mitigating evidence caused failure to investigate; therefore, no tactical decision on part of counsel).

There was no informed decision in this case. Rather, defense counsel's failure to conduct a reasonable investigation and failure to present the psychiatric mitigating evidence stemmed largely from a misunderstanding as to where Baxter spent much of his youth. McGarity testified at the state habeas hearing that Baxter "had spent almost all of [his life] in some form of incarceration whether it be in a criminal institution or a YDC.... [He] lived a total life of crime. [We had] no information, we had no behavior on his part whatsoever that led us to believe he was anything but just a criminal." In fact, there was ample evidence that Baxter was not "just a criminal," but that he had mental problems. We therefore conclude that counsel's decisions not to pursue or present this evidence were not tactical. See Middleton, 849 F.2d at 494 (decision not to investigate defendant's psychiatric background not tactical when counsel was unaware of existence of psychiatric records).

We are mindful that "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 255, 130 L.Ed.2d 175 (1994). In this case, however, despite defense counsel's awareness that Milledgeville has a state psychiatric hospital and despite their belief that Baxter's refusal to talk with his attorneys stemmed, in part, from psychiatric problems, defense counsel failed to take any steps to uncover mental health mitigating evidence that was readily available. We cannot say, under these circumstances, that counsel's performance "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689 -90, 104 S.Ct. at 2065.

Because we conclude that counsel's performance was deficient, we must now determine whether that deficiency caused Baxter prejudice. A petitioner is prejudiced if "there is a reasonable probability that absent the errors, the sentencer ... would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Blanco, 943 F.2d at 1503-04 (quoting Strickland, 466 U.S. at 695 , 104 S.Ct. at 2068).

We hold that Baxter suffered prejudice from his attorneys' failure to conduct a reasonable investigation into his background. Psychiatric mitigating evidence "has the potential to totally change the evidentiary picture." Middleton, 849 F.2d at 495. We have held petitioners to be prejudiced in other cases where defense counsel was deficient in failing to investigate and present psychiatric mitigating evidence. See Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir.) ("prejudice is clear" where attorney failed to present evidence that defendant spent time in mental hospital), cert. denied, 488 U.S. 872 , 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); Blanco, 943 F.2d at 1503; Middleton, 849 F.2d at 495; Armstrong v. Dugger, 833 F.2d 1430, 1432-34 (11th Cir.1987) (defendant prejudiced by counsel's failure to uncover mitigating evidence showing that defendant was "mentally retarded and had organic brain damage").

While deficient performance in investigating psychiatric mitigating evidence will not always prejudice the defense, the factors suggesting prejudice in this case are strong. First, only one aggravating circumstance was present: that the crime was committed for the purpose of monetary gain. It is therefore likely that testimony of Baxter's mental retardation and psychiatric history as mitigating evidence would have caused the jury to impose a life sentence in lieu of the death penalty. Second, the only mitigating evidence presented at sentencing was Calvo's testimony, which testimony spanned but several minutes. Third, this murder was committed by strangulation-it did not involve the sexual abuse or kidnapping common to other death penalty cases.

Given that the record was virtually devoid of mitigating evidence and given the scarcity of aggravating circumstances, we conclude that had the jury been presented with evidence that Baxter had a long history of psychiatric problems, a reasonable probability exists that the jury would have recommended life imprisonment. We thus vacate Baxter's sentence and remand for resentencing.

IV.

For the reasons expressed above, we AFFIRM the district court's denial of relief as to Baxter's conviction, but VACATE his sentence and REMAND for new sentencing.

 

 

 
 
 
 
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