Petition for Writ of Certiorari — Keith Tharpe, Petitioner v. Benjamin Ford, Warden

Supreme Court briefNov 21, 2018

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IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

KEITH LEROY THARPE,

Petitioner,

HILTON HALL, WARDEN,

Georgia Diagnostic and

Classification Prison,

Respondent.

CIVIL ACTION NO.

93-V-144

HABEAS CORPUS

ORDER

Petitioner, Keith Leroy Tharpe, was convicted of malice

murder and two counts of kidnapping with bodily injury.

216-218).

(R.

After finding statutory aggravating circumstances,

(R. 221-222), Petitioner was sentenced to death.

(R.

223-224).

Petitioner's convictions and sentences were affirmed by the

Supreme Court of Georgia on March 17, 1992.

262 Ga. 110, 111 (1992).

Tharpe v. State,

The United States Supreme Court denied

Petitioner's Petition for Writ of Certiorari on October 19,

1992.

Tharpe v. Georgia, 506 U.S. 942 (1992).

On March 17, 1993, Petitioner filed the above-styled habeas

corpus petition.

A multitude of attorneys for both the

Petitioner and the Respondent have entered and left the case.

This has made it difficult for the case to gain any "momentum",

and has contributed considerably to the delay in the case's

resolution.

Evidentiary hearings were held on: May 28, 1998;

August 24, 1998; October 1-2, 1998; December 11, 1998; December

23, 1998; and July 30, 2007.

Petitioner and Respondent called

witnesses and presented evidence.

number of the trial jurors.

Depositions were taken of a

Following a thorough review of the

evidence, arguments and the post-hearing briefs submitted by

both parties, this Court hereby ORDERS as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On direct appeal, the Georgia Supreme Court summarized the

facts as follows:

The evidence presented at trial showed the following:

Tharpe's wife left him on August 28, 1990 and moved in

with her mother.

Following various threats of

violence made by the defendant to and about his wife

and her family, a peace warrant was taken out against

him, and the defendant was ordered not to have any

contact with his wife or family.

Notwithstanding this

order, Tharpe called his wife on September 24, 1990

and argued with her saying if she wanted to "play

dirty," he would show her "what dirty was."

On the morning of the 25 th , his wife and her sister-inlaw met Tharpe as they drove to work. He used his

vehicle to block theirs and force them to stop. He

got out of his vehicle, armed with a shotgun and

apparently under the influence of drugs, and ordered

them out of their vehicle. After telling the sisterin-law he was going to "f--- you up," he took her to

the rear of his vehicle, where he shot her.

He rolled

her into a ditch, reloaded, and shot her again,

killing her.

The wife could not remember if the

sister-in-law had been shot twice or three times.

However, the autopsy established that the victim had

been shot three times, once in the arm, once in the

chest, and once in the head.

Tharpe then drove away with his wife. After

unsuccessfully trying to rent a motel room, Tharpe

parked by the side of the road and raped his wife.

Afterward, he drove to Macon, where his wife was to

obtain money from her credit union.

Instead she

called the police.

Tharpe, 262 Ga. at 110-111.

CLAIMS THAT ARE NOT BEFORE THIS COURT FOR REVIEW1

A. CLAIMS THAT ARE BARRED FROM REVIEW BY THIS COURT UNDER THE

DOCTRINE OF RES JUDICATA.

The Court finds that the following claims have been raised

and litigated on direct appeal and may not be relitigated by

means of a habeas corpus proceeding.

See Elrod v. Ault, 231 Ga.

750, 204 S.E.2d 176 (1974); Gunter v. Hickman, 256 Ga. 315, 348

S.E.2d 644

837

(1986); Roulain v. Martin, 266 Ga. 353, 466 S.E.2d

(1996).

That portion of Claim III, wherein Petitioner alleges

that his right to a fair trial and due process were

violated by the State's improper and highly

prejudicial argument at the close of the guilt phase

of the trial, (see Tharpe v. State, 262 Ga. at 113114(16));

That portion of Claim IV, wherein Petitioner alleges

that his constitutional rights were violated by the

prosecutor's prejudicial and improper closing argument

at the sentencing phase of the trial, (see Tharpe v.

State, 262 Ga. at 113-114(16));

That portion of Claim VI, wherein Petitioner alleges

that the unified appeal procedure as it was applied to

Petitioner raised Claims I - XXXIII in his Consolidated First

Amended Petition for Writ of Habeas Corpus and Motion For Leave

to Amend filed on December 31, 1997. Petitioner raised Claims

XXXIV - XXXXI in his Second Amended Petition for Writ of Habeas

Corpus filed on January 21, 1998.

the Petitioner's case violated his constitutional

rights, (see Tharpe v. state, 262 Ga. at 111(2));

That portion of Claim IX, wherein Petitioner alleges

that the State exercised its preemptory challenges in

a racially discriminatory manner, (see Tharpe v.

State, 262 Ga. at 111-112(6));

That portion of Claim XI, wherein Petitioner alleges

that the trial court's instructions to the jury in the

guilt phase of trial violated Petitioner's

consti tutional rights, (see Tharpe v. State, 262 Ga.

at 113(10-11));

That portion of Claim XII, wherein Petitioner alleges

that the trial.court's instructions to the jury in the

sentencing phase of Petitioner's trial violated his

consti tutional rights, (see Tharpe v. State, 262 Ga.

at 113 (12-13));

That portion of Claim XIV, wherein Petitioner alleges

that the exclusion for cause of prospective jurors

with moral scruples against the death penalty violated

Petitioner's constitutional rights, (see Tharpe v.

State, 262 Ga. at 113(14));

That portion of Claim XXI, wherein Petitioner alleges

that the State introduced insufficient evidence to

convict him beyond a reasonable doubt and that the

State failed to adduce sufficient evidence to support

the aggravating circumstances alleged, (see Tharpe v.

State, 262 Ga. at 111-115 (1) (22));

That portion of Claim XXVIII, wherein Petitioner

alleges that his sentence of death was imposed

arbitrarily and capriciously and pursuant to a pattern

and practice of discrimination in the administration

and imposition of the death penalty in Georgia, (see

Tharpe v. State, 262 Ga. at 115(23)); and

That portion of Claim XXX, wherein Petitioner alleges

that his constitutional rights were violated by the

State's use of aggravating evidence not set ,out in the

statute and the sentencing jury's reliance upon

inadmissible extra judicial evidence in aggravation,

(See Tharpe v. State, 262 Ga. at 112-116).

CLAIMS THAT ARE PROCEDURALLY DEFAULTED

The Court finds that the following claims were not raised

on direct appeal and Petitioner did not establish cause and

prejudice sufficient to excuse the procedural default of these

claims in this collateral proceeding.

Ga. 239, 336 S.E.2d 754

See Black v. Hardin, 255

(1985); Valenzuela v. Newsome, 253 Ga.

793, 325 S.E.2d 370 (1985); O.C.G.A. § 9-14-48(d).

That portion of Cla~ II, wherein Petitioner alleges that

his rights to due process and a fair trial were violated by

prejudicial remarks by- the prosecution in its opening

statement to the jury;

That portion of Claim V, wherein Petitioner alleges

that the prosecution failed to disclose to Petitioner

evidence in its possession which was material, and

exculpatory on issues of guilt and/or punishment;

That portion of Claim VII, wherein Petitioner alleges

that the trial court erred in failing to provide

counsel with adequate funds for experts to allow

counsel to adequately represent Petitioner;

Claim X, wherein Petitioner alleges that his

constitutional rights were violated by misconduct

involving Petitioner's jury;

That portion of Cla~ XI, wherein Petitioner alleges

that the trial court erred its guilt phase charge to

the jury; to the extent these allegations of error

were raised on direct appeal and decided adversely to

him, they are procedurally barred by the doctrine of

res judicata;

That portion of Cla~ XIII, wherein Petitioner alleges

that the trial court failed to strike for cause

several venire persons whose attitudes toward the

death penalty would have prevented or substantially

impaired their performance as jurors;

That portion of Claim XV, wherein Petitioner alleges

that the State unconstitutionally interfered with the

defense investigation of Petitioner's case

That portion of Claim XVI, wherein Petitioner alleges

that the grand jury indictment of Petitioner was

invalid;

That portion of Claim XVII, wherein Petitioner alleges

that the prosecutor's refusal to allow Petitioner full

pretrial discovery of information available violated

Petitioner's rights;

That portion of Claim XVIII, wherein Petitioner

alleges that his rights to a fair trial and due

process were violated when the jury was not

sequestered in order to avoid contact with prejudicial

publicity, hostility to the defendant, and

communications with third parties;

That portion of Claim XIX, wherein Petitioner alleges

that his constitutional rights were violated by

prejudicially excessive numbers of armed and uniformed

law enforcement personnel at his trial;

That portion of Claim XX, wherein Petitioner alleges

that his right to confront his accusers was violated

by the introduction of hearsay testimony;

That portion of Claim XXII, wherein Petitioner alleges

that his death sentence should be set aside on grounds

that Petitioner is mentally ill and/or mentally

retarded;

That portion of Claim XXVI, wherein Petitioner alleges

that the trial court improperly permitted the

introduction of inflammatory and unduly prejudicial

evidence depriving Petitioner of a fair trial;

That portion of Claim XXVII, wherein it is alleged

that the arbitrary abuse of discretion inherent in the

prosecution's decision to seek the death penalty

violated Petitioner's constitutional rights;

That portion of Cla~ XXVII, wherein Petitioner

alleges that his sentence of death was imposed

arbitrarily and capriciously, and pursuant to a

pattern and practice of discrimination in the

administration and imposition of the death penalty in

Georgia, to the extent this claim was raised and

adjudicated adversely to Petitioner on direct appeal

it is barred by the doctrine of res judicata;

That portion of Claim XXIX, wherein Petitioner alleges

that he was denied due process of law when the same

jury that convicted him was responsible for

determining the appropriate sentence; and

That portion of Cla~ XXXI, wherein Petitioner alleges

that the decision makers in his case were motivated by

racial animus in violation of Petitioner's

constitutional rights.

CLAIMS THAT ARE NON-COGNIZABLE

Petitioner's allegation in Petitioner's Post-Hearing Brief

that lethal injection is cruel and unusual punishment is noncognizable in these habeas proceedings as it is not an assertion

of a "substantial denial" of Petitioner's constitutional rights

"in the proceedings which resulted in his conviction."

9-14-42(a).

O.C.G.A.

Even if this Court were to find that this claim

is cognizable, which it does not, this claim is without merit

because this Court is bound by all decisions of the Georgia

Supreme Court holding that lethal injection in Georgia has not

been shown to be unconstitutional.

See Braley v. State, 276 Ga.

47, 56, 572 S.E.2d 583 (2003), citing Dawson v. State, 274 Ga.

327, 335-336, 554 S.E.2d 337 (2001).

Moreover, the Georgia

Supreme Court has repeatedly upheld the constitutionality of

lethal injection.

Braley v. State, 276 Ga. 47, 56, 572 S.E.2d

583 (2002); Franks v. State, 278 Ga. 246, 265, 599 S.E.2d 134

(2004); Riley v. State, 278 Ga. 677, 689, 604 S.E.2d 488

Lewis v. State, 279 Ga. 756, 766, 620 S.E.2d 778

v. State, 280 Ga. 125, 127,

(2004);

(2005); Nance

623 S.E.2d 470 (2005); Williams v.

State, 281 Ga. 87, 90, 635 S.E.2d 146 (2006).

As such, this

claim is hereby denied.

Additionally, Petitioner's allegation of cumulative error

in C~aim XXXIII is non-cognizable in these habeas proceedings as

the Georgia Supreme Court has repeatedly held that there is no

cumulative error rule in Georgia.

See, e.g., Rogers v. State,

282 Ga. 659, 668 (2007); Schofield v. Holsey, 281 Ga. 809, 812

n. 1

(2007); Smith v. State, 277 Ga. 213, 219 (2003); Head v.

Taylor, 273 Ga. 69, 70 (2000).

As such, this ciaim is hereby

denied.

CLAIMS RAISED BY PETITIONER THAT ARE MOOT

As electrocution is no longer used as the method of

execution in Georgia, Dawson v. State, 274 Ga. 327 (2001), the

Court finds that the following claims regarding electrocution

are moot:

C~aim XXIV, wherein Petitioner alleges that the death

penalty by electrocution, is cruel and unusual

punishment; and

XXV, wherein Petitioner alleges that execution

by electrocution is cruel and unusual punishment.

C~aim

CLAIMS THAT ARE REVIEWABLE BY THIS COURT

As Petitioner had the same counsel throughout trial and

appeal, Petitioner's ineffective assistance of counsel

claims could not have been raised previously.

Thomas, 261 Ga. 661, 409 S.E. 2d 507

Ryan v.

(1991); White v.

Kelso, 261 Ga. 32, 401 S.E.2d 733 (1991).

Accordingly,

these claims (Claim I) are properly before the Court for

review.

PETITIONER HAS FAILED TO CARRY HIS HEAVY BURDEN OF

ESTABLISHING, PURSUANT TO THE TWO-PRONG STRICKLAND

STANDARD, THAT COUNSEL'S PERFORMANCE WAS DEFICIENT AND

THAT COUNSEL'S REPRESENTATION RESULTED IN PREJUDICE TO

PETITIONER.

Applicable Standards Governing this Court's Review of

Petitioner's Ineffectiveness Cla~s

In Claim I of Petitioner's Amended Petition for Writ of

Habeas Corpus, as well as numerous footnotes throughout the

petition, Petitioner alleges that he was denied effective

assistance of counsel in violation of his constitutional rights.

This Court denies this claim.

This Court finds that

Petitioner failed to prove both the deficiency and prejudice

prongs of the test for reviewing claims of ineffective

assistance of counsel under the applicable standards set forth

u.s.

in Strickland v. Washington, 466

668

(1984).

Because

Petitioner failed to overcome Strickland's intentionally heavy

burden of proving ineffectiveness, the writ of habeas corpus is

denied as to Petitioner's claims of ineffective assistance of

counsel.

The standards for reviewing allegations of ineffective

assistance of counsel were established by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984).

To prevail on a claim of ineffective assistance of counsel, a

petitioner must establish both that his attorney's performance

was deficient and that the attorney's error resulted in

prejudice to Petitioner's case.

698.

See Strickland, 466 U.S. at

Unless a petitioner makes both showings, his conviction or

death sentence can not be found to be the unreliable result of a

breakdown in the adversarial process.

687.

Strickland, 466 U.S. at

The Strickland standard, which requires that a petitioner

must satisfy both performance and prejudice prongs to

demonstrate ineffectiveness was adopted by the Georgia Supreme

Court in Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d. 362

(1985); see also Jones v. State, 279 Ga. 854 (2005); Washington

v. State, 279 Ga. 722 (2005); Davis v. Turpin, 273 Ga. 244

(2000); Hayes v. State, 263 Ga. 15 (1993).

Therefore, the

Strickland standard governs this Court's review of Petitioner's

ineffective assistance claims.

Deficient Perfor.mance Prong

In examining the deficient performance prong of the

Strickland standard, the United States Supreme Court instructed,

"a court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'"

Strickland, 466 u.s. at 689

(internal citations omitted) (emphasis added); see also Wiggins

v. State, 280 Ga. 627

(2005); Sims v. State, 278 Ga. 587 (2004);

Brady v. State, 270 Ga. 574 (1999).

The Court in Strickland

also stressed that "[cJounsel is strongly presumed to have

rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment."

Strickland, 466 u.S. at 690; accord Smith v. Francis, 253 Ga. at

783; see also Zant v. Moon, 264 Ga. 93, 97

(1994).

With regard to this presumption in favor of finding counsel

to be effective, the Supreme Court held in Burger v. Kemp that a

reviewing court should "address not what is prudent or

appropriate, but only what is constitutionally compelled."

u.S. 776, 780

483

(1987); see also Zant v. Moon, 264 Ga. at 97-98.

In applying the Strickland standards, the Georgia Supreme Court

recognized that "[tJhe test for reasonable attorney performance

'has nothing to do with what the best lawyers would have done.

Nor is the test even what most good lawyers would have done.

ask only whether some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at

trial.'"

Jefferson v. Zant, 263 Ga. 316, 318, 431 S.E.2d 110

(1993) (quoting White v. Singletary, 972 F.2d 1218, 1220-1221

(11th Cir. 1992)) (emphasis added).

See also

(noting that no absolute duty

exists to present all possible mitigating evidence available).

~Our

decisions are inconsistent with any notion that counsel must

present all available mitigating circumstance evidence.

Considering the realities of the courtroom, more is not always

better ... Good advocacy requires 'winnowing out' some arguments,

witnesses, evidence and so on, to stress others. n

Chandler v.

United States, 218 F.3d 1305, 1319 (11th Cir. 2000)

(citing

Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994).

The affidavits submitted by Petitioner in support of his

claim that trial counsel were ineffective in their presentation

of mitigating life history evidence are insufficient to prove

deficiency.

This Court finds that trial counsel made a

reasonable presentation of Petitioner's life history in

mitigation, especially when viewed from trial counsel's

perspective at the time of trial.

Furthermore, this Court finds

that the trial counsel were reasonable in their selection and

preparation of the mitigation witnesses, and that counsel were

reasonable in their chosen mitigation strategy and the testimony

that they elicited from these witnesses.

From a review of the entire record, this Court finds that

trial counsel were not deficient or Petitioner prejudiced by

trial counsel's investigation and presentation of Petitioner's

background and "good character" as they presented numerous

witnesses to testify to these factors during the sentencing phase

of Petitioner's trial.

Petitioner Failed to Establish that Trial Counsel Were

Deficient Or Petitioner Suffered Prejudice with Regard

to the Motions Filed by Trial Counsel

This Court finds that Petitioner's allegation that trial

counsel's performance was deficient and that Petitioner suffered

prejudice with regard to the motions filed by trial counsel has

no merit, and thus the claim is denied.

The record establishes that trial counsel filed numerous

motions on behalf of Petitioner, both in the early stages of

pre-trial and continuing through the trial proceedings.

Those

motions include, but are not limited to: Motion to Send Jurors

Questionnaire; Motion for Psychiatric Assistance; Motion for

Funds to Hire an Investigator; Motion to Strike and Quash as

Unconstitutional the Georgia Statutes Providing for the

Imposition of the Death Penalty and O.C.G.A. §15-12-164(a) (4)

and §15-12-164(c); and numerous Motions in Limine to exclude

prejudicial, inflammatory and irrelevant evidence.

(Record

Index) .

For assistance in determining which motions to file, trial

counsel consulted the Southern Center for Human Rights Death

Penalty manual, "Defending a Capital Case in Georgia," which

outlined motions to be considered for filing in death penalty

cases.

The trial court heard argument on the pre-trial motions

on November 29, 1990 and December 17, 1990.

The court also

heard argument on outstanding motions and issues as the trial

proceeded, as evidenced by the numerous defense motions for

mistrial.

(T. 2035-2036; 2040-2042; 2075-2078; 2124-2128; 2254-

2256; 2274-2275).

This Court finds that Petitioner has clearly failed to

carry his burden of establishing this claim as he has failed to

even set out the basis of this claim.

See Rogers v. Zant, 13

F.3d 384, 386 (11th Cir. 1994) ("This burden, which is

petitioner's to bear, is and is supposed to be a heavy one").

This Court denies relief.

Trial Counsel's Investigation and Presentation of Evidence

Surrounding the Kidnapping of Ms. Freeman and Ms. Tharpe

Was Not Deficient and Trial Counsel's Representation Did

Not Prejudice Petitioner.

This Court finds that contrary to Petitioner's allegation

that trial counsel's performance was deficient in investigating

and presenting evidence surrounding the charges of kidnapping

with bodily injury as to the victims, Ms. Freeman and Ms.

Tharpe, trial counsel did in fact investigate the charges and

vigorously argued that the evidence did not support the charges

being presented to the jury.

The record reflects that trial counsel asserted in their

Motion for Directed Verdict that Petitioner was entitled to a

directed verdict on the Kidnapping with Bodily Injury,

and 3) .

(T. 2231).

(Counts 1

As the charge pertained to Ms. Freeman

(Count 1), the bodily injury alleged by the State was the wound

to Ms. Freeman's arm.

Id.

Trial counsel argued that the

evidence suggested that the wound to Ms. Freeman's arm was, in

fact, the same shot as the "death-dealing blow," thus removing

the "bodily injury" component of the charge as it related to Ms.

Freeman.

Id.

Further, trial counsel argued that there was not

even a kidnapping of Ms. Freeman as Petitioner told her "you

can't go with us" and would not allow Ms. Freeman to get in the

truck.

(T.

2333-2334).

The trial court determined that there was sufficient

evidence to support the kidnapping based, at the least, on the

evidence that Petitioner approached the victims holding a rifle

and ordered them ~under his tutelage" over to Petitioner's car.

(T. 2335).

~bodily

Furthermore, the trial court determined that the

injury" component was a question for the jury, and that

there was sufficient evidence to present the charge to the jury.

rd.

Trial counsel then went on to argue that Petitioner was

entitled to a directed verdict on the

~kidnapping

with bodily

injury" charge as it related to Petitioner's wife, Migrisus

Tharpe,

(Count 3).

Trial counsel's contention was that there

was no rape of Ms. Tharpe, thus removing the bodily injury

component, and that Ms. Tharpe went in the truck with Petitioner

freely, eliminating the kidnapping altogether.

(T. 2337-2339).

Trial counsel asserted even further that if the trial court

determined there was sufficient evidence of a rape and

kidnapping, that the rape took place in a county other than

Jones County, and thus could not be used as a component in the

Jones County charge.

(T.2338-2340).

The trial court disagreed

and, again, determined that there was sufficient evidence to

present the kidnapping with bodily injury of Ms. Tharpe to the

jury.

(T.2342).

Trial counsel also made an argument to the trial court that

there was not sufficient evidence to convict Petitioner of Count

4, armed robbery, as it was unclear how Ms. Freeman's pocketbook

ended up in the borrowed truck.

(T. 2329).

After review of the

evidence and argument of trial counsel, the State agreed to

withdraw the charge.

Id.

Trial counsel went even further by requesting that the

trial court explain to the jury that they should not interpret

the withdrawal of the armed robbery charge as the State's

agreement to dismiss all claims that were "iffy," (T. 2345), as

trial counsel did not want the jurors to believe the remaining

charges were necessarily supported by sufficient evidence.

(T.

2345) .

The record clearly illustrates that trial counsel did, in

fact, investigate and thoroughly argue that the charges of

kidnapping with bodily injury and armed robbery were not

supported by the evidence, properly applying Strickland, trial

counsel's performance can not be found deficient.

Additionally, this Court finds that Petitioner can not

prove that he was prejudiced by the investigation and

presentation of evidence as the Georgia Supreme Court held on

direct appeal that there was sufficient evidence to support the

jury's findings of guilt to both of these charges.

State, 262 Ga. 110, 115 (1992).

Tharpe v.

Petitioner Failed to Establish that Trial Counsel Were

Deficient or That Petitioner Suffered Prejudice with

Regard to the Examination of Potential Jurors.

Petitioner alleges that trial counsel's performance was

deficient and that Petitioner suffered prejudice with regard to

the examination of potential jurors.

This Court finds that

Petitioner has established neither deficient performance nor the

requisite prejudice under Strickland.

The Georgia Supreme Court has recognized that the trial

counsel's conduct in the voir dire proceeding is a matter of

strategy which generally insulates this conduct from

constituting ineffective assistance of counsel.

Supreme Court has stated,

~[b]y

The Georgia

their nature, trial counsel's

conduct of voir dire and the decision on whether to interpose

challenges are matters of trial tactics.

264 Ga. 879 (7)

at 289."

(b)

(452 S.E.2d 745)

See Hammond v. State,

(1995); Williams, 258 Ga.

Head v. Carr, 273 Ga. 613, 623 (2001).

This Court finds, in this case, that trial counsel had a

reasonable approach to the conducting of the voir dire

proceedings, as, at the beginning of the pre-trial proceedings,

trial counsel filed a motion to allow counsel to send

questionnaires out through the Clerk of the Superior Court to

all of the potential jurors.

84).

(HT, December 11, 1998, Vol. I, p.

Trial counsel formulated their voir dire questions

~based

on [their] thoughts on the subject, plus questions [they] had

seen done before, questions [they] had used before and on the

manual [they] had and other information in [their] hands. n

Id.

Trial counsel presented the questionnaire to the trial court and

received approval with only some minor changes, all of which the

trial court told trial counsel they could ask on individual voir

dire,

just not in a general juror questionnaire.

(December 17,

1990, Motions hearing, pp. 102-117).

In addition to obtaining information about prospective

jurors by using their juror questionnaire and voir dire, trial

counsel also spoke with various people in Gray, Georgia about

the list of potential jurors, specifically those whom trial

counsel did not know, in order to "to get ideas about them.n

Id.

Furthermore, as to the composition of the jury they were

attempting to obtain, trial counsel testified that they were

particularly looking for "any kind of black juror as a rule,

unless they come across as being law enforcement ... or whether

they appear dogmatic or too conservative oriented n as these

jurors "are more willing to support a black person ... in trouble,

even in a case like this where there was a black victim. n

Id.

This Court finds that trial counsel reasonably prepared for

the voir dire proceedings and attempted, by using juror

questionnaires and talking to people in the community, to obtain

jurors who would be open to consideration of their presentation

of Petitioner's defense.

Therefore, the record does not support

the assertion that trial counsel rendered deficient performance

with respect to voir dire proceedings.

Further, the fa,ct that

Petitioner was convicted and received a death sentence, does not

establish the requisite Strickland prejudice.

This Court denies

any relief to this claim.

Petitioner Failed to Establish that Trial Counsel Were

Deficient Or Petitioner Suffered Prejudice with Regard

to Evidence that was Offered into Evidence at Both

Phases of Tria~.

Petitioner alleges that trial counsel's performance was

deficient and that Petitioner suffered prejudice with regard to

the evidence that was presented at trial.

However, this Court

finds that Petitioner did not raise this claim with any

specificity and does not present any evidence in support of any

such claim, thus it is denied.

Petitioner Failed to Establish that Trial Counsel Were

Deficient Or Petitioner Suffered Prejudice by not

Objecting to the Prosecutor's Closing Argument in Either

Phase of Trial.

This Court finds that contrary to Petitioner's allegation

that trial counsel's performance was deficient and that

Petitioner was prejudiced because trial counsel did not object

to the State's closing argument in either the guilt or

sentencing phase of trial, the record establishes that trial

counsel were not deficient and Petitioner was not prejudiced,

thus the claim is denied.

Furthermore, this Court notes that on direct appeal

Petitioner raised the claim that the prosecutor's closing

arguments were improper at both phases of the trial.

The

Georgia Supreme Court held that under the ruling in Todd, "the

test for reversible error is ... whether the improper argument in

reasonable probability changed the result of the trial."

v. State, 262 Ga. 110 (1992)

(2a)

(1991)).

Tharpe

(citing Todd v. State, 261 Ga. 766

The Georgia Supreme Court found that there was

nothing in the State's closing arguments that would rise to

being "so harmful as to warrant relief," and thus denied

Petitioner's claim.

Id. at 114.

This Court finds that, as trial counsel raised this claim

on direct appeal, they were not deficient.

Further, as shown by

the opinion by the Georgia Supreme Court, Petitioner can not

show that he was prejudiced by the arguments and thus his claim

for relief is denied.

Petitioner Failed to Establish that Trial Counsel Were

Deficient and Petitioner Suffered Prejudice Based on the

Charges given by the Trial Court to the Jury.

Charges to the Jury at Guilt Phase

Petitioner complains that trial counsel were ineffective

because they did not raise the "proper objections" to "improper

charges" given by the trial court to the jury at the conclusion

of the guilt phase of trial.

This Court finds that Petitioner

does not raise these allegations with any specificity or

evidence to support his claims, thus the claim is denied.

Furthermore, this Court notes, the Georgia Supreme Court

held on direct appeal,

(Tharpe v. State, 262 Ga. 110), "there

were no errors in the trial court's instructions on reasonable

doubt; there were no infirmities in the instruction that the

jury should not be concerned at the guilt-phase of the trial

with the effect of its verdict; and the voluntary intoxication

instruction was not incomplete."

(1992)

Tharpe v. State, 262 Ga. 110

(citing Potts v. State, 261 Ga. 716 (14) (410 S.E.2d

89) (1991), Walker v. State, 254 Ga. 149, 158 (327 S.E.2d

475) (1985)) .

As these instructions were properly charged to the jury at

the time of Petitioner's trial, Petitioner failed to show

prejudice or any deficiency as there existed no error in the

instructions at the time of Petitioner's alleged violation.

This Court also finds that Petitioner failed to show prejudice

because given the heinous nature of his crimes, the substitution

of new instructions, although Petitioner has not proposed any

new instructions, would be unlikely to change the outcome of the

trial.

Petitioner's claim is denied.

ii. Charges to the Jury at the sentencing Phase

Petitioner alleged in his petition, in Claim XII, that the

trial court erred in its instructions to the jury during the

sentencing phase of trial.

After a review of the sentencing

phase jury instructions, in their entirety, this Court finds

that Petitioner failed to show that the trial court erred in its

sentencing phase instructions to the jury, as was stated in

Tharpe v. State, 262 Ga. 110 (1992).

Therefore, these claims

are without merit.

Further, Petitioner alleges that trial counsel were

ineffective in failing to object to the allegedly erroneous jury

instructions at trial.

This Court finds that, as Petitioner's

claim regarding the sentencing charges have no merit, trial

counsel is not deficient, nor is Petitioner prejudiced by trial

counsel not objecting to the proper charges.

Washington, 466 u.S. 668 (1984).

See Strickland v.

Accordingly, this Court rules

that Petitioner's claim of ineffective assistance of trial

counsel with regard to sentencing phase jury instructions is

without merit.

Petitioner Failed to Establish that Trial Counsel

Were Deficient Or Petitioner Suffered Prejudice with

Regard to Trial Counsel's Closing Argument.

Closing Argument in the Guilt Phase

The record before this Court establishes that trial

counsel's thorough investigation and presentation of evidence

during the guilt phase culminated in the defense's closing

argument by Mr. Newberry.

(T. 2414-2433).

This Court finds

that the closing argument was reasonable and did not prejudice

Petitioner, thus the claim is denied.

The record establishes that trial counsel's goal was to

convince the jury that the indicted charges were not supported

by the evidence and that Petitioner should be convicted of

voluntary manslaughter, not murder.

(T. 2417).

Importantly,

trial counsel argued to the jury that Petitioner did not intend

to kill and did not have the capacity to premeditate or plan the

crimes, but instead was overcome with emotion and anger at Ms.

Freeman's interference with his attempts to reconcile with his

wife.

(T. 2428-2430).

In support of this portion of the

argument, Mr. Newberry referred to Ms. Tharpe's testimony that

Petitioner "acted like a child" after the shooting and followed

her instructions.

(T. 2428-2439).

In order to mitigate the State's evidence that Petitioner

planned his crimes, trial counsel explained to the jury that the

description of the manner in which Petitioner held the gun was

not consistent with the intent to kill and that other physical

evidence presented by the State was of no consequence.

2420-2423).

(T.

Furthermore, Mr. Newberry characterized

Petitioner's statement to Michael Harley, indicating Petitioner

planned to harm members of Migrisus Tharpe's family, as simply

an example of Petitioner "spouting off," and attacked Mr.

Harley's credibility by reminding the jury that Mr. Harley did

not contact authorities to report Petitioner's statements before

or after Ms. Freeman's murder.

(T.

2431).

Mr. Newberry also argued to the jury that the State's

assertion that Petitioner was under the influence of drugs was

not supported by evidence as the State never performed a drug

test.

(T. 2421-2422, 2426-2427).

Trial counsel argued that

this suggestion was offered by the State only to inflame the

emotions of the jury along with testimony from Ms. Freeman's

husband regarding discovering his wife's body.

Id.

Mr. Newberry concluded his closing argument by imploring

the jury not to allow emotion, elicited by the tragic nature of

Ms. Freeman's death, to prevent the fair result of the trial,

which would be a conviction of manslaughter, not murder.

(T.

2431-2433) .

This Court determines, that based on the evidence presented

in the guilt phase of trial, Mr. Newberry made a reasonable

argument by challenging the charges against Petitioner as being

too harsh and imploring the jury to find that Petitioner had

acted out of passion and emotion, and was thus guilty of only

manslaughter.

The record before this Court belies that trial

counsel's closing argument was unreasonable or prejudicial to

Petitioner and relief is denied.

ii. Closing argument in Sentencing phase

As the record reflects, it was trial counsel's goal, early

on, to focus on the sentencing phase argument in an attempt to

save Petitioner's life by presenting Petitioner in the best

light possible.

In furtherance of that goal, Mr. Newberry used

the closing remarks of the sentencing phase to convince the jury

that Petitioner should be sentenced to life imprisonment, as

Petitioner's actions were the result of an emotional domestic

dispute, and execution would be a disproportionate sentence

given the questions surrounding the State's case.

(T.

2667-

2681) .

In order to compel the jury to sentence Petitioner to life

imprisonment, Mr. Newberry remarked that Petitioner's case was

distinguishable from one where a death sentence is appropriate

and that Petitioner's criminal history consisted of mainly

traffic violations.

(T. 2671, 2676).

Trial counsel attempted

to mitigate the kidnapping as to Ms. Freeman by noting that to

the extent there was a kidnapping it was very brief, whereas,

regarding the kidnapping of Migrisus Tharpe, Mr. Newberry

offered the fact that the gun was eventually unloaded and thrown

away as evidence Petitioner did not intend to harm Ms. Tharpe.

(T. 2677-2678).

In light of the aggravated characterization of Petitioner's

crimes presented by the State, Mr. Newberry asked the jury to

consider it noteworthy that Petitioner's wife testified on

(T. 2674).

Petitioner's behalf during sentencing.

Trial

counsel concluded the sentencing phase closing remarks by

advising the jury that Petitioner's family, particularly

Petitioner's mother and daughters would suffer if Petitioner

were sentenced to death.

(T. 2675).

Mr. Newberry further

cautioned that given the questions surrounding the State's case

and the lack of intent to commit the crime a life sentence would

be appropriate.

(T.

2679-2681).

This Court finds that trial counsel's closing argument

highlighted each of the points and evidence that trial counsel

presented as mitigation during the sentencing phase.

Most

importantly to their strategy, trial counsel implored the jury

to remember that Petitioner, a man in deep emotional distress

when the crime was committed, had a family who would suffer

deeply if he received a death sentence.

This Court determines

that the argument was clearly reasonable and did not prejudice

Petitioner, thus Petitioner has not met his burden under

Strickland and the claim is denied.

Tria1 Counse1's Strategic Decision Not to Stress

Petitioner's Substance Abuse Prob1em was Reasonab1e and

Petitioner was not Prejudiced.

After a complete review of the record, this Court finds

that trial counsel were aware of Petitioner's substance abuse

problem and made the reasonable strategic decision not to stress

this issue to the jury.

Trial counsel testified that they knew

that Petitioner had a history of substance abuse problems and

knew of his "habitual violator" status concerning numerous

offenses of driving under the influence.

1998, Vol. I, p. 106).

(HT, December 11,

Mr. Newberry testified that trial

counsel wanted "as little said about drugs and alcohol as

possible."

(HT, December 11, 1998, Vol. I, p. 109).

In fact,

trial counsel went so far as to object at numerous stages both

pre-trial and throughout the trial to prevent the State from

offering any evidence surrounding Petitioner's habitual violator

driving offenses.

Id.

Trial counsel testified that they made the strategic

decision not to present this history during the sentencing phase

because trial counsel felt it would only "exacerbate the

problem."

(HT, December 11, 1998, Vol. I, p. 107).

Mr.

Newberry testified that there was no evidence that Petitioner's

drinking was "to the extent that it affected his mind or

anything."

Id.

Further, trial counsel knew that whether

Petitioner was intoxicated on the morning of the crime was not a

legal and justifiable defense, thus trial counsel were concerned

that the information might have the opposite effect, and become

an aggravator in the minds of the jury, particularly "a Jones

County jury."

(HT, December 11, 1998, Vol. I, p. 107).

As previously set forth, a "factor requiring deference to

counsel's judgment call" is "his perception of how the jury

would react to the evidence."

Spaziano v. Singletary, 36 F.3d

1028, 1040 (11th Cir. 1994).

As held by the Eleventh Circuit

Court of Appeals, "a defense attorney's sense of the jury's

reaction to testimony or evidence is a sound basis on which to

make strategic decisions.

See Card v. Dugger, 911 F.2d 1494,

1511 (11th Cir. 1990); Foster v. Strickland, 707 F.2d 1339, 1344

(11th Cir. 1983), cert. denied, 466 u.S. 993, 104 S. Ct. 2375,

80 L. Ed. 2d 847 (1984); Gates, 863 F.2d at 1499."

Singletary, 36 F.3d 1028, 1040 (11th Cir. 1994).

Spaziano v.

"Counsel's

knowledge of local attitudes, and 'evaluation of the particular

jury, his sense of the chemistry of the courtroom are just a few

of the elusive, intangible factors that are not apparent to a

reviewing court, but are considered by most effective counsel in

making a variety of trial and pretrial decisions.'"

Waters v.

Thomas, 46 F.3d at 1521-1522.

"One of the circumstances that bears upon the

reasonableness of an investigation is the information supplied

by counsel's own client.

Just as information supplied by the

defendant may point to the need for further investigation, the

lack of information supplied may also indicate that further

investigation would be unnecessary or fruitless."

Waldrop v.

Thigpen, 857 F.Supp. 872, 915-916 (D. Ala. 1994) citing Mulligan

v. Kemp, 771 F.2d 1436 (11th Cir. 1985).

As Petitioner never

informed trial counsel that he came from an abusive home or

environment, and as none Of Petitioner's family members or

friends reported such conditions from Petitioner's childhood,

this Court concludes that trial counsel is not deficient.

The Court in Strickland instructed, "a court must indulge a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound

trial strategy.'"

omitted)

Strickland, 466 u.s. at 689 (citations

(quoted in Bowley, 261 Ga. at 280).

"Counsel is

strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable

professional judgment."

Id. at 690; accord Smith v. Francis,

253 Ga. at 783; see also Zant v. Moon, 264 Ga. 93, 97, 440

S.E.2d 657

(1994).

As the Court in Strickland also instructed, the proper

focus of a court reviewing a claim of ineffective assistance of

counsel is to "eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective

at the time."

Strickland v. Washington, 466 u.S. at 688.

(Emphasis added).

This Court concludes, that trial counsel conducted an

investigation of Petitioner's background prior to trial by

interviewing Petitioner, Petitioner's family and Petitioner's

friends, and were told that Petitioner came from a good,

Christian home, that his mother was a "fine lady" and that

Petitioner was "raised right."

Trial counsel testified that

during their investigation, they never heard anything about

Petitioner growing up in a "shothouse."

Vol. II, pp. 301-302).

(HT, December 11, 1998,

Mr. Newberry testified that all of

Petitioner's family members described Petitioner as having come

from a good, Christian home.

Id.

Moreover, this Court finds that trial counsel were not

deficient in not presenting the conflicting testimony that is

now presented by habeas counsel and Petitioner has failed to

prove that he was prejudiced, thus the claim is denied.

Furthermore, this Court notes that the evidence presented

during these habeas proceedings, particularly from affidavits of

family and friends of Petitioner, submit that Petitioner grew up

in an abusive, alcohol-laden environment.

This evidence

directly contradicts the testimony presented during the

sentencing phase of Petitioner's trial and the defense strategy

to save Petitioner's life.

Accordingly, this Court finds that

there is no prejudice to Petitioner and denies relief.

Tria1 Counse1 Conducted a Reasonab1e Investigation into

Petitioner's Background, Inc1uding Menta1 Hea1th.

Petitioner alleges trial counsel were ineffective for

failing to present evidence during the sentencing phase of trial

attempting to prove he was mentally retarded or had other mental

health problems.

However, this Court finds that prior to trial,

there was not evidence that was reasonably discoverable or

provided to trial counsel that would give trial counsel any

reason to suspect Petitioner was mentally retarded or suffered

from other mental health problems.

(HT, December 11, 1998, Vol.

I, pp. 112-113; 125; HT, December 11, 1998, Vol. II, Res. Ex. 3,

HT, December 11, 1998, Vol. II, Res. Ex. 4).

In fact, this

Court finds that the record establishes that trial counsel

investigated Petitioner's mental health and it was specifically

determined that Petitioner was not mentally retarded and that he

did not suffer from any other "psychosis".

(HT, December 11,

1998, Res. Ex. 2; Res. Ex. 3; Res. Ex. 4).

i. Pre-tria1 Anecdota1 Evidence Estab1ishes No Menta1

Retardation

A thorough review of the record before this Court

illustrates that trial counsel's investigation into Petitioner's

background for the purposes of presenting mitigation evidence

revealed that Petitioner was a well-adjusted member of society

portraying no symptoms of mental retardation or other mental

health problems and thus counsel were not deficient and

Petitioner was not prejudiced.

The evidence presented to this Court establishes that prior

to trial and during trial, Petitioner's family described

Petitioner as follows: "smart"; "a smart man"; a well-behaved

child and teenager; graduated from high school with "good

grades"; ran track on the high school track team; a good worker;

would paint or do odd jobs when he was not working elsewhere;

would help others when their cars were broken down on the road;

raised and was knowledgeable about dogs; had good relationships

with his entire family and had many friends; had maintained a

marriage to his wife for over eleven years; and nearly every

mitigation witness talked about how he had a good heart and was

friendly.

(T.

14:3010-11, 3012, 3016-17, 3022. 3024, 3069-

70,3077-78, 3080, 3088, 3099-100, 3101-102, 3153, 3154-55, 3175,

3191, 3198, 3220-22, 3228, 3252-55).

In fact, during the

sentencing phase of Petitioner's trial, prior to being sentenced

to death, family and friends described Petitioner as a "good

student."

(HT, December 11, 1998, Vol. I, pp. 112-116; HT,

December 11, 1998, Vol. I, pp. 96-97).

Naomi Tharpe,

Petitioner's mother, testified that Petitioner graduated from

Northeast High School and described him as a "smart" student who

made good grades.

(T.

2258-2259).

Additionally, this Court notes that in contrast to

Petitioner's newly drafted affidavits, trial counsel testified

that when speaking with Petitioner and Petitioner's family prior

to trial, including Petitioner's sister and aunt, they all spoke

of Petitioner's childhood and educational background in positive

terms.

(HT, December 11, 1998, Vol. I, p. 99).

Even

Petitioner's own sister, Audrey Pope, with whom Mr. Newberry

spoke on several occasions, never claimed that Petitioner's

childhood was anything other than good and never claimed

Petitioner was "slow."

(HT, December 11, 1998, Vol. I, p. 102).

The evidence reflects that trial counsel were aware that

there was some suspicion from the State's psychologist that

Petitioner was "socially promoted" in school.

However, that

suggestion was never corroborated by Petitioner or any of his

family members, who continually reported to trial counsel that

Petitioner was a good student.

p. 95).

(HT, December 11, 1998, Vol. I,

Further, trial counsel acknowledged that they never

spoke with Petitioner's teachers, who testified by affidavit in

these proceedings, that Petitioner was "slow."

However, trial

counsel further clarified that they had no basis for speaking

with these teachers as the psychological evaluations conducted

by two separate experts and trial counsel's interaction with

Petitioner affirmed that Petitioner's intellectual functioning

was never in doubt.

(RT, December 11, 1998, Vol. 1, pp. 296-

297) .

This Court finds that, based upon the entirety of the

information gathered by trial counsel, they had no indication or

basis to attempt to present a claim of mental retardation.

Instead, based on their interactions with Petitioner and the

reports from Petitioner's family and friends, trial counsel

determined that "there was never a ... basis at all for going with

this guy is so slow mentally that he can't be held responsible

for what he did, or that it would bring about sympathy, empathy

for him and keep him out of the chair."

(RT, December 11, 1998,

Vol. I, p. 130).

Additionally, Mr. Newberry testified that during his

extensive legal career, he has dealt with "many, many people who

were borderline of low intelligence or borderline retarded,

borderline mentally defective from Alzheimer's or various other

problems," and has had to make decisions "countless times" about

someone's competency to sign a legal document.

11, 1998, Vol. I, p. 115).

(RT, December

Based on this experience and their

investigation, as well as talking with Petitioner on numerous

occasions, Mr. Newberry testified that he had "no doubt" that

Petitioner was not mentally retarded.

Furthermore, Mr. Newberry

testified that he had dealt with mental health issues in other

cases about fifteen to twenty times.

(RT, December 11, 1998,

Vol. I, pp. 113-115).

Mr. Newberry testified that his opinion

of the suggestion that Petitioner is mentally retarded was

"fairly preposterous."

Id.

ii. Pre-trial Expert Evaluations Established No Mental

Retardation

The record before this Court establishes that trial counsel

hired Dr. Archer Moore to conduct a mental health evaluation of

Petitioner to determine if there were any possible mental health

defenses to present at trial.

Dr. Moore concluded in his

evaluation that Petitioner "does not meet the criterion for a

psychosis, nor, in truth, for a neurotic disorder such as

depression or anxiety."

EX. 4).

(HT, December 11, 1998, Vol. II, RES.

Dr. Moore did opine that Petitioner had a drug and

alcohol problem, which trial counsel determined would not be

mitigating, but possibly aggravating evidence.

Id.

Most

significantly, to Petitioner's claim of alleged mental

retardation, Dr. Moore specifically found that Petitioner's

intelligence "falls in the borderline range, but, here again,

should not be considered mentally retarded."

Id.

(Emphasis

added) .

However, Mr. Newberry continued to seek some possible

mitigating evidence from Dr. Moore's evaluation.

Mr. Newberry

inquired of Dr. Moore, " ... is there anything that you could point

out as a witness that could be of assistance here, something

that you could say or some peculiarity that would reflect

(HT, December 11, 1998, Vol. I, pp. 124-125).

Mr. Newberry

testified that Dr. Moore replied, "If I get up there, you know,

the State is going to question me, too ... [Petitioner] is a 'mean

son-of-a-bitch'."

Id.

After consultation with Dr. Moore, trial counsel determined

not to utilize Dr. Moore for trial.

Mr. Newberry testified that

he determined that there were "no psychological problems, mental

problems like that, no other problems that the [Petitioner] had

that would have helped me in trial and benefit [Petitioner], or

benefit our case."

(HT, December 11, 1998, Vol. I. p. 123).

Dr. Moore's findings may not have been seen as mitigating, and

quite possibly, could have been aggravating.

Strategic

decisions, made after an investigation, such as this, are

"virtually unchallengeable."

Ferrell v. Head, 261 Ga. at 120.

Furthermore, trial counsel had the results of a courtordered pre-trial psychological evaluation by Dr. Robert Storms.

In addition to other opinions, including "there was no reason to

believe that Mr. Tharpe experienced a disorder of mood or

thought that interfered with his ability to distinguish right

from wrong or illegality from legality," Dr. Storms opined that

Petitioner "exhibited no signs of mental retardation and his IQ

score on the Ravens Progressive Matrices is 87, which places him

in the average range of intelligence."

(HT, December 11, 1998,

Vol. II, RES. EX. 2).

This Court concludes, after a review of all of the

evidence, that trial counsel conducted an investigation into

Petitioner's background by hiring an independent expert to

evaluation Petitioner for mental health problems, specifically

including mental retardation, and there was no evidence that

Petitioner was mentally retarded or exhibited signs of other

mental health problems.

This Court finds that Petitioner has

failed to prove trial counsel's investigation and presentation

of evidence on this topic was deficient.

Furthermore, this Court finds that Petitioner has failed to

establish, utilizing his invalid and easily rebutted evidence,

that twelve jurors would have unanimously found, beyond a

reasonable doubt, that he was mentally retarded Petitioner has

also failed to prove prejudice and the claim is denied.

Trial Counsel's Strategic Decision to·Not Present the

Testimony of Dr. Moore at Trial was Reasonable and

Petitioner was not Prejudiced

This Court finds that a review of the record reflects that

trial counsel conducted a reasonable investigation into

Petitioner's mental health and determined that there was nothing

that would be beneficial to mitigate their case.

This Court

finds that as a result of this reasonable investigation, trial

counsel made the strategic decision not to call Dr. Moore to

testify at trial, thus Petitioner fails to show that trial

counsel's performance was deficient or that he was prejudiced by

the decision, thus the claim is denied.

This Court finds that trial counsel made a reasonable

decision when counsel determined that showing the jury that

Petitioner may be of some limited intelligence would not be

beneficial.

Trial counsel testified, "we considered that we

wouldn't get anywhere with that defense ... we had a lot better

case saying, here is a normal guy that has got great value to

him and that is, he is a person, he thinks like we do, he has

emotions like we do."

(RT, December 11, 1998, Vol. I, p. 129).

Further, not only did trial counsel make the determination,

based on consultation with Dr. Moore that raising mental health

issues would not be beneficial to Petitioner's case, trial

counsel determined that calling Dr. Moore may produce

aggravating evidence.

Mr. Newberry testified that during his

consultation with Dr. Moore, regarding the doctor's findings,

Dr. Moore told Mr. Newberry that Petitioner is a "mean son-of-abitch."

(RT, December 11, 1998, Vol. I, p. 125).

Dr. Storms

expressed similar sentiment about Petitioner from his

evaluation.

Id.

Trial counsel determined that whatever benefit

they might receive by having Dr. Moore testify was greatly

outweighed by the detriment of the possible cross-examination by

the District Attorney and having the State present evidence from

both experts that Petitioner was "mean."

1998, Vol. I, p. 128).

(HT, December 11,

Furthermore, as trial counsel stated

that the defense theory in the sentencing phase was to portray

Petitioner as a nice, gentle, decent man, Dr. Moore's testimony

clearly contradicted that theory.

The Court in Strickland instructed, "a court must indulge a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound

trial strategy.'"

omitted)

Strickland, 466 u.S. at 689 (citations

(quoted in Bowley, 261 Ga. at 280).

The Court

stressed the importance of this deferential posture required of

a reviewing court by reiterating that in judging claims of

ineffective assistance, "counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment."

Id. at

690; accord Smith v. Francis, 253 Ga. at 783; see also Zant

v. Moon, 264 Ga. 93, 97

(3)

(1994) and Harris v. State, 280 Ga. 372

(2006) (decisions by trial counsel amounting to reasonable

trial strategy do not constitute deficient performance).

Furthermore, as trial counsel, specifically Mr. Newberry,

had dealt with mental health issues in numerous cases this

Court heeds the advice in Williams v.

Head, 185 F.3d 1223,

1228-29 (1999), "Our strong reluctance to second guess

strategic decisions is even greater where those decisions were

made by experienced criminal defense counsel."

This Court finds that Petitioner has not overcome the

presumption to show that this strategy was unreasonable and

that Petitioner was prejudiced, thus the claim is denied.

Green v. State, 281 Ga. 322, 324 (2006)

See

("Under those

circumstances, we conclude Green has not borne "the burden of

showing that 'but for the deficient performance, there was a

reasonable likelihood that the outcome of the trial would have

been different.'

[Cit.]" Riggins v. State, 279 Ga. 407, 409,

614 S.E.2d70 (2005) .").

PETITIONER IS NOT MENTALLY RETARDED THEREFORE HIS

EXECUTION IS NOT BARRED UNDER ATKINS V. VIRGINIA.

Petitioner alleges he is mentally retarded and is

ineligible for the death penalty under the holding in Atkins v.

Virginia, 536 U.S. 304

(2002).

Petitioner also alleges that

trial counsel were ineffective in not investigating or

attempting to present this claim of mental retardation.

In making its determination, this Court is bound by we1lestablished Georgia law which states that in order to establish

his substantive claim of mental retardation, Petitioner has to

prove he is mentally retarded beyond a reasonable doubt.

Jenkins v. State, 269 Ga. 292(17)

State, 264 Ga. 777, 789(36)

(1998)

(citing Burgess v.

(1994)).3

Insofar as Petitioner disagrees with the standard as enacted

by the General Assembly and upheld by the Georgia Supreme Court,

this is not the proper avenue for Petitioner to attempt to

change the current law.

In order to meet the mandates of Strickland, Petitioner had

to prove that trial counsel were deficient and he was prejudiced

by not investigating or attempting to present this claim of

mental retardation.

To establish the prejudice prong of

Strickland, Petitioner had to show there was a reasonable

probability that every juror on his jury would have found that

the evidence Petitioner presented to this Court established

beyond a reasonable doubt that Petitioner was mentally retarded.

Petitioner has failed to carry his heavy burden.

3 Petitioner now asserts that this Court should wholly ignore

Georgia law and precedent, which clearly establishes that it is

Petitioner's burden to prove mental retardation beyond a

reasonable doubt.

Petitioner attempts to have this Court adopt

a new standard lessening the burden to a preponderance of the

evidence, however as it is the duty of this Court to apply the

law as it exists this claim should be denied and this Court

should apply the standard of "beyond a reasonable doubt."

Insofar as Petitioner disagrees with the standard as enacted by

the General Assembly and upheld by the Georgia Supreme Court,

this is not the proper avenue for Petitioner to attempt to

change the current law.

The standard in Georgia and in Atkins for determining

mental retardation is as follows:

Our statutory definition of "mentally retarded" is

consistent with that supplied by the American

Psychiatric Association's Diagnostic and Statistical

Manual of Mental Disorders (Third Edition 1980)

(hereinafter DSM III). The essential features of

mental retardation are (i) significantly subaverage

general intellectual functioning, (ii) resulting in or

associated with impairments in adaptive behavior, and

(iii) manifestation of this impairment during the

developmental period. O.C.G.A .. § 17-7-131 (a) (3).

"Significantly subaverage intellectual functioning" is

generally defined as an IQ of 70 or below. DSM III,

supra at 36. However, an IQ test score of 70 or

below is'not conclusive. At best, an IQ score is only

accurate within a range of several points, and for a

variety of reasons, a particular score may be less

accurate. Moreover, persons "with IQs somewhat lower

than 70" are not diagnosed as being mentally retarded

if there "are no significant deficits or impairment in

adaptive functioning." DSM III, supra at 37.

Stripling v. State, 261 Ga. 1, 4 (1991).

(Emphasis added).

Based on this standard and the record before this Court, this

Court finds that Petitioner is not mentally retarded.

1. Experts Prior To Trial Determined Petitioner Not

Mentally Retarded

The record before this Court establishes that prior to

trial in late 1990 into early 1991, Petitioner was evaluated by

two mental health professionals, Dr. Archer Moore and Dr. Robert

Storms.

Dr. Moore was hired as an independent defense expert to

perform an overall mental heath evaluation to determine whether

there were any possible mental health defenses that could be

used by the defense for mitigation purposes.

Dr. Moore found

Petitioner to be of "borderline [intelligence] range" but

"should not be considered as mentally retarded."

11, 1998, Vol. II, RES. EX. 4).

(Emphasis added).

(HT, December

Petitioner

was also evaluated by Dr. Storms, a senior psychologist at

Central State Hospital, who was ordered by the trial court to

conduct a pretrial psychological evaluation for the purposes of

determining competency to stand trial, criminal responsibility

and recommendations for disposition.

Similar to Dr. Moore, Dr.

Storms ultimately determined that Petitioner "exhibited no signs

of mental retardation."

EX. 2).

(HT, December 11, 1998, Vol. II, RES.

(Emphasis added).

After a review of the record, this

Court finds that the two experts prior to trial determined that

Petitioner is not mentally retarded.

Petitioner's I.Q. Not Determinative of Mental

Retardation

During discovery for the habeas proceedings, Petitioner was

evaluated by three additional mental health professionals, Dr.

Marc Zimmerman, Dr. Barry Crown, Petitioner's mental health

experts, and Dr. Glen King, Respondent's mental health expert.

Petitioner's expert, Dr. Zimmerman, administered several

psychological tests to determine Petitioner's I.Q.

30, 2007, Vol. II, PET. EX. 98, pp. 549-551).

(HT, July

The results of

the WAIS-III administered by Dr. Zimmerman in 1998, yielded a

full scale I.Q. score below 70.

PET. EX. 98, p. 549).

(HT, July 30, 2007, Vol. II,

Respondent's mental health expert, Dr.

King also administered the WAIS-III, although a number of years

later, which resulted in a full scale I.Q. score below 70.

(HT,

July 30, 2007, Vol. V, RES. EX. 8, p. 1729).

There is little dispute among the numerous mental health

professionals who have evaluated Petitioner over the years that

Petitioner has low intelligence, with scores falling anywhere

from average, to borderline to subaverage intelligence.

(HT,

December 11, 1998, Vol. II, RES. EX. 2, RES. EX. 4; HT, July 30,

2007, Vol. V, RES. EX. 8; HT, July 30, 2007, Vol. II, PET. EX.

98).

However, as held by the Georgia Supreme Court, persons

"with IQs somewhat lower than 70" are not diagnosed as being

mentally retarded if there "are no significant deficits or

impairment in adaptive functioning."

Ga. at 4.

Stripling v. State, 261

This Court finds that it can not make a determination

of mental retardation solely on Petitioner's IQ score, thus this

Court looked to Petitioner to determine whether the other two

prerequisite for a diagnosis of mental retardation, which if he

does not prove exist beyond a reasonable doubt, his claim fails.

3. Petitioner Fai1ed To Estab1ish Limitations in

Adaptive Functioning.

As established in the record before this Court, Georgia law

requires that, in order to establish mental retardation, a

defendant must prove beyond a reasonable doubt that, before the

age of 18, he had impairment in two of ten adaptive functioning

categories listed in the Diagnostic and Statistical Manual of

Mental Disorders

(hereinafter, "DSM-IV-TR").

(Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition, Text

Revision, American Psychiatric Association, Fourth Edition,

2000).

This Court determined that Petitioner failed to

establish the requisite adaptive deficits or that these deficits

occurred prior to age 18, thus he has failed to support his

claim of alleged mental retardation and thus it is denied.

The record before this Court establishes that adaptive

functioning refers to how effectively individuals cope with

common life demands and how well they meet the standards of

personal independence expected of someone in their particular

age group, sociocultural background, and community setting.

(DSM-IV-TR, p. 42).

Adaptive functioning can also be influenced

by various factors,

such as, education, motivation, personality

characteristics, social and vocational opportunities, and the

mental disorders and general medical conditions that may coexist

with Mental Retardation.

Id.

It is measured by gathering

information from a variety of independent sources, including

teacher evaluation, medical history and developmental history.

It is important that the adaptive behavior be examined in the

context of the individual's own culture that may influence

opportunities, motivation and performance of adaptive skills.

(Mental Retardation, "Definition, Classification, and Systems of

Supports", American Association for Mental Retardation, 10 th

Edition, 2002, p. 75).

The evidence shows that the most recent publications of the

American Association for Mental Retardation (hereinafter,

"AAMR") also require that for the diagnosis of mental

retardation, "significant limitations in adaptive behavior

should be established through the use of standardized measures

[]."

Id. at 76.

This testing is important as it "compare[s] a

person's abilities to those of a normative sample and give[s]

you a criterion for which you make a decision about whether they

fall into a substantially impaired range or not."

(HT, July 30,

2007, Vol. I, p. 244).

The ten adaptive functioning categories that are assessed

for mental retardation evaluations are: communication, selfcare, home living, social skills, community use, self-direction,

health and safety, functional academics, leisure, and work.

Petitioner's expert, Dr. Zimmerman, found deficits in five of

the ten adaptive functioning categories: home living,

social/interpersonal skills, functional academics, selfdirection and work.

(HT, July 30, 2007, Vol. I, p. 118).

Respondent's expert, Dr. King,

found,

just as the two experts

did prior to trial, that Petitioner was not mentally retarded.

Dr. King concluded that Petitioner did not have significant

deficits in any area of adaptive functioning.

2007, Vol. V, RES. EX. 8, p. 1729).

(RT, July 30,

Dr. King testified, "bottom

line: he can take care of himself, he can get a job, he can get

his own place to live, he can feed himself, he can clothe

himself, he can maneuver around the system and take, basically,

take care of himself."

251).

(RT, July 30, 2007, Vol. I, p. 253,

Thus, this Court concludes that Petitioner does not meet

the burden of proving beyond a reasonable doubt that he has

"significant limitations in adaptive functioning," for the

diagnosis of mental retardation as defined in the DSM-IV-TR and

applied in Georgia law to diagnose someone as mentally retarded,

and therefore his claim is denied.

131 (a)

(DSM-IV-TR, O.C.G.A.

17-7-

(3)).

The record before this Court establishes that in assessing

Petitioner's adaptive functioning, Dr. King administered the

Adaptive Behavior Assessment System,

(hereinafter, "ABAS-II"),

to objectively measure Petitioner's adaptive functioning.

This

test is a structured interview broken into a number of different

domains.

(RT, July 30, 2007, Vol. I, p. 245).

In each domain

there is a series of questions that the interviewer asks the

interviewee to rate himself on a zero to three point scale.

Id.

There are also questions that are assumed to be truthful by the

interviewer as illustrated by the observation that the

interviewee actually says those names.

I, p. 246).

(HT, July 30, 2007, Vol.

The function of the test is to actually indicate

the interviewee's capacity to perform the tasks.

Id.

This Court finds that the statement by Dr. Zimmerman that a

test given to Petitioner because he is incarcerated, "can not be

considered", are wholly inaccurate as the manual for the ABASII, specifically mentions that it is appropriate for use in

prisons.

(HT, July 30, 2007, Vol. I, p. 246).

Further, one of

Petitioner's affiants, Dennis Keyes, questions the reliability

of this recognized test because of the potential "cloak of

competence," which refers to people who have mental retardation

or limited cognitive skills as portraying themselves as having

more abilities than they really have in order to look good or be

acceptable.

(HT, July 30, 2007, Vol. II, PET. EX. 95; HT, July

30, 2007, Vol. I, pp. 266-267).

This Court finds, based on the

evidence presented, that this "cloak of competence" did not

affect the reliability of the test in Petitioner's case. Dr.

King testified that, in his experience, this attempt to look one

way tends to be "done across the board with all skills; oh, they

can do everything, they can do it well, they can do it

perfectly, and so on."

(HT, July 30, 2007, Vol. I, p. 267).

However, Dr. King testified, this attempting to "look good" was

not a concern with Petitioner's results as Petitioner was

"perfectly willing on numerous occasions throughout the

assessment device to indicate the he didn't do things always and

sometimes he never did them, and he was quick to admit it."

Id.

Furthermore, Dr. King testified that when asked the questions,

Petitioner

~thought

about [the question] and varied his

responses," he did not give every question the same response of

a one or two or three, which indicated that Petitioner was

listening to the question and

~giving

the best answer he could."

(HT, July 30, 2007, Vol. I, p. 252).

The DSM IV-TR and all of the mental health professionals

involved in Petitioner's case agree that an assessment of

Petitioner's adaptive functioning is not complete by relying

solely on one report, whether that is the ABAS-II test, family

accounts, or teacher accounts alone.

testified that he would have a

Specifically, Dr. King

~concern

about relying on anyone

specific data set, including other people's memories."

July 30, 2007, Vol. I, p. 265).

(HT,

Thus this Court finds

reliability in Dr. King's assessment of Petitioner's adaptive

functioning as, in addition to the results of the ABAS-II,

results which were corroborated by the independent sources, Dr.

King reviewed several other sources, such as other history data,

medical records, school records, police records, and other

affidavit information in making his assessment as to

Petitioner's adaptive functioning.

pp. 264-265).

(HT, July 30, 2007, Vol. I,

In contrast to Dr. King's reliance on multiple sources, Dr.

Zimmerman relied, in large part, on the post-trial affidavits to

determine Petitioner's adaptive functioning.

This Court takes

notice that these affidavits were provided to each expert by

Petitioner's habeas counsel and prepared for the purposes of

Petitioner's habeas case.

Moreover, these affidavits from

family members and friends, given after Petitioner was sentenced

to death, contradict the testimony and the information these

same witnesses gave to trial counsel prior to trial.

Accordingly, this Court at least questions the reliability of

these affidavits.

No significant Deficits in Home Living

In 1990 when the crime occurred, Petitioner had been

married to his wife, Migrisus Tharpe, for more than 11 years and

had five daughters.

(T. 2038).

Dr. Zimmerman testified that

Petitioner was only able to perform any household functions

"upon direction."

Inexplicably, this finding ignores Ms.

Tharpe's testimony that Petitioner cooked, cleaned and took care

of the children.

(BT, July 30, 2007, Vol. I, p. 71; BT, July

30, 2007, Vol. I, p. 142).

While Petitioner may not have cooked

gourmet meals, Ms. Tharpe testified that Petitioner would cook

basic meals without any direction from her.

Vol. I, p. 155).

(BT, July 30, 2007,

Additionally, Petitioner also self-reported

that he knew how to operate small appliances, such as a

microwave and stove, and made simple meals.

(HT, July 30, 2007,

Vol. V, RES. EX. 8, p. 1762).

Ms. Tharpe also testified that she did not have to tell

Petitioner what chores to do and that at times she would come

home from work to find the house cleaned and clothes in the

washer.

(HT, July 30, 2007, Vol. I, pp. 142-144, 160).

Petitioner also reported that, "always when needed," he could

perform regular cleaning functions, like using a washing

machine, sweeping, taking out the trash, cleaning bathrooms,

making the bed, and making minor repairs around the house.

(HT,

July 30, 2007, Vol. V, RES. EX. 8, p. 1763).

Testimony from Petitioner's trial also revealed that

Petitioner is skilled at fixing cars.

(T.

2575; 2605).

Petitioner also picked up odd jobs around other people's houses,

like mowing the yard or painting the house, when needed.

(T.

2566) .

Petitioner's experts point to the fact that Petitioner's

wife handled most of the family finances as evidence that

Petitioner is mentally retarded.

71).

(HT, July 30, 2007, Vol. I, p.

However, as Dr. Zimmerman conceded, Petitioner could

handle some money matters, such as writing checks and delivering

payments.

Id. There is no evidence that Petitioner did not

routinely handle these matters based on an inability to perform

the function, but instead, that Petitioner's wife handling the

finances was simply a common division of marital roles.

(HT,

July 30, 2007, Vol. I, p. 110).

Further, supporting Petitioner's ability to handle money

and belying Petitioner's habeas expert's findings, Ms. Tharpe

testified that she observed Petitioner counting money, as well

as measuring and selling drugs.

159).

(HT, July 30, 2007, Vol. I, p.

She also testified that they did not really have a budget

during their marriage as they basically lived paycheck to

paycheck, however, Petitioner understood the concept of paying

the bills and would sometimes help to pay them when they were in

dire circumstances.

155).

(HT, July 30, 2007, Vol. I, pp. 147-148,

Petitioner would also go to the grocery store when needed

and knew what food to buy without anyone necessarily telling him

what to do.

(HT, July 30, 2007, Vol. I, p. 146; HT, July 30,

2007, Vol. V, RES. EX. 8, p. 1761).

Furthermore, Petitioner had a driver'S license, passing

both the written and driving portion of the driving test, and

even had his license re-instated on two separate occasions after

it was taken away.

(HT, July 30, 2007, Vol. I, p. 234).

It is reported by one of Petitioner's affiants, Patty

Baxter, that Petitioner "had a very hard time with directions."

(HT, July 30, 2007, Vol. II, PET. EX. 85, p. 329).

However, Ms.

Tharpe, Petitioner's wife, testified that Petitioner could

follow directions and rarely got lost.

(HT, July 30, 2007, Vol.

I, p. 160).

Furthermore, as exhibited by Petitioner's actions

on the day of the crime, Petitioner knew his way around Monroe

and Jones County.

(T. 2104).

Ms. Baxter also reports that Petitioner frequently walked

to his mother's house instead of taking the bus "because the bus

required two transfers and I think he got confused."

30, 2007, Vol. II, PET. EX. 85, p. 330).

(HT, July

Clearly, Ms. Baxter's

cannot testify to what Petitioner felt and her testimony in this

regard is inadmissible.

Beyond this inadmissible, opinion

testimony, Petitioner puts up no evidence that he walked instead

of taking the bus because he "got confused."

There is just as

much evidence to support the supposition that Petitioner walked

instead of taking the bus because taking the bus with two

transfers was more of a hassle, or because he did not have the

money, or possibly because he just wanted to walk.

Dr. King points out that, even though Petitioner is

incarcerated, Petitioner still has the ability to show adaptive

functioning in "home living" by how he conducts himself in

prison.

There are rules and standards which must be followed,

particularly with regard to cleaning one's cell and keeping a

made bunk.

Presumably, Petitioner is able to perform these

functions as otherwise Petitioner's Department of Corrections

record would be littered with disciplinary reports for not

following the rules.

This Court finds that Petitioner has failed to show beyond

a reasonable doubt that he has significant deficits in the area

of home living.

There may be many instances where Petitioner

does not perform a particular task, however, Petitioner has not

presented evidence that this is because he can not perform the

task.

As Dr. King testified, it is "not whether he does it all

the time, but whether he has the capacity to do it and does it

when needed."

(HT, July 30, 2007, Vol. I, p. 258).

No Significant Deficits in Social/lnte;personal Skills

Petitioner alleges that he has significant deficits in the

area of social/interpersonal skills.

However, this Court finds

that Petitioner does not present any specific evidence regarding

this allegation, thus Petitioner has not met his burden to prove

that there are deficits in this area.

Petitioner's expert, Dr. Zimmerman, alleged that Petitioner

is deficient in his communication because Petitioner's "comments

in conferences with the [trial ,court] were often largely

incoherent, and reveal deficiencies in communication skills."

(HT, July 30, 2007, Vol. II, PET. EX. 98, p. 217).

However,

when pressed on the issue, Dr. Zimmerman conceded that he was

not present at those conferences, never

spo~e

with trial counsel

about the conferences, and would expect one of the attorneys or

the Judge to notice if the comments were "incoherent."

(HT,

July 30, 2007, Vol. I, pp. 115-117).

Thus, Petitioner utterly

failed to support this allegation.

However, there is ample evidence in the record before this

Court that Petitioner is not deficient in the area of social

skills.

Petitioner, himself, reported to Dr. King, that he

interacts with other inmates to negotiate the television

programming of the television that is visible to the inmates in

his area.

(HT, July 30, 2007, Vol. I, p. 258).

Petitioner also

reported that he keeps a stable group of friends and refrains

from saying things that might embarrass or hurt others, and

apologizes if he does hurt their feelings.

(HT, July 30, 2007,

Vol. V, RES. EX. 8, p. 1766).

Petitioner's family and friends also provided numerous

examples of Petitioner's adaptive social skills.

Petitioner's

family reported that Petitioner always had friends when he was

growing up.

(T. 2559).

Some of those friends even testified on

his behalf at trial, reporting that Petitioner had a "good

heart" and was a "good friend".

(T. 2584; 2604).

They also

described how he would stop and help people whose cars were

broken down on the side of the road.

After a day of fishing,

(T.

2575; 2605).

Petitioner would sometimes take the

fish that he had caught over to an elderly friend's house.

2583) .

(T.

Further, Petitioner would sometimes take friends with

him to go fishing.

(HT, July 30, 2007, Vol. I, p. 156).

If he

was not going fishing with friends, sometimes they would just

hang around the house and play cards.

Id.

Most significantly, at the time of the crime, Petitioner

had been married to his wife for over 11 years.

They had

separated on occasion, but Petitioner's family described that

they had the "usual problems like any married couple".

2561-25£2).

(T.

Petitioner's wife described that Petitioner would

do nice things for her, like clean the house, or take her out to

dinner and the movies or to a party.

I, pp.

160-161).

(HT, July 30, 2007, Vol.

Petitioner also bought the family gifts for

Christmas and would praise the kids when they did something

good.

Id.

Petitioner has not presented evidence to meet his burden

and support his claim that he has significant deficits in the

area of social/interpersonal skills.

This Court finds the

evidence before this Court to show just the contrary.

No Significant Deficits in Functional Academics

Petitioner's experts allege that Petitioner has significant

deficits in the area of functional academics.

However,

Petitioner's experts seem to focus solely on Petitioner's school

records and his I.Q. score in coming to this conclusion.

(HT,

July 30, 2007, Vol. I, p. 65). The expert testimony reflects

that it is important to look at a variety of sources and

recognize that just because someone has low grades, it does not

necessarily follow that he has significant deficits in his

functiona1 academics. 4

Dr. Zimmerman places great import on Petitioner's class

placement in concluding that Petitioner has significant adaptive

deficits.

Petitioner's school records indicate that Petitioner

was "socially promoted" or "placed" from one grade to another on

four occasions.

(HT, July 30, 2007, Vol. II, PET. EX. 110).

These instances took place when Petitioner was in grade school

and there are no indications of "placement" during Petitioner's

high school years.

Furthermore, as there is and was no guidance about when and

why a student should be promoted, Petitioner's experts have only

speculated as to the reasons.

One of Petitioner's teachers, Jo

Bess Grenga, stated in an affidavit for Petitioner that

Petitioner was promoted to "keep him with kids his own age."

(BT, July 30, 2007, Vol. II, PET. EX. 80).

Other than Ms.

Grenga's affidavit, Petitioner does not present any evidence of

reasons behind those "social promotions."

Furthermore, Dr. Zimmerman concedes that one can not rely

on grades to determine someone's academic abilities as grades

4 Functional academics refer to reading and mathematics skills

that are used frequently in everyday life (e.g., reading signs

or instructions, counting change, or taking measurements) .

Definition of Mental Retardation, American Association of

Intellectual and Developmental Disabilities,

http://www.aaidd.org/Policies/faq mental retardation.shtml.

are not standardized among classes.

I, p.

97).

(HT, July, 30, 2007, Vol.

An "A" in one class could be the equivalent of a "B"

in another class.

Dr. King further testified that grades can be

affected by the effort put forth by the student on any given

day, as can drug and alcohol use by a student.

2007, Vol. I, p. 98, 102).

(HT, July 30,

Petitioner does not present any

evidence that these factors did not come into play and affect

Petitioner's grades.

Without clearer guidelines, one can not

rely on these things alone when assessing a student's adaptive

abilities.

This Court also notes that Petitioner's experts point to

Petitioner's participation in "fundamental" classes as evidence

that he has significant adaptive deficits in academic

functioning.

However, Eddye Mae Booth, who was a counselor for

senior boys at Northeast High School, and Fred Persley, a

science teacher at Northeast High School, recall that a class

titled "fundamental" did not necessarily mean that it was a

class for slow learners.

23; RES. EX. 24).

(HT, July 30, 2007, Vol. V, RES. EX.

Mr. Persley also indicated that students had

a choice of which classes to enroll.

V, RES. EX. 23).

(HT, July 30, 2007, Vol.

Dr. Zimmerman also conceded, "I don't know if

[fundamental] was the lowest class" that someone could be placed

and further admitted that he had no direct knowledge of how

someone came to be placed in any class which they were enrolled.

(HT, July 30, 2007, Vol. I, pp. 100-101).

This Court determined that it can not place great import on

evidence from the numerous affiants, who are not qualified to

testify about Petitioner's mental health that Petitioner was

"slow" as there is nothing in the record before this Court to

quantify the meaning of "slow."

Petitioner's mother could be

stating that Petitioner was "slow" as compared to his sister who

excelled at school and developed quickly.

The teachers who

refer to Petitioner as "slow" could be comparing Petitioner to

students of theirs who were in the highest placement classes.

Without an objective and professional understanding of the

meaning of "slow," Petitioner can not prove that this indicates

he has significant deficits in his academic functioning.

Dr. King testified that he found Petitioner's school

records to illustrate that Petitioner does not have any

deficiencies in adaptive functioning in this area.

He stated:

I think that any individual who sticks with school for

12 years and shows up, even if he was struggling, and

there's been no question about that, I think that

shows adaptive behavior. He stuck with the school

system until he completed what he needed to complete.

He also was engaged in organized sports while he was

there, so he had social interactions with other

students and faculty.

I think all of that is

indication for reasonable adaptive functioning."

(HT, Vol. 1, p. 254).

Petitioner also reported to Dr. King that he did fail

some classes, but made those up at summer school,

indicating that he followed through on what was necessary

to pass the course.

Id.

The results of the ABAS-II that Dr. King administered to

Petitioner corroborate Dr. King's finding that Petitioner does

not have significant deficits in functional academics.

For

example, Petitioner reported writing letters to pen pals, being

able to read time on a clock, giving a clerk the correct amount

of money when making a purchase, and accurately keeping score

when he is playing a game.

(HT, July 30, 2007, Vol. V, RES. EX.

8, p. 1762).

Dr. Zimmerman's findings again ignore the testimony 0 f

Petitioner's wife.

Migrisus Tharpe testified that Petitioner

has intermittently written letters and made phone calls to his

daughters while he has been incarcerated.

(HT, July 30, 2007,

Vol. I, pp. 159-160).

This Court concludes that all of these actions clearly

illustrate that Petitioner has adequate adaptive functioning in

the area of academic functioning.

No Significant Deficits in Se1f-Direction

Petitioner's experts allege that Petitioner has significant

deficits in self-direction.

This Court finds that Petitioner

has not met his burden to prove that such significant deficit

exists.

Specifically, Petitioner's supposed "reliance" on his wife

after the crime in terms of directing Petitioner where to drive

and telling Petitioner what they needed to tell the police, led

Dr.

Zimmerman to make this assumption.

I, pp. 112-113).

(HT, July 30, 2007, Vol.

However, that example is taking Petitioner's

behavior out of context.

On the morning of the crime, Petitioner planned to

intercept his wife as she drove to work.

(T. 2596).

Arguably,

Petitioner planned this meeting the night before as he told Ms.

Baxter the night prior to the murder that he was going to see

his wife the next day.

Further, Petitioner requested to borrow

the truck from Lewis Horne the night prior to the murder.

(T.

2596) .

In furtherance of his goal to intercept his wife on her way

to work, Petitioner got into the borrowed truck with a loaded

rifle, found his way to the specific road that his wife would

take on her route to work, at the exact time when she would pass

by, saw his sister-in-Iaw's car coming down the road, pulled out

in front of the car and blocked the road so that the victims

could not pass.

(T. 2051).

Contrary to Petitioner's claim of

lack of self-direction, the record and evidence clearly

establish that Petitioner knew exactly what he was doing and

what he wanted to gain during the time period surrounding the

crime.

Further, Petitioner's behavior the day of the crime, and

more generally his trying to reunite with his wife all together,

illustrate that Petitioner was able to set a goal and take the

steps to reach that goal without the necessity of someone else

directing him.

As for Petitioner's behavior after he shot and killed Ms.

Freeman, Petitioner's experts focus on the assumption that

Petitioner relied on his wife.

However, Dr. Zimmerman fails to

take into account that Petitioner's wife testified that "most of

the time, after he used, and he'll start acting, like, sort of,

to me, like a child."

(T. 2069).

As with the majority of

Petitioner's habeas experts' findings as to alleged adaptive

deficits, the experts ignore the effect of Petitioner's

substance abuse throughout his life as well as on the day of the

crime, even when specifically highlighted by Petitioner's wife.

This Court also noted when determining that Petitioner had

no significant deficits in self-direction, the evidence that

when Petitioner stopped to try and get a hotel room after the

murder, he instructed his wife that they needed to save two

dollars for gas to return to Macon, Georgia.

(T. 2070).

Dr.

King testified that this indicates that Petitioner was "planning

ahead and had some concept of money and what he'd need for a

return trip."

(HT, July 30, 2007, Vol. I, p. 256).

Dr. King

testified, "I think those are basic kinds of adaptive skills."

Id.

Petitioner's experts allege that Petitioner exhibits these

deficits because he did very little budgeting and would only pay

a bill if his wife gave him specific direction.

2007, Vol. I, p. 113).

(HT, July 30,

However, this finding ignores

Petitioner's wife's testimony, in which she testified that she

took care of the bills because "I didn't think he couldn't

handle it, I did it because I felt like if I did it, it would

get paid on time, it would get paid, because sometimes he would,

well, most of the time he was kind of careless with his money.

He used his money for what he wanted to use it for."

30, 2007, Vol. I, p. 148).

(HT, July

This Court finds that it was not

that Petitioner could not do things without direction, but that

he sometimes acted selfishly when it came to money and looked

out for his own desires.

This Court notes that this selfishness

could be described as a clear example of using self-direction as

Petitioner knew what he wanted and found ways to get it.

This Court finds other examples of adequate self-direction

are evident in the description of Petitioner's home living.

Petitioner was able to cook and clean, go to the grocery store,

take care of the children and would perform those tasks when

necessary, without direction.

(HT, July 30, 2007, Vol. I, p.

143, 155).

Petitioner also self-reports proper self-direction by

stating that he relies on himself to travel in the community on

his own, orders his own meals when eating out, carries enough

money for small purchases, walks alone to nearby locations, and

shops for friends and family who are unable to shop.

(HT, July

30, 2007, Vol. V, RES. EX. 8, p. 1761).

The trial testimony of Patti Baxter also reflects that

Petitioner was very knowledgeable about and raised litters of

dogs.

(T. 2593).

He also partook in proper leisure activities

which he was interested in, such as fishing and just "hanging

out."

(HT, July 30, 2007, Vol. V, RES. EX. 8, p. 1764).

The record reflects that Petitioner was involved in a

construction union, which required Petitioner to be actively

engaged in the hiring and selection process to obtain work.

(HT, July 30, 2007, Vol. I, p. 106).

Petitioner's wife

testified that she assumed Petitioner applied for jobs "because

he would come home and say,

here .... ' "

'I got a job, you know, working

(HT, July 30, 2007, Vol. I, p. 150).

Petitioner went

out on his own, without his wife's direction, to obtain

employment and because of the nature of his employment, he had

to apply for jobs on a frequent basis.

Id.

This Court finds that all of these examples reflect

Petitioner's ability to use self-direction to achieve his goals,

thus Petitioner has not met his burden of proving that he has

significant deficits in this area.

No Significant Deficits in Work

Petitioner's habeas mental health experts allege that

Petitioner has significant deficits in the adaptive functioning

category of work by relying in large part on Petitioner's

history of low-skilled employment and the short duration of

those jobs.

(BT, July 30, 2007, Vol. I, p. 68).

Petitioner's

experts, however, fail to take into account other factors as

explanations for this history, such as Petitioner's substance

abuse problems, as opposed to Petitioner's supposed mental

retardation.

This Court concludes that when taking these other

factors into account, it is clear that Petitioner does not

exhibit significant deficits in this area.

Dr. Zimmerman testified that Petitioner had "low skill

jobs, such as laborer, cutting grass, that sort or type of job."

(BT, July 30, 2007, Vol. i, p. 68).

Be testified that "most of

the jobs were of short duration, a few months, three or four

months or less," which Dr. Zimmerman testified is "consistent

with a person who has mild mental retardation."

Id.

It is

unquestionable that one cannot conclude that a person with this

work history is, in fact, mentally retarded.

When the Court asked Dr. Zimmerman if "everybody that cuts

grass is retarded," Dr. Zimmerman responded that "if I had an

I.Q. score of 70 or below one of the things I would look at is

the person the kind of person that somebody comes and picks them

up and they cut grass, or are they the person that's running the

business."

(HT, July 30, 2007, Vol. I, pp. 68-69).

Perhaps Dr.

Zimmerman presumes that anyone who works doing manual labor, but

does not run their own business, is mentally retarded.

Dr. Zimmerman also failed to address the other factors that

come into play to successfully acquire and maintain a job,

including education and effort.

The record clearly shows that

Petitioner does not hold any advanced degree, and has low

intellectual abilities.

This does not lead to the ultimate

conclusion that someone is mentally retarded,

just that they

have a different skill set that is necessary for his jobs.

Petitioner never reported to Dr. Zimmerman, or anyone else, that

Petitioner held the jobs that he did because he could not do

anything else.

(HT, July 30, 2007, Vol. I, p. 107).

This Court also notes that another key component when

discussing duration of Petitioner's employment is to understand

the nature of the employment.

Petitioner was employed for some

time with a construction union where the potential employee

would show up at a designated location and, based on

availability, be sent out to a work site.

(HT, July 30, 2007,

Vol. I, p. 106).

Typically, once the job was completed, the

process for being placed on a job site would be repeated.

Id.

The record reflects that a member of the union, in this case,

Petitioner, had complete control over when, or if, he would go

back to be placed on another job, thus it was up to the employee

to determine the frequency of his employment.

This Court also notes that the record establishes there

were other jobs that Petitioner held prior to his involvement

with the construction union, all of which he left for one reason

or another.

Petitioner's wife testified that

~some

of [his

jobs] he probably did quit but, you know, he got laid off or the

job would end, or different things like that, is what he would

tell me:" 5

(HT, July 30, 2007, Vol. I, p. 150).

Petitioner

reported his first gainful employment outside of the family at

the age of 15.

(HT, July 30, 2007, Vol. I, p. 235).

At the age

of 19, Petitioner began working at the mill, where he was

employed for approximately two years.

Id.

Subsequently,

Petitioner was employed at the Wilbur Vault Company for a little

over six months, doing burial work and construction of vaults.

Id.

Petitioner was also employed at LJL Truck Center as a

Petitioner's wife corrects her previous affidavit, (HT, May 28,

1998, PET. EX. 12), where it states ~sometimes he would quit

because other workers would crack jokes about him when he

couldn't keep up the pace on the job". Ms. Tharpe testified, ~I

never said that" because she had never heard that before.

(HT,

July 30, 2007, Vol. I, p. 150).

porter for an unclear amount of time, but no less than six

months.

(HT, May 28, 1998, PET. EX. 37).

This Court finds that Petitioner does not present any

evidence to show that he was fired from any of these jobs

because of his inability to perform the task at hand.

One

particular example is Petitioner's employment at LJL Truck

Center.

The records from LJL reflect that "[Petitioner] was

picked up by the police at LJL Truck Center on 2/3/88.

never called or came back to work.

held open."

Keith

His position could not be

(HT, May 28, 1998, PET. EX. 37).

Clearly,

Petitioner was not fired from that job because he was unable to

perform the job at hand.

Furthermore, notes from trial

counsel's investigation reveal that, Frank Jones, one of

Petitioner's supervisors, reported that Petitioner was "often in

rages" on the job and that he brought a gun to the place of

employment on occasion.

(HT, July 30, 2007, Vol. VI, RES. EX.

9, p. 1784).

This Court concludes that Petitioner has not presented any

evidence to support Dr. Zimmerman's assertion that Petitioner

has significant deficits in the adaptive functioning area of

work.

The record before this Court clearly shows that

Petitioner held fairly consistent employment prior to his

incarceration at age thirty two.

The Court finds that this

employment was consistent with his intellectual functioning, as

well as other factors, such as effort and his drug and alcohol

abuse, thus Petitioner has not met his burden to establish

significant deficits in this area.

4. Petitioner Failed to Establish Significantly Sub-average

Intellectual Functioning Before Age 18.

The final prerequisite for a valid diagnosis of mental

retardation is that the significantly sub-average intellectual

functioning exhibits itself before age 18.

This Court finds

that the absence of any IQ score below 70 prior to age 18 in

Petitioner's life history, Petitioner's school records and the

absence of any finding that Petitioner may be mentally retarded

prior to Dr. Zimmermann's conclusion is compelling evidence that

Petitioner does not meet the requirements for a finding of

mental retardation, thus Petitioner has not met his burden of

establishing significantly sub-average intellectual functioning

in existence prior to the age of 18.

5. Petitioner Failed To Carry His Burden as to His

Cla~ of Alleged Mental Retardation

Ultimately, this Court finds that Petitioner failed to

establish beyond a reasonable doubt that he met the required

prongs for a finding of mental retardation under Georgia law.

Whereas, intellectual testing, alone, places Petitioner in the

sub-average range of intellectual functioning as required for a

finding of mental retardation, Petitioner does not prove beyond

a reasonable doubt that the onset was prior to age 18 and that

he has significant adaptive deficits.

The definition of mental

retardation requires that the three prongs be proven in the

conjunctive, not disjunctive.

The DSM-IV-TR clearly states that

"mental retardation would not be diagnosed in an individual with

an IQ lower than 70 if there are no significant deficits or

impairments in adaptive functioning."

(DSM-IV-TR, p. 42).

Thus

a finding that Petitioner has a low intelligence score, does not

prove beyond a reasonable doubt that he is mentally retarded,

and this Court denies Petitioner relief as to this substantive

claim.

Furthermore, without proving that Petitioner is in fact

mentally retarded, Petitioner necessarily does not prove that

trial counsel were ineffective for not presenting evidence that

Petitioner was mentally retarded, and thus this claim fails.

PETITIONER HAS NOT ESTABLISHED BY ANY COMPETENT

EVIDENCE THAT PETITIONER'S VERDICT WAS THE RESULT OF

JUROR MISCONDUCT

Petitioner has submitted the testimony of several jurors to

attempt to support Petitioner's juror misconduct claims.

However, this Court finds that this testimony is inadmissible

and the claims are procedurally defaulted and not properly

before this Court for review.

Insofar as the Court reviews any

of these claims, it is clear that Petitioner has failed to carry

his burden of establishing that these claims have any basis or

merit.

Juror Testimony Including the Juror Depositions and

Affidavits Inadmissible

Petitioner has submitted testimony of Petitioner's trial

jurors to attempt to impeach the verdict in this case.

With

very limited exceptions, impeachment of a jury verdict by this

type of evidence is not allowed under Georgia law.

The

distinction between what will fall within one of the limited

exceptions to the rule prohibiting juror testimony to impeach

the verdict depends largely upon whether the alleged events in

question were

deliberations.

~internal"

~external"

to the jurors and their

Therefore, the fact that some jurors exhibited

certain prejudices, biases, misunderstandings as to the law, or

other characteristics that are not conducive to neutral and

competent fact-finding is not a basis for impeaching the jury's

verdict.

The Georgia Supreme Court has made clear that the

affidavits, such as those submitted by Petitioner to this Court,

are not admissible.

In Spencer v. State, 260 Ga. 640

(1990),

the Georgia Supreme Court held:

The general rule is that ~affidavits of jurors may be

taken to sustain but not to impeach their verdict."

O.C.G.A § 17-9-41. Exceptions are made to the rule in

cases where extrajudicial and prejudicial information

has been brought to the jury's attention improperly,

or where non-jurors have interfered with the jury's

deliberations.

See, e.g., Hall v. State, 259 Ga. 412

(3) (383 S.E. 2d 128) (1989) and cases cited therein.

Compare FRE 606 (b).

(Footnote omitted) The affidavit

here does not fit within these exceptions to the rule.

Compare Shillcutt v. Gagnon, 827 F2d 1155 (II) (7th

Cir. 1987). See also Wright & Gold, Federal Practice

and Procedure, Ch. 7, § 6074 at pp. 431-32. ("Most

authori ties agree '" that the rule precludes a juror

from testifying that issues in the case were

prejudged, a juror was motivated by irrelevant or

improper personal considerations, or racial or ethnic

prejudice played a role in jury deliberations."

(Footnotes omitted.))

Spencer, 260 Ga. at 643.