Executed July 21, 2011 08:04 p.m. by Lethal Injection in Georgia
29th murderer executed in U.S. in 2011
1263rd murderer executed in U.S. since 1976
3rd murderer executed in Georgia in 2011
51st murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Andrew Grant DeYoung
W / M / 19 - 37
|Gary Wayne DeYoung
W / M / 42
W / F / 41
W / F / 14
DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157 (Ga. 1997). (Direct Appeal)
DeYoung v. Schofield, 609 F.3d 1260 (11th Cir. 2010). (Habeas)
Pizza, breadsticks, all fruit strawberry preserves, concord grape juice and vanilla ice cream.
"I'm sorry for everyone I've hurt."
Georgia Department of CorrectionsDeYoung, Andrew Grant
CASE NO: 350635
OFFENSE: MURDER (3 COUNTS)
CONVICTION COUNTY: COBB COUNTY
CRIME COMMIT DATE: 06/14/1993
SENTENCE LENGTH: DEATH
INCARCERATION BEGIN: 10/16/1995
Georgia Department of Corrections
Georgia Department of Corrections
Brian Owens, Commissioner
Joan Heath, Director of Public Affairs
DeYoung Execution Media Advisory: Inmates Last meal
Forsyth – Condemned murderer Andrew Grant DeYoung is scheduled for execution by lethal injection at 7:00 p.m. on Wednesday, July 20, 2011, at Georgia Diagnostic and Classification Prison in Jackson. DeYoung was sentenced to death in the 1993 murders of his parents, Kathryn and Gary DeYoung and his sister, Sarah DeYoung in Cobb County.
Media witnesses for the execution are: Shannon McCaffrey, The Associated Press; Jim Burress, WABE-FM (NPR); Jon Gillooly, Marietta Daily Journal; and Rhonda Cook, The Atlanta Journal-Constitution.
DeYoung requested a last meal consisting of pizza, breadsticks, all fruit strawberry preserves, concord grape juice and vanilla ice cream.
There have been 50 men executed in Georgia since the U.S. Supreme Court reinstated the death penalty in 1973. If executed, DeYoung will be the 28th inmate put to death by lethal injection. There are presently 100 men and one woman on death row in Georgia.
The Georgia Diagnostic & Classification Prison is located 45 minutes south of Atlanta off Interstate 75. From Atlanta, take exit 201 (Ga. Hwy. 36), turn left over the bridge and go approximately ¼ mile. The entrance to the prison is on the left. Media covering the execution will be allowed into the prison’s media staging area beginning at 5:00 p.m. on Thursday.
Atlanta Journal Constitution
"DeYoung executed with videographer documenting his death," by Rhonda Cook. (10:13 p.m. July 21, 2011)
JACKSON -- With a video camera recording his last moments, Andrew Grant DeYoung was executed Thursday night at the Georgia Diagnostic and Classification Center for killing three family members. Georgia Department of Correction Andrew DeYoung was sentenced to death for killing his 41-year-old parents and 14-year-old sister in the family's northeast Cobb home in 1993. DeYoung was declared dead at 8:04 p.m., fewer than 15 minutes after the process began. Lying prone, he barely moved throughout the execution. His parting words were: "I'm sorry for everyone I've hurt."
For the first time in Georgia, a videographer was present in the execution chamber, documenting DeYoung's death and his reaction to a new three-drug lethal injection that anti-death penalty activists said caused unnecessary pain and suffering. The videographer, accompanied by a woman taking notes, stood off to the side and was barely visible to witnesses. DeYoung, however, only blinked his eyes and swallowed repeatedly, and showed no violent signs in death. He was checked by a nurse for consciousness shortly into the execution, a new procedure put in place. At 8:22 p.m., he was taken from the prison in a black Butts County Coronor van.
It is believed this was the first execution involving lethal injection that was videotaped in the nation. In 1992, a California execution was recorded on video, but the gas chamber was in use. The execution of Timothy McVeigh, the Oklahoma City bomber, was shown live over a closed-circuit broadcast from an Indiana prison to victims or family members of the deceased watching in Oklahoma City.
DeYoung was put to death for murdering his parents and his 14-year-old sister in 1993. A brother, 16, escaped the mayhem after hearing the commotion and running from the family's east Cobb County house to safety at a neighbor's home. DeYoung was captured within hours. A Kennesaw State University student and 19 at the time, DeYoung went on the killing spree apparently thinking it would enable him to receive $480,000 in inheritance for a business venture.
His federal and state appeals exhausted, DeYoung was scheduled for die by lethal injection on Wednesday night, but his execution was delayed 24 hours by the Department of Corrections in an attempt to further litigate the videotaping issue. More than three hours past the original appointed time, the Department of Corrections and Attorney General Sam Olens decided to postpone the execution. Olens said the state needed more time to address the videotaping because it was a situation new to Georgia. The Department of Corrections had the authority to stop the execution because the agency was given a week-long “window” in which DeYoung had to be executed, and it didn't run out until next Tuesday.
Hours before Thursday's execution, Fulton County Superior Court Judge Bensonetta Tipton Lane rejected the state's attempt to have the Georgia Supreme Court review her ruling that allowed the execution videotaping. Lane, overseeing the appeal of death-row inmate Gregory Walker, had ordered the recording of DeYoung’s execution after hearing claims the state’s lethal injection process caused unnecessary pain and suffering. The execution videotaping was the first in almost two decades nationally, since it was permitted in California. No other states with the death penalty currently allow it.
DeYoung’s was the second execution for Georgia in which a new anesthetic, pentobarbital, was part of the lethal three-drug cocktail. The switch to pentobarbital was necessary when sodium thiopental was no longer produced. Capital punishment opponents insisted the new anesthetic is unsafe, insisting the drug-induced comas were not deep enough to shield the condemned from the excruciating pain that comes when the other two drugs are injected, with paralytic pancuronium bromide followed by potassium chloride, which stops the heart.
DeYoung’s lawyers contended there were problems with the June 23 execution of Roy Blankenship, the first man in Georgia to die from a lethal injection using pentobarbital. Witnesses reported that Blankenship jerked his head several times early in the procedure though his movement and breathing slowed within minutes. Prison officials said those movements came before the anestietic had taken place.
Walker's attorneys asked the Fulton County judge to order DeYoung’s execution videotaped. Lane agreed but said the tape had to be immediately placed under court seal. The state Supreme Court supported that decision. Still, the state feared those images could be leaked and argued in court filings that there was a “credible risk of public distribution." They also warned of security problems if the camera operator were allowed inside the death chamber and just a few yards from DeYoung on the gurney.
"Georgia executes man for killing parents and sister," by David Beasley. (Fri Jul 22, 2011 10:25am EDT)
ATLANTA (Reuters) - Georgia executed a man on Thursday convicted of killing his parents and sister, and his lethal injection was filmed in compliance with a court order prompted by concerns about one of the drugs used. Andrew Grant DeYoung, 37, was pronounced dead at 8:04 p.m. local time, Georgia Department of Corrections spokeswoman Kristen Stancil said.
DeYoung was convicted of fatally stabbing his parents and 14-year-old sister in their suburban Atlanta home in 1993. According to court documents, he had hoped to inherit his parents' estimated $480,000 estate and start a business. "He looked like he went right to sleep," said Jon Gillooly, a Marietta Daily Journal reporter and media witness to the execution, adding that DeYoung displayed no unusual movements during the execution. His last words were "I'm sorry to anyone I ever hurt," Gillooly said.
A judge had ordered the execution filmed after lawyers for another death row inmate raised concerns about Georgia's lethal injection process, and the Georgia Supreme Court upheld the order, citing procedural errors in the state's appeal. Attorneys for death row inmates have argued that pentobarbital, one of the three drugs Georgia uses in lethal injections, causes "needless suffering."
DeYoung's execution was likely the first to be filmed in the United States since 1992, said Richard Dieter, executive director of the Death Penalty Information Center. The execution had initially been scheduled for Wednesday night, but corrections officials postponed it until Thursday.
Georgia attorneys had argued videotaping would interfere with security measures and raised concerns about the potential for sensationalism and abuse of the videotape. The judge's order required the tape be sealed. The state also took issue with the judge's decision to allow experts to be present during the execution to witness DeYoung's "physiological responses" to the drugs, saying that might conflict with state law over who witnesses executions.
Georgia first used pentobarbital, a sedative often used to euthanize animals, for the June 23 execution of Roy Blankenship. A reporter who witnessed that execution said Blankenship "jerked his head several times throughout the procedure and muttered after the pentobarbital was injected into his veins," according to court documents filed by DeYoung's attorneys.
Attorneys for the state said the execution protocol requires a nurse and warden to examine the inmate after pentobarbital is administered to make sure he is unconscious before administering the second drug, pancuronium bromide.
Dieter of the Death Penalty Information Center said videotaping the execution was a good idea. The only other instance of recording he was aware of occurred in California in 1992 as part of a challenge against the gas chamber. He could not say whether prisons film executions for their own use. "There are a lot of challenges with what's happening with lethal injections," he said. "Basically it's an experiment going on in each state." "I do think having advanced scientific record of them is certainly appropriate."
DeYoung was the 29th person executed in the United States this year. There were 46 executions in 2010. Stancil said his last meal was the regular prison fare: chicken, rice, peas, carrots, collard greens and a brownie.
Savannah Morning News
"Ga. AG seeks to halt video of execution." (Associated Press July 21, 2011 - 11:09am)
ATLANTA — The attorney general's office is seeking to halt the video recording of a Georgia execution scheduled for Thursday. State prosecutors are asking a state judge in Butts County for permission to appeal her ruling allowing the video recording to the Georgia Supreme Court. The state's top court on Wednesday had let the lower court's ruling stand, citing a procedural error by the state.
The recording was requested by another death row inmate seeking evidence of problems with Georgia's reconfigured lethal injection procedure. Andrew DeYoung was scheduled to die Wednesday night but his execution was delayed to 7 p.m. Thursday.
Experts say it would be the first known video recording of an execution since 1992.
"Man convicted in slayings executed." (Associated Press Thursday, July 21, 2011)
JACKSON, Ga. --- A Georgia man convicted of killing his parents and sister was executed Thursday after the courts allowed what experts say is the nation's first video-recorded execution in almost two decades. Andrew DeYoung, 37, received a lethal injection Thursday night at the state prison in Jackson after courts turned down his appeals. A videographer with a camera on a tripod stood about five feet away from the gurney inside the execution chamber.
When asked to make a final statement, DeYoung said he was "sorry to everyone I hurt." He declined the offer of a final prayer. Department of Corrections officials said he took a sedative pill offered to him beforehand. When the three-drug injection began, DeYoung blinked his eyes and swallowed for about two minutes, then his eyes closed and he became still. He was pronounced dead at 8:04 p.m.
The execution was set for Wednesday but was pushed back a day as the state tried to block the video recording. Lawyers for death row inmate Gregory Walker argued that recording DeYoung's execution would provide critical evidence in his appeal about the effects of pentobarbital, which is the sedative now being used as the first step in Georgia's injection procedure. Walker's attorneys want to show that pentobarbital does not adequately sedate the inmate and could cause pain and suffering.
In court filings, state prosecutors argued that having a videographer in the execution chamber would jeopardize the state's carefully scripted security. They also said creating a video came with the risk of it being distributed. Fulton County Superior Court Judge Bensonetta Tipton Lane allowed the recording to take place, and that decision was upheld by the Georgia Supreme Court on Thursday. The video will be kept under seal by the court.
Georgia Gov. Nathan Deal said it was up to the courts to decide the matter, though he told reporters Thursday he had "grave reservations" about videotaping executions. Defense lawyers countered in a motion filed Thursday that the state corrections department has long allowed cameras to film parts of the prison, although they acknowledged the state has never before allowed an execution to be recorded. "It is simply disingenuous to assert that video recording of Mr. DeYoung's execution constitutes a fundamental threat to the security of the institution," attorneys wrote in the filing.
Georgia Attorney General
Wednesday, July 6, 2011
Execution Window Set for Andrew Grant DeYoung, Convicted of 1993 Murder of His Parents and Sister
Georgia Attorney General Samuel S. Olens offers the following information in the case against Andrew Grant DeYoung, who is currently scheduled to be executed during the execution window starting at noon on July 20, 2011, and ending at noon on July 27, 2011.
On July 6, 2011, the Superior Court of Cobb County filed an order, setting the seven-day window in which the execution of Andrew Grant DeYoung may occur to begin at noon, July 20, 2011, and ending seven days later at noon on July 27, 2011. The Commissioner of the Department of Corrections has not yet set the specific date and time for the execution. DeYoung has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
DeYoung’s Crimes (1993)
The Georgia Supreme Court summarized the facts of the case as follows: During the months preceding the crime, DeYoung told his accomplice David Michael Hagerty that he wanted to start a business and hoped to find investors to finance the project. He later confided in Hagerty that he had been unsuccessful in finding financial backing, but that he had another solution. He estimated his parents’ estate to be worth $480,000, and, as Hagerty testified, “he felt that the only means to acquire the money was take his family’s life.” Subsequently, DeYoung told Hagerty that “the murders were going to have to take place,” and the two met to discuss preparations.
DeYoung formulated the plan to murder his parents and two siblings by slashing their throats, and then setting fire to the house. Several days before the planned event, DeYoung drove Hagerty to the DeYoung family’s church in Dunwoody. There they buried two containers -- a footlocker and another box -- which contained what DeYoung described to Hagerty as evidence which would incriminate him. In preparation for the murders, DeYoung and Hagerty purchased clothing and supplies, including an eleven-inch filet knife and two gasoline containers.
According to the plan, DeYoung and Hagerty traveled on foot to the DeYoung home at 2:00 a.m. on June 14, 1993. On the way, they retrieved boots, gloves and knives from a duffle bag which DeYoung had left in the woods earlier that evening. Both men were armed with knives. They approached the DeYoung home from the rear of the property where they retrieved two containers of gasoline they had left there earlier. When they reached the house, DeYoung took a handgun from his duffle bag and tucked it into his waistband. After he cut the telephone wires, he and Hagerty entered the house. DeYoung went upstairs where his parents and sister were asleep. He instructed Hagerty to go to a downstairs bedroom where his 16-year-old brother Nathan was asleep, and to cut his throat with the filet knife.
DeYoung stabbed his mother repeatedly while she was sleeping in her bedroom upstairs; her screams awakened his father. As he struggled with his father, DeYoung’s sister Sarah came to the doorway of their parents’ bedroom. DeYoung slashed his father to death, and then stabbed and killed Sarah in the hallway. Hagerty heard a commotion upstairs, and changed his mind about killing Nathan.
Nathan testified that he heard stomping and banging noises coming from upstairs, and he heard his sister cry out and call his name. Upon finding that the phone was dead, Nathan escaped through his bedroom window and ran to a neighbor’s house for assistance. Instead of setting fire to the house as they had planned, DeYoung and Hagerty searched the area for Nathan. Nathan returned with a neighbor who was armed with a gun. The neighbor noticed movement in the driveway, and observed a figure clad in black. As the neighbor was about to shoot at the man, he observed that it was Andrew DeYoung, and he called out, “Andy, what did you do?” The neighbor testified that he had no doubt the man he saw was the defendant. Nathan did not see the suspect’s face, but he testified that his “movements and his body size resembled Andy, my brother.”
DeYoung and Hagerty fled from the house in separate directions. Both had discarded their clothing, boots, and weapons along the way. They eventually met up later that morning at Hagerty’s home, where they concocted an alibi. Hagerty observed that DeYoung had injuries to his neck and forehead.
DeYoung drove back to his home at 10:30 a.m., seven hours after the murders. He told police that he had spent most of the night at Hagerty’s home, and he denied any involvement in the crimes. Authorities noted that he was calm and showed no grief over the deaths of his family members. There were scratches and abrasions present on his face, neck, hands and right arm. Hagerty was interviewed by police and gave several statements in which he admitted his participation in the crimes. He also led authorities to the clothing worn by him during the killings, and to the footlocker and box which had been concealed on the church property. These contained DeYoung’s shoulder holster and ammunition pouch and a hand-drawn map depicting the route to the DeYoung home. An arrow on the map pointed to a cul-de-sac where the house was located and was accompanied by the words “Just Do It.” Hagerty also led police to a gun that fit the holster recovered in the footlocker, and a Glock Model 81 military survival knife, which he identified as similar to the knife DeYoung used on the night of the crime. The victims’ wounds were consistent with that knife. DeYoung and Hagerty were arrested on the same day, and charged with the three murders. DeYoung v. State, 268 Ga. 780, 781-782, 493 S.E.2d 157 (1997).
The Trial (1993-1995)
DeYoung was indicted in the Superior Court of Cobb County, Georgia on September 9, 1993, for three counts of malice murder. On October 11, 1995, following a jury trial, DeYoung was convicted on all counts. The jury’s recommendation of a death sentence was returned on October 13, 1995.
The Direct Appeal (1997-1998)
The Georgia Supreme Court affirmed DeYoung’s convictions and sentences on November 24, 1997. DeYoungv. State, 268 Ga. 780, 493 S.E.2d 157 (1997). DeYoung filed a petition for writ of certiorari in the United States Supreme Court, which was denied on May 26, 1998. DeYoung v. Georgia, 523 U.S. 1141 (1998).
State Habeas Corpus Proceedings (1999-2004)
DeYoung, represented by Lisa Heller, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on February 4, 1999. DeYoung filed an amended petition for writ of habeas corpus on December 8, 2000. An evidentiary hearing was held on May 1, 2001. On June 2, 2003, the state habeas corpus court entered an order denying DeYoung state habeas relief. DeYoung’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on January 20, 2004.
Federal Habeas Corpus Proceedings (2004-2009)
DeYoung, represented by Lisa Heller, filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia on May 28, 2004. DeYoung filed amendments thereto on August 19, 2005 and March 30, 2006. On August 22, 2008, the district court denied DeYoung federal habeas corpus relief. The district court denied a motion to alter and amend judgment on January 21, 2009. The district court granted DeYoung a certificate of appealability on April 10, 2009.
11th Circuit Court of Appeals (2009-2010)
On June 4, 2009, the Eleventh Circuit denied DeYoung’s application for expansion of certificate of appealability. The case was orally argued before the Eleventh Circuit on April 21, 2010. On June 25, 2010, the Eleventh Circuit issued an opinion which denied relief. DeYoung v. Schofield, 609 F.3d 1260 (11th Cir. 2010). DeYoung filed a petition for panel rehearing, which was denied August 17, 2010.
United States Supreme Court (2011)
DeYoung filed a petition for writ of certiorari in the United States Supreme Court, which was denied March 21, 2011. DeYoung v. Schofield, 131 S.Ct. 1691 (2011) DeYoung then filed a petition for rehearing in the United States Supreme Court, which was denied on May 16, 2011. DeYoung v. Schofield, 2011 U.S. LEXIS 3587 (Case No. 10-8456).
Georgians for Alternatives to the Death Penalty
Augusta Chronicle"Profiles of inmates on Georgia's death row," by Sandy Hodson. (Monday, September 22, 1997)
Jack Edward Alderman, 45, was sentenced to death in June 1975 by a Chatham County jury for killing his wife, Barbara Jean Alderman, 27, on Sept. 21, 1974. His sentence was overturned on a federal appeal in 1980, but in April 1984, he was again sentenced to death. A co-defendant, John Arthur Brown, pleaded guilty for a life sentence and told investigators Mr. Alderman wanted to kill his wife for the insurance money. Mr. Brown was paroled in 1987. The state appeal concerning the fairness of Mr. Alderman's second trial has been pending in Mr. Alderman's case since December 1994.
Stanley Edward Allen, 42, was sentenced to death in Elbert County in July 1981. Mr. Allen and an accomplice, Woodrow Davis, 18, were convicted in the Jan. 5, 1981, break-in of the home of Susie C. Rucker, 72. Both men raped the woman, and she was strangled to death. Mr. Davis was sentenced to life in prison. Mr. Allen's death sentence was overturned by the Georgia Supreme Court in January 1982, but he was resentenced to death in October 1984. Mr. Allen had previously been sentenced to 10 years in prison for rape in 1975. Since September 1991, Mr. Allen has been awaiting a new sentencing trial on the issue of mental retardation.
James Douglas Andrews, 28, was sentenced to death on Oct. 16, 1992, in Muscogee County for rape, robbery and murder. Investigators say that on July 23, 1990, he broke into the home of Viola Hick, 78. His first appeal to the state Supreme Court hasn't been filed.
Joseph Martin Barnes, 27, was sentenced to death in Newton County in June 1993 for the robbery and shooting death of Prestiss Lamar Wells, 57, on Feb. 13, 1992. Although Mr. Barnes was sentenced to death four years ago, his first appeal hasn't been filed yet.
Norman Darnell Baxter, 45, was sentenced to death in Henry County in November 1983 for the murder of Kathryn June "June Bug" Brooks, 22. Her nude body bound feet, wrists and neck was found a week after she was reported missing in July 1980. Mr. Baxter, who spent time in state mental hospitals, had prior criminal convictions. A new sentencing trial has been pending since February 1995.
Jack Alfred Bennett, 68, was sentenced to death in Douglas County for killing his 55-year-old wife four days after they were married on June 24, 1989. As she lay sleeping, Mr. Bennett stabbed her more than 100 times and caved in the left side of her head with a claw hammer. His state appeal challenging the fairness of his trial has been pending since December 1995.
Billy Sunday Birt, 60, and Bobby Gene Gaddis, 56, were sentenced to death in Jefferson County for the Dec. 22, 1973, torture and killing of Lois and Reed Oliver Fleming, ages 72 and 75. Three other men, including the man who arranged the robbery-killings, were granted immunity. A third man, Charles Reed, was sentenced to life in prison. Four years after Mr. Birt and Mr. Gaddis were sentenced to death for killing the white couple, their sentences were overturned by a state judge reviewing the fairness of their trials. Nothing has been done since and this year the Department of Corrections moved Mr. Birt and Mr. Gaddis off death row.
Joshua Daniel Bishop, 22, was sentenced to death in Baldwin County on Feb. 13, 1996, for the robbery and beating death of Leverett Lewis Morrison, 44, who refused to turn over his jeep keys. Mr. Bishop helped beat to death another man and that evidence was used against him in his capital murder trial. His first appeal is pending.
Roy Willard Blankenship, 41, was sentenced to death in April 1980 in Chatham County for beating, raping and killing Sara Bowen, 78, for whom he had done work in the past. Ms. Bowen actually died from a heart attack brought on by trauma including being bitten, scratched and stomped. Mr. Blankenship has been sentenced to death three times, the last time in June 1986, following the reversal of his sentence. A state appeal challenging the fairness of his trial has been pending since March 1994.
Kenneth Dan Bright, 36, was sentenced to death in Muscogee County for the Oct. 30, 1989, robbery and murder of his grandparents, R.C. Mitchell, 74, and Fannie Monroe Mitchell, 69, less than eight months after being released from a mental hospital. Mr. Bright was a crack addict on parole at the time of the killings. His sentence was overturned by the state Supreme Court in March 1995. He's still awaiting retrial.
Ward Anthony Brockman, 25, was sentenced to death March 12, 1994. He and three others killed a service station attendant during an attempted robbery on June 27, 1990. Mr. Brockman, who was the triggerman, and his accomplices had pulled a number of armed robberies, and he was arrested after a chase in Phenix City, Ala. His first appeal to the state Supreme Court hasn't been filed yet.
James Willie Brown, 48, was sentenced to death in Gwinnett County in July 1981 after he had been hospitalized for nearly six years. Mr. Brown, who had a history of mental illness and convictions for an attempted rape and robbery, killed Brenda Sue Watson, 19, on May 12, 1975, after the two went out for dinner and dancing. A federal court reversed Mr. Brown's death sentence in 1988. He was sentenced to death a second time in February 1990.
Raymond Burgess, 38, was sentenced to death on Feb. 25, 1992, in Douglas County. During a robbery spree with co-defendant Norris Young. Mr. Burgess shot and killed Liston Chunn, 44, eight months after he was paroled from a life sentence for another robbery-killing. Mr. Burgess was also convicted in 1977 of armed robbery and sexual assault. Mr. Young was sentenced to life in prison. Mr. Burgess' state appeal challenging the fairness of his trial has been pending since August 1995.
David Loomis Cargill, 38, was sentenced to death in Muscogee County in July 1985 for the robbery and murder of a couple with four children under age 10. Cheryl Williams, 29, and Danny Williams, 41, were at a service station when Mr. Cargill and his brother, Tommy, robbed it the night of Jan. 22, 1985. The couple was forced to lie on the floor where David Cargill shot both twice in the head. Tommy Cargill received a life sentence. David Cargill's federal appeal challenging the fairness of his trial is pending.
Timothy Don Carr, 26, was sentenced to die in Monroe County in October 1992. He and his girlfriend were partying the night of Oct. 8, 1992, with Keith Patrick Young, 18, whom Mr. Carr stabbed numerous times, slit his throat and bashed his head with a baseball bat. Mr. Carr, who was on probation, and his girlfriend stole Mr. Young's car and $120. The girlfriend was sentenced to life in prison plus 20 years. Mr. Carr's first appeal to the state Supreme Court was denied in February. Mr. Carr's execution was set in August. Since Mr. Carr had no attorneys, a deadline to appeal to the U.S. Supreme Court passed in May. The state Supreme Court and U.S. Supreme Court rejected the Attorney General's attempt to lift the stay of execution.
Roddy Elroy Childress, 49, was sentenced to death in May 1994 in Glynn County for the shooting deaths of his half-sister's husband, Patrick Kappus, 40, and her daughter, Emma Kappus, 15, on May 1, 1989. Mr. Childress' conviction and sentence were overturned in March 1996, however, because Mrs. Kappus violated the rules of sequestration during the trial by talking to other witnesses about testimony. Mr. Childress is awaiting a new trial.
Scott Lynn Christenson, 26, was sentenced to death in Harris County in March 1990 for the robbery and murder of Albert L. Oliver III, 31. Mr. Oliver gave Mr. Christenson a ride on July 6, 1989. His body, with five gunshot wounds, was found later that day. Mr. Christenson, then 18, had a juvenile record of burglaries and thefts and adult convictions for forgery, burglary and car thefts. His state appeal challenging the fairness of his trial has been pending since October 1995.
Michael Anthony Cohen, 40, was sentenced to death in Glynn County in December 1986. Mr. Cohen, who had a history of burglary convictions, had been out of prison about a month when he started burglarizing homes again, stealing a handgun Oct. 13, 1985. The next day, Auzzie Douglas Sr., 55, a disabled man, was shot to death inside his home. His case has been sent back to Glynn County on the issue of mental retardation.
Robert Lewis Collier, 49, was convicted in Catoosa County in August 1978 for shooting to death a sheriff's investigator, Baxter Shavers, 24. Investigator Shavers was investigating a robbery call April 14, 1978, when shot. Investigator Shavers, the youngest chief deputy in state history at the time, was married with one son. Jeremy Shavers followed in his father's footsteps and now is a sheriff's deputy in Catoosa County. Mr. Collier's second federal appeal challenging the fairness of his conviction is pending in the 11th U.S. Circuit Court of Appeals.
Roger Collins, 38, was sentenced to death in Houston County on Feb. 17, 1978, for the rape and murder of Deloris Luster, 17. On Aug. 6, 1977, he and a friend offered Ms. Luster a ride. The teen was raped, then Mr. Collins killed her with a car jack. William Durham was sentenced to life in prison. Mr. Collins' case was returned to the Houston County trial court in March 1991 on the issue of mental retardation.
Robert Dale Conklin, 36, was sentenced to death in June 1984 in Fulton County. Mr. Conklin was having an affair with attorney George Grant Crooks, 27, when the two got into an argument on March 28, 1984, and Mr. Conklin stabbed the other man in the ear with a screw driver. Mr. Conklin said he panicked afterward because he was on parole at the time. So he drained the blood from Mr. Crook's body and cut it up into nine pieces. Mr. Conklin's appeal is pending in federal court.
John Wayne Conner, 40, was sentenced to death in July 1982 in Telfair County. Six months before, Mr. Conner was drinking with his friend, James T. White, 29, when he became enraged and started beating Mr. White with his fist, a whiskey bottle and a stick. In the most recent appeal action, Mr. Conner's state appeal challenging the fairness of his trial was denied in December. That decision is being appealed to the state Supreme Court.
Eddie A. Crawford, 50, was sentenced to death in Spalding County in March 1984 for the kidnapping, rape and murder of his 29-month old niece, Leslie Michelle English, on Sept. 25, 1983. The toddler was strangled to death, bruised and raped. He told police he remembered the toddler had been in his car and remembered carrying her out of the car. He was sentenced to death twice. He was on probation when he killed the girl.
Samuel David Crowe, 36, was sentenced to death in Douglas County in November 1989. The former church deacon was convicted of the robbery and murder of his former boss, Joe Pala, 39. Mr. Pala was knocked to the floor of Wickes Lumber Co., shot, hit with a paint can and crowbar, and covered in paint the night of March 2, 1988. Mr. Crowe had no criminal record before the killing. His first appeal to the state Supreme Court was denied in June 1995, and the U.S. Supreme Court rejected hearing the case on appeal in March 1996.
George Bernard Davis Jr., 39, was sentenced to death in Elbert County in February 1985. He was convicted of robbing and shooting to death Richard L. Rice, 63. The garage owner was found dead in his tow truck Feb. 13, 1984. His wallet had been stolen along with more than $800. Mr. Davis had argued with Mr. Rice over payments for car repairs. Davis, who had no major felony convictions before the killing, has been awaiting a trial court decision on the issue of mental retardation since April 1990.
Troy Anthony Davis, 28, was sentenced to death in Chatham County in September 1991 for killing an off-duty police officer, Mark Allen MacPhail, 27. Officer MacPhail was trying to break up a fight between Mr. Davis and another man when Mr. Davis shot him. He was wearing a bullet-proof vest, but as Mr. Davis stood over the officer and shot him again, the bullet pierced his side. Mr. Davis' state appeal challenging the fairness of his trial has been pending since March 1994.
Andrew Grant DeYoung, 22, was sentenced to die in October 1995 in Cobb County. He and a friend, David Michael Haggerty, 28, stabbed to death his parents and little sister Gary Wayne, 42, Kathryn, 41, and Sarah, 14, on July 15, 1993. Mr. DeYoung had no prior criminal record. Mr. Haggerty was sentenced to life in prison in July 1996. An appeal hasn't been filed yet for Mr. DeYoung.
Wilbur Wiley Dobbs, 48, was sentenced to death in Walker County in May 1974 for the shotgun slaying of Roy L. Sizemore, 50. The grocery store owner was killed Dec. 14, 1973, when Mr. Dobbs and two others robbed the store. A salesman visiting the store was also shot but survived, as did a female customer who suffered a skull fracture after she was hit with a gun butt. Mr. Dobbs' co-defendants were sentenced to life in prison. In May, a federal judge ordered a new sentencing hearing for Mr. Dobbs, ruling his trial attorney was ineffective.
Leonard Maurice Drane, 37, was sentenced to death in Elbert County in September 1992 for killing Linda Renee Blackmon, 27, on June 13, 1990, while he was on probation for other crimes. The trial was moved from Spalding County to Elbert County. She had been raped and shot. Her throat was cut. Co-defendant David Robert Willis was sentenced to life in prison. Three years ago, the state Supreme Court sent Mr. Drane's case back to the trial court for a ruling on appeal issues.
Eric Lynn Ferrell, 34, was sentenced to death in September 1988 in DeKalb County for the robbery and murder of his 72-year-old grandmother and 15-year-old cousin. The bodies were found Dec. 30, 1987. Both had been shot twice in the head at close range. Mr. Ferrell was on probation at the time. At the time of his grandmother's and cousin's killings, two of his uncles had killed a man and police initially thought the double homicide was revenge for that homicide. When arrested, police found four spent .22-caliber casings in Mr. Ferrell's pockets, along with $600. The murder weapon was later found at his home. A state appeal challenging the fairness of his trial and sentence has been pending since July 1995.
Eddie William Finney Jr., 40, was sentenced to death in Jones County in November 1977 about three months after the bodies of Thelma Kalish, 69, and Ann Kaplan, 60, were found in their home. On Sept. 22, 1977, the women were robbed, raped and beaten to death. Mr. Finney and Johnny Mack Westbrook, who had both done yard work for the women, were convicted and sentenced to death. The Georgia Supreme Court reversed Mr. Westbrook's death sentence because the judge sent the jury back into the deliberation room when it first voted for life. Mr. Westbrook died of heart disease in prison in 1993. Mr. Finney's case was returned to the trial court in April 1991 for a decision on the issue of mental retardation.
Son Fleming, 66, was sentenced to death in January 1978 in Lanier County for the murder of Ray City Police Chief Ed Giddens, 29. The officer stopped a speeding car in February 1976, not knowing the men inside had just pulled an armed robbery. It was Chief Giddens' last day on the job he had intended to move to Florida. Mr. Fleming's brother was sentenced to life in prison. Henry Willis III, 36, was sentenced to death, too, and he was executed May 18, 1989. Mr. Fleming was the test case for the 1988 mental retardation exception for the death penalty. He was returned to Lanier County in March 1991 for a new sentencing trial.
Melbert Ray Ford Jr., 36, was sentenced to death in Newton County in October 1986. Seven months before, Mr. Ford shot to death his former girlfriend, Martha Chapman Matich, 31, and her 11-year-old niece, Lisa Renee Chapman. Although prosecutors contended Mr. Ford killed the woman and child in revenge for a romantic breakup, Mr. Ford also robbed the store where Ms. Matich was working that night. His attorneys are currently appealing the denial of his first appeal challenging the fairness of his trial and sentence.
Timothy Tyrone Foster, 29, was sentenced to death in Floyd County in May 1987. Mr. Foster confessed that on the night of Aug. 27, 1986, he broke into the home of Queen Madge White, 79. Her jaw was broken, she had gashes on the top of her head and she had been sexually assaulted and strangled. Mr. Foster had a juvenile record including armed robbery. In July 1991, his case was sent back to the trial court on the issue of mental retardation.
Wallace Marvin Fugate III, 47, was sentenced to death in Putnam County in April 1992 for killing his estranged wife, Pattie Fugate, 40. On May 4, 1991, he broke into his wife's home and waited for her. When she came in, he grabbed Ms. Fugate and dragged her outside to his vehicle, pistol whipped her about 50 times and then shot her in the forehead. Their son, who witnessed the killing and testified against his father, was the victim of a homicide the next year. One of the men who beat his son to death is now on Death Row too. Mr. Fugate's attorney has appealed the denial of his first appeal, challenging the fairness of his trial and sentence in October 1996.
Kenneth E. Fults, 28, was sentenced to death in May in Spalding County for killing a neighbor, 19-year-old Cathy Bonds, after breaking into her home on Jan. 30, 1996. Mr. Fults smothered her with a pillow and then shot her before stealing her car. Mr. Fults had a history of mental illness but no prior felony convictions. A direct appeal hasn't been filed yet.
Carlton Gary, 46, was sentenced to death in Muscogee County in August 1986. Between Sept. 11, 1977, and April 19, 1978, eight elderly women in Columbus were raped and strangled in their homes. One survived. In 1984, a gun stolen in the same neighborhood as the killing spree was found in Michigan in the possession of Mr. Gary's cousin. Mr. Gary's fingerprints were then matched to some left in the homes of four of the homicide victims. He was convicted of murdering three women. Mr. Gary had been accused of the rape and murder of an 89-year-old New York woman in 1970 and an additional rape, but he blamed another man who was tried and acquitted. Mr. Gary's second state appeal challenging the fairness of his trial and sentence was denied in December 1995. On May 27, the U.S. Supreme Court rejected an appeal on the same grounds.
Johnny Lee Gates, 41, was sentenced to death in Muscogee County in September 1977. On Nov. 30, 1976, Mr. Gates posed as a gas company employee to get into the home of 19-year-old Katharina Wright, whom he robbed, raped and then shot in the head. Mr. Gates was on parole at the time. He was arrested on unrelated charges Jan. 31, 1977, and confessed. Between Mrs. Wright's killing and his arrest, Mr. Gates also committed two other armed robberies and voluntary manslaughter. In 1992, Mr. Gates' case was sent back to Muscogee County for a new sentencing trial on the question of mental retardation.
Exzavious Lee Gibson, 25, was sentenced to death in Dodge County in June 1990. He was convicted of robbing and stabbing to death 46-year-old Douglas Coley at the Eastman convenience store where Mr. Coley was working Feb. 2, 1990. Mr. Gibson, who was covered in Mr. Coley's blood when arrested shortly after the robbery-slaying, was convicted four months later. This year, Augusta Judicial District Superior Court Judge J. Carlisle Overstreet denied Mr. Gibson's state appeal challenging the fairness of his trial, although Mr. Gibson had no legal counsel.
Fred Marion Gilreath Jr., 59, was sentenced to death in Cobb County in March 1980 for the killing of his estranged wife and her father. On May 11, 1979, Linda Gilreath, 28, and Gerrit W. VanLeevwen, 57, were shot to death she had been shot five times with a rifle, and then shot in the face at close range with a 12-gauge shotgun, he was shot with a rifle, shotgun and handgun. Mr. Gilreath's federal appeal challenging the fairness of his trial was denied in April 1996.
Daniel Greene, 30, was sentenced to death in December 1992 in Clayton County where the venue was changed from Taylor County. He committed a violent crime spree the night of Sept. 27, 1991, when he walked into a Reynolds convenience store and pulled a clerk into the back room, demanded money and stabbed her. He then stabbed customer Bernard Walker, 20, in the heart, killing him. A short time later, he forced his way into the home of an elderly couple he knew and stabbed both and stole their car. He then went to a convenience store in Warner Robins where he robbed and stabbed the clerk. In May, the state Supreme Court let the conviction and sentence stand.
Dennis Charles Hall, 41, was sentenced to death in August 1990 in Barrow County for the shotgun killing of his 10-year-old son, Adrian Hall. Police had been called to the Hall home numerous times before Jan. 7, 1990, when they found a drunken Hall and the dead child. His wife and two daughters told police Mr. Hall became enraged at Adrian for being noisy. The girls tried to hide Mr. Hall's gun, but he found it and shot the boy. He told a neighbor afterward, " I couldn't learn him nothing by beating him with a belt. So I guess I learned him something this time." His state appeal challenging the fairness of his trial has been pending since December 1995.
Willie James "Bo" Hall, 40, was sentenced to death in DeKalb County in February 1989 for killing his estranged wife, Thelma Hall, 23, who moved out of the family home just six days before her murder. On July 11, 1988, Ms. Hall made a frantic call to 911, and the dispatcher heard the sound of breaking glass and screams. Police arrived in minutes but, Mr. Hall had stabbed her 17 times. The day before, Mr. Hall told his sister-in-law that he would kill his wife and wouldn't get more than 10 years in prison for it. His state appeal was denied.
Emanuel Fitzgerald "Demon" Hammond, 30, was sentenced to die in Fulton County in March 1990 for the kidnapping, robbery, rape and murder of 27-year-old Julie Love. She was last seen by her boyfriend the night of July 11-12, 1988, when she left his apartment for home. A year later, in August 1989, Janice Weldon filed assault charges against Mr. Hammond after he tried to strangle her. Ms. Weldon told police that he and his cousin Maurice Porter killed Ms. Love. Mr. Porter confessed and took police to Ms. Love's remains near a trash pile. Ms. Love was kidnapped at gunpoint, Mr. Porter told police. Ms. Love was raped by Mr. Porter and beaten. Then the men tried to strangle her by wrapping a coat hanger around her neck and pulling the opposite ends. When that didn't work, Mr. Hammond shot her. Mr. Hammond had carjacked three other women stabbing one and leaving her to die on a trash pile, and he also broke into a woman's home and raped her. As a juvenile, he raped, robbed and kidnapped a woman and slit her throat, and he raped and sodomized another. While awaiting trial, he bragged to a deputy that he also had raped Ms. Love. His state appeal challenging the fairness of his trial was filed in December 1995.
George Russell Henry, 28, was sentenced to death in Cobb County in November 1994 for shooting to death a police officer. Officer Robert Ingram, a two-year police veteran, was shot in the face and behind his left ear while he was investigating a report of a suspicious person. Mr. Henry had previously been convicted of burglaries and forgery and was on probation at the time of the murder. His first appeal to the state Supreme Court hasn't been filed yet.
Robert Karl Hicks, 40, was sentenced to death in January 1986 in Spalding County for the kidnapping, rape and murder of 28-year-old Toni Strickland Rivers. On July 13, 1985, Ms. Rivers was waiting for a friend at a public park when she disappeared. That night, two men driving down a country road heard a scream and saw a man making stabbing motions. Ms. Rivers bled to death. Mr. Hicks had previously been convicted of rape. At his trial, doctors testified yes and no that Mr. Hicks was mentally ill. The denial of his state appeal challenging the fairness of his trial was upheld by the state Supreme Court in November 1995.
Jose Martinez High, 38, was sentenced to death in December 1978 in Tallaferro County for the kidnap and murder of 11-year-old Bonnie Bulloch who was kidnapped along with his father in July 1976. Judson Ruffin and Nathan Brown also were convicted and sentenced to death for Bonnie's murder, but their cases were reversed on appeal. They were resentenced to life in prison. A fourth man with the gang when Bonnie and his father were kidnapped and shot, Alphonso Morgan, was convicted and sentenced to die in Richmond County for another abduction and murder in the gang's crime spree. His sentence, however, also was overturned and he's now serving a life sentence. A second federal appeal challenging the fairness of Mr. High's trial is pending.
John W. Hightower, 53, was sentenced to death in Morgan County in May 1988 for killing his wife and two stepdaughters. Mr. Hightower's trial was moved from Baldwin County, where on July 12, 1987, the bodies of Dorothy Hightower, 42, Sandra Reaves, 22, and Evelyn Reaves, 19, were found at their home. Each had been shot. Mr. Hightower was arrested hours later in his wife's car, a bloody handgun inside. He bought the murder weapon the day before the slayings. A federal appeal challenging the fairness of his trial has been pending since November.
Floyd Ernest Hill, 60, was sentenced to death in July 1981 in Cobb County for shooting to death Austell Police Officer Gregory Mullinax. On Feb. 8, 1981, Officer Mullinax was sent to a trailer park on a domestic disturbance call. Officer Mullinax became the target of the battling couple when Mr. Hill got into the fray and shot the officer, and the officer shot and killed another person in the fight. Mr. Hill's death sentence was overturned on federal appeal in December.
Warren Lee Hill, 36, was sentenced to death in September 1991 in Lee County for beating to death fellow inmate Joseph Handspike, 34, with a nail-embedded board on Aug. 17, 1990. At the time, Mr. Hill was serving time for a 1985 murder. Mr. Hill's state appeal challenging the fairness of his trial has been pending since April 1994.
Travis Clinton Hittson, 26, was sentenced to death in Houston County in March 1993 for killing 20-year-old Conway U. Herbeck, a fellow sailor. On April 3, 1993, Mr. Hittson, Edward Vollmer and the victim left Pensacola, Fla., where they were stationed, and drove to Mr. Vollmer's parent's home in Warner Robins. Mr. Vollmer wanted to kill Mr. Herbeck and gave Mr. Hittson a baseball bat to use on April 5, 1992. Mr. Hittson hit the victim in the head several times with the bat and then shot him. They cut up Mr. Herbeck's body, buried the torso in Houston County and the rest in Pensacola. Mr. Vollmer was sentenced to life in prison. Mr. Hittson had never been convicted of a felony before the killing. A state appeal challenging the fairness of his trial has been pending since December 1995.
Dallas Bernard Holiday, 34, was sentenced to death in November 1986 in Jefferson County for killing 66-year-old Leon Johnson Williams on March 11, 1986. Mr. Williams went on his usual early morning walk when Mr. Holiday attacked him, hitting him in the head at least seven times and shooting him. Mr. Holiday had broken into a home the night before and stolen the murder weapon. Mr. Holiday had prior felony convictions. His case was returned to the trial court on the issue of mental retardation in June 1990.
Robert Wayne Holsey, 31, was sentenced to death on Feb. 13, 1997, in Morgan County where his trial was moved. In December 1995, he shot to death Baldwin County Sheriff's Deputy Will Robinson, 26. The officer had stopped Mr. Holsey's vehicle after an armed robbery. At the time, Mr. Holsey had been out on parole less than a year following convictions for assault and armed robbery.
Tracy Lee Housel, 38, was sentenced to death in February 1986 in Gwinnett County for the rape and murder of 46-year-old Jean D. Drew. Ms. Drew was in the habit of stopping at a truck stop for a snack after her ballroom dancing lessons. On the night of April 7, 1985, she met Mr. Housel at the restaurant. Her body was found the next day, and he was arrested about a week later in Daytona Beach, Fla., after using her credit cards. He confessed to killing Ms. Drew, killing a man in Texas, and trying to kill two others in Illinois and Texas. He also confessed to murders in California and Tennessee. A decision is pending from the 11th Circuit Court of Appeals on Mr. Housel's federal appeal challenging the fairness of his trial.
Carl J. Isaacs, 43, was sentenced to death in Seminole County in 1974 and again in Houston County at a retrial in 1988. In May 1973 when he was 19 years old, he escaped from a Maryland prison and took off for Florida with his brother Billy, half brother Wayne Coleman and friend George Dungee. On May 14, 1973, they ran out of gas in Seminole County and stopped to burglarize a trailer. Within hours, they had shot to death Jerry Alday, Ned Alday, Jimmy Alday, Chester Alday and Aubrey Alday in addition to raping Mary Alday and then killing her. They were arrested in West Virginia with the murder weapons and items belonging to the Alday family. Billy Isaacs, 15 years old at the time of the killings, received a 40-year sentence. He was taken to Maryland in 1993 to serve a life sentence there for murder. At the 1988 retrial, Mr. Coleman and Mr. Dungee received life sentences.
Jonathen Jarrells, 40, was sentenced to death in March 1988 in Walker County for the robbery and murder of Gertie E. Elrod, a 77-year-old woman. On Aug. 24, 1987, Ms. Elrod and her sister, Lorraine Elrod, were attacked in their home by Mr. Jarrells. He stabbed both with scissors, tied their hands and feet and beat them with an iron. Lorriane survived the attack although she lost the sight in one eye and her hearing in one ear. When arrested in Hazard, Ky., he had items belonging to the Elrod sisters in his possession. In May 1991, Mr. Jarrell's case was sent back to the trial court on the issue of mental retardation.
Lawrence Joseph Jefferson, 42, was sentenced to death in March 1986 in Cobb County for the robbery and killing of his construction job supervisor Edward Taulbee, 37. On May 1, 1985, they went fishing at Lake Allatoona. Later, Mr. Jefferson arrived home in the victim's vehicle and told a neighbor, "My fat little buddy is dead." Mr. Taulbee's body was found the next day; he had been beaten with a stick and then his skull was crushed with a 40-pound tree trunk. In 1979, Mr. Jefferson had pleaded guilty in Louisville to armed robbery and burglary. His first appeal to the state Supreme Court and next state appeal challenging the fairness of his trial have been denied.
Larry L. Jenkins Jr., 21, was sentenced to death in Wayne County for the robbery and killing of the owner of a laundry and her 15-year-old son. Mr. Jenkins accosted Terry Ralston, 37, and her son Michael on Jan. 8, 1993. He kidnapped the mother and son and shot them both to death in a rural area. Although sentenced to death in September 1995, his first appeal to the Georgia Supreme Court hasn't been filed yet.
Ashley Lyndol Jones, 23, was sentenced to death in June 1995 in Coffee County. On March 31, 1993, in Ware County, Mr. Jones and co-defendant Allen Brunner were drinking and driving in a stolen vehicle when it developed car trouble. Mr. Jones knocked on the door at Carlton Keith Holland's home and asked for help. As Mr. Holland, 39, leaned over the engine and his wife watched through the window, Mr. Jones slammed a wrench and later a sledgehammer on Mr. Holland's head. Mr. Brunner was sentenced to life without parole. In March, the state Supreme Court affirmed Mr. Jones' conviction and death sentence.
Brandon Aston Jones, 54, was sentenced to death in October 1979 in Cobb County. On June 17, 1979, he and Van Roosevelt Solomon were arrested at a service station after an officer who just happened to drive up heard gunshots. In the storeroom, the officer found 29-year-old Roger Tackett, the station manager, who had been shot in the legs and arms and beaten before the fatal contact shot was fired behind his left ear. Mr. Solomon also was sentenced to death and he was executed on Feb. 20, 1985. In 1989, a U.S. District Court judge reversed Mr. Jones' sentence, ruling it was unfairly imposed considering the prosecutor's Bible quoting. Mr. Jones is still awaiting a new sentencing trial. In September 1996, the Department of Corrections transferred him off death row and into the general prison population.
Ronald Leroy Kinsman, 39, was sentenced to death April 18, 1987, in Muscogee County for the robbery and murder of a Hardee's manager. Bruce Keeter, 29, was found shot to death the morning of Sept. 14, 1984. About $400 was stolen from the restaurant safe, and Mr. Keeter's car was later found abandoned. Two years later, a friend of Mr. Kinsman's told police Mr. Kinsman had admitted to the murder. In 1976, Mr. Kinsman had been convicted of another robbery-murder and was paroled not long before Mr. Keeter was murdered. A state appeal challenging the fairness of his trial has been pending since December 1995.
J.W. Ledford Jr., 25, was sentenced to death in Murry County with a jury selected from Gordon County in November 1992 for the murder of a neighbor he had known all his life, Dr. Harry Johnston Jr., 73. On Jan. 31, 1992, Mr. Ledford went to the Johnston home and asked his wife, Antoinette, to speak to Mr. Johnston. He forced his way into the home at knife point, demanding money and guns. Mr. Johnston's body was found later, his head nearly cut off and a knife in his back. Mr. Ledford's state appeal challenging the fairness of his trial has been pending since December 1995.
James Allyson Lee, 22, was sentenced to death in June by a Charlton County Superior Court jury. On Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore Chancey, to death. Although Mr. Lee pleaded with the jury to spare him because he wasn't the same man who committed murder, when first questioned by police, Mr. Lee said killing was so easy it would be easy to do again.
Larry Lee, 36, was sentenced to death in November 1987 in Wayne County for the robbery and killing of a couple and their 14-year-old son. Clifford and Nina Murray Jones Sr., both 48, and Clifford Jones Jr. were killed April 26, 1988 all had been shot, stabbed and beaten. Mr. Lee's brother Bruce Lee was reportedly also involved in the triple homicide, but he died while committing a burglary two months after the Jones family killings. Mr. Lee's state appeal challenging the fairness of his trial was denied, but the judge was ordered to reconsider it in June 1995 because of new case law.
William Anthony Lipham, 33, was sentenced to death in Coweta County in February 1987 for the rape, robbery, burglary and murder of a 79-year-old woman, Kate Furlow. Mr. Lipham was seen in Ms. Furlow's home on Dec. 4, 1985. The next day, her nude body was found at home with a .25-caliber bullet wound in her head. Mr. Lipham confessed but said he had sex with the elderly woman after she was dead. A state appeal challenging the fairness of his trial has been pending since 1989.
William Earl Lynd, 42, was sentenced to death in February 1990 for killing his girlfriend three days before Christmas 1988. Mr. Lynd was living with 27-year-old Virginia "Ginger" Moore when they got into an argument and he shot her in the face and went outside. Ms. Moore followed him outside where he shot her again and put her in the trunk of his car. When he heard noise from the trunk, he stopped the car and shot her a third time. After burying her body, Mr. Lynd drove to Ohio where he shot and killed another woman. He returned to Georgia and surrendered to police on New Year's Eve. Mr. Lynd had numerous convictions for prior assaults on women. His state appeal challenging the fairness of his trial has been pending since December 1995.
James Mathis, 51, was sentenced to death in Douglas County in May 1991 for killing J.L. Washington and his wife Ruby Washington, both 69. On Thanksgiving Day 1980, Mr. Mathis was seen in the back seat of the Washington's vehicle as they drove through their apartment complex. Their bodies were found in a wooded area. Both had been beaten, stabbed and shot. In 1989, a U.S. District judge reversed Mr. Mathis' death sentence because of ineffective counsel, but in 1992 the 11th Circuit sent the case back to the federal judge to explain the ruling.
Mark Howard McClain, 30, was sentenced to death in Richmond County in September 1995 for the robbery and murder of a Domino's Pizza store manager. In November 1994, Mr. McClain, who had previously been convicted of armed robbery, forced his way into the closed Domino's store and robbed Kevin Brown, 28. As Mr. McClain turned to leave he shot and killed Mr. Brown, an eyewitness testified. The witness got the license tag number off the getaway car and police traced the vehicle to Mr. McClain's girlfriend. Earlier this year, the state Supreme Court affirmed Mr. McClain's conviction and sentence, and in June, the U.S. Supreme Court refused to consider an appeal of that decision.
James R. McDaniel, 23, was sentenced to death in June by a Butts County Superior Court jury. He was convicted of murdering his grandparents Erner and Eugene Barkley, ages 70 and 75, and his 10-year-old stepbrother, Justin Davis. Family members of the victims, also Mr. McDaniel's family, opposed the death penalty for the young man with a history of commitments to mental hospitals and crack addition. Police said Mr. McDaniel robbed his grandfather to buy crack.
Kim Anthony McMichen, 39, was sentenced to death in Douglas County in July 1993 for the shooting deaths of his estranged wife and her boyfriend. On Nov. 16, 1990, he shot Luan McMichen, 27, and Jeff Robinson, 27, and then walked his 8-year-old daughter past the bodies. Ms. McMichen's friends told police he had harassed her since she left him in January 1990 and that he had raped her. Mr. McMichen had no prior criminal convictions. His first appeal to the Georgia Supreme Court hasn't been filed.
Jimmy Fletcher Meders, 36, was sentenced to death in April 1989 in Glynn County for the robbery and murder of a convenience store clerk. Don Anderson, 47, was shot twice as he lay on the floor after being robbed of $38 the night of Oct. 14, 1987. Police say two men with Mr. Meders weren't involved in the killing and they weren't prosecuted. Mr. Meders' current attorneys claims just the opposite that the other two men did the robbery and killing while a drunken Mr. Meders was in the back of the store. All three men had prior felony convictions. Mr. Meders state appeal challenging the fairness of his trial has been pending since April 1993.
Michael Miller, 34, was sentenced to death in November 1988 in Walton County for the robbery and killing of 35-year-old Larry Judson Sneed. On Oct. 29, 1987, Mr. Sneed was driving along a Walton County road when shots were fired at his vehicle and he was forced off the road. Mr. Sneed got out and ran but he was shot in the back and bled to death. Two days before, Mr. Miller and another man had kidnapped a man during a burglary. In January 1995 his case was sent back to the trial court on the issue of mental retardation.
Terry Mincey, 37, was sentenced to death in August 1982 in Bibb County for the robbery and killing of a store clerk, the mother of two small children. On April 12, 1982, Paulette Riggs was working at a convenience store when Mr. Mincey and two others decided to rob it. After making Ms. Riggs hand over the money, he walked her outside where Russell Peterman was pumping gas into his car. Mr. Mincey shot Mr. Peterman in the chest and when he fell, Mr. Mincey shot him again in the face. Ms. Riggs tried to run away, but Mr. Mincey shot her and after she fell, he shot her in the face. Mr. Peterman survived but lost 40 percent of his vision in one eye and lives with a bullet lodged near his spine. Mr. Mincey, a preacher's son, had at least three prior armed robbed convictions in 1977. His two co-defendants in the 1989 killing received life sentences. In September 1996, his federal appeal challenging the fairness of his trial was filed.
Nelson Earl Mitchell, 34, was sentenced to death in January 1990 in Early County for killing Iron City Police Chief Robert Cunningham, 51, during a routine traffic stop. Mr. Mitchell, who had prior convictions for larceny and theft, testified that the white police chief used racial slurs and the gun went off during a struggle. One issue the defense may raise on appeal is an allegation that the jury foreman's husband was sitting in the courtroom and allegedly signaled his wife to vote for death by drawing his finger across his throat. Although it's been more than seven years since his conviction, the first appeal to the Georgia Supreme Court hasn't been filed.
William Mark Mize, 40, was sentenced to death in Oconee County in December 1995 after demanding the jury sentence him to death. The Klansman ordered the killing of William Eddie Tucker, 34, because he was angry Mr. Tucker had messed up an arson job on a crack house in October 1994. Mr. Mize had prior convictions for escape, theft, arson, and being a felon in possession of a firearm. Co-defendants Christopher Hattrup and Mark Allen received life sentences.
Stephen Anthony Mobley, 31, was sentenced to death in Hall County in February 1994. During a Feb. 17, 1991, robbery of a Domino's store, he shot and killed 24-year-old John Copeland Collins. Mr. Mobley had been convicted of burglary and forgery, but he didn't get into violent crimes until 1991 when he began a robbery spree that ended in Mr. Collins' death. While awaiting trial, Mr. Mobley raped his cellmate and had Domino's tattooed on his chest. His state appeal challenging the fairness of his trial has been pending since March 1996.
Larry Eugene Moon, 52, was sentenced to death in Catoosa County in January 1988 for killing 34-year-old Ricky Callahan who had driven to a convenience store to buy his wife some aspirin on Nov. 24, 1984. At the time Mr. Callahan was murdered, Mr. Moon was hiding out in Georgia after committing a Tennessee murder. After killing Mr. Callahan, Mr. Moon drove back to Chattanooga and on Dec. 1, 1984, he robbed an adult book store and kidnapped a female impersonator whom he raped. The next day, he killed another man in Gatlinburg, Tenn., and shot at a woman; then on Dec. 7, 1984 he robbed a Chattanooga convenience store. He was arrested Dec. 14, 1984 in Oneida, Tenn., in another stolen car containing a number of guns, including Mr. Callahan's murder weapon. Mr. Moon's prior record included seven burglaries, three aggravated assaults and escape. Mr. Moon's federal appeal challenging the fairness of his trial was filed in April 1996.
Carzell Moore, 45, was sentenced to death in January 1977 in Monroe County for the Dec. 12, 1976 rape, robbery and murder of 18-year-old Teresa Carol Allen, an honors college student. Mr. Moore met up with Roosevelt Greene the day before the killing. Mr. Greene had just escaped from prison. On Feb. 12, 1976, they robbed the store where Ms. Allen worked, taking her, $466 and her vehicle. Both men raped Ms. Allen and Mr. Moore shot her. Mr. Green was arrested in South Carolina driving Ms. Allen's car. He was sentenced to death and executed Jan. 9, 1985, at the age of 28. Mr. Moore's sentence was overturned once but he was resentenced to death. It was overturned a third time, and a new sentencing trial has been pending since August 1992. Mr. Moore, who has a Web site, was transferred to the general prison population last September.
Ernest Ulysses Morrison, 36, was sentenced to death in November 1987 by Richmond County Superior Court Judge Albert Pickett. Mr. Morrison pleaded guilty to the rape, robbery and murder of a family acquaintance, Mary Edna Griffin, 54, on Jan. 9, 1987. Mr. Morrison asked Judge Pickett to sentence him to death. At the time he killed Mrs. Griffin, he was an escapee from the Aiken jail where he was awaiting trial for rape and robbery. A new sentencing trial to include the issue of mental retardation has been pending in Richmond County Superior Court since June 1993.
Robert L. Newland, 54, was sentenced to death in August 1987 in Glynn County for killing Carol Beatty, a 27-year-old woman who lived across the street from Mr. Newland and his roommate. Mr. Newland used a pocket knife to cut Ms. Beatty, slashing her throat deep enough to cut her vocal cords and her stomach enough for her intestines to show. Ms. Beatty lived for 22 hours after the attack and with an investigator's help she was able to spell out the name of her attacker. Mr. Newland had previously been convicted of a similar assault, but that conviction was reversed on appeal. His state appeal challenging the fairness of his trial has been pending since January 1991.
Curtis Osborne, 27, was sentenced to death in Spalding County in August 1991 for shooting to death two acquaintances Linda Lisa Seaborne, 28, and Arthur Lee Jones, also 28. Mr. Osborne confessed that on Aug. 6, 1990, he shot both people as they sat in a car parked alongside a dirt road. His state appeal challenging the fairness of his trial and sentence has been pending since June 1994.
Lyndon Fitzgerald Pace, 32, was sentenced to death in March 1996 in Fulton County. Mr. Pace committed a series of rapes and murders, mainly preying on elderly women from August 1988 through February 1989. He was convicted of killing women ages 78, 86, 79, 78 and 42. He was also convicted of several burglaries during that time period His first appeal to the Georgia Supreme Court hasn't been filed yet.
Bryan Ashley Parker, 36, was sentenced to death in Douglas County in November 1984 for the sexual assault and murder of an 11-year-old girl June 1, 1984. When Christie Anne Griffith disappeared from her trailer park home, Mr. Parker was among the people police questioned. They later learned he had been convicted in Florida of a child molesting charge. Mr. Parker choked and tried to rape the girl while he left his 2-year-old son sitting a car parked nearby. His federal appeal challenging the fairness of his trial was filed in December.
David Aaron Perkins, 36, was sentenced to death in June in Clayton County for the Aug. 13, 1995, slaying of Herbert Ryals III, a 38-year-old man who lived in the same apartment complex. Prosecutors believe Mr. Perkins, who had a long history of criminal convictions for violence and theft, lured Mr. Ryals to his home to rob him. Mr. Ryals' body was found in the bathroom where he had fledtrying to defend himself from more than 11 stab wounds. During his trial when a Virginia police officer testified how Mr. Perkins had thrown a fellow officer through a window, Mr. Perkins taunted the courtroom by making boxing gestures.
Jack H. Potts, 52, was sentenced to death in March 1976 in two counties Forsyth and Cobb counties for the kidnapping and murder of a 24-year-old good Samaritan, Michael Priest. Mr. Priest agreed to help Mr. Potts, who told him there had been an accident May 8, 1975. His co-defendant pleaded guilty to aggravated assault in exchange for a 10-year sentence. Mr. Potts escaped from the Forsyth County Jail in September 1987 and was shot twice by officers. Mr. Potts' conviction was overturned in May 1984, but he was resentenced to death in 1988 and again 1990.
Virgil Delano Presnell Jr., 43, was sentenced to death in October 1976 in Cobb County. Five months earlier, on May 4, 1976, he kidnapped two school girls . Mr. Presnell lay in wait for the 10- and 8-year-old girls, he confessed. He raped and sodomized the older girl and when 8-year-old Lori Ann Smith tried to run away, he drowned her in a stream. His sentence was overturned in 1992 by a federal appeals court. Mr. Presnell is still awaiting a new sentencing trial.
Mark Anthony Pruitt, 32, was sentenced to death in September 1987 in Pulaski County for the Montgomery County killing of 5-year-old Charise Walker. The girl was found raped, sodomized and beaten Nov. 15, 1986, when she disappeared from home. Charise, who's skull was fractured and leg broken, died a short time later. Mr. Pruitt was seen coming out of the woods where Charise was found. He wasn't wearing any pants and had blood on him. Mr. Pruitt has been awaiting a new sentencing trial on the issue of mental retardation since September 1994.
Timothy Pruitt, 25, was sentenced to death in Lumpkin County in October 1996 for the stabbing and strangulation killing of a 10-year-old neighbor girl. Wendy Nicole Vincent was killed in her own home. Mr. Pruitt's first appeal to the Georgia Supreme Court has not been filed yet.
William Howard Putman, 54, was sentenced to death in September 1982 in Cook County. Mr. Putnam, who had no prior felony record, attacked and robbed people at a truck stop the night of July 10, 1980, killing William Gerald Hodges, 49, David N. Hardin, 22, and Katie Christine Back, 28. His state appeal challenging the fairness of his trial was denied, as was his appeal of that to the state Supreme Court in September 1995.
Willie James Pye, 29, was sentenced to death in Spalding County in July 1996. He was convicted of the November 1993 rape, sodomy and shooting death of a 21-year-old woman in a supposed drug deal gone bad. His co-defendant was sentenced to life in prison. Mr. Pye still claims he's innocent and a motion for a new trial is pending.
Billy Daniel Raulerson Jr., 27, was sentenced to death in March 1996 in Chatham County for a Memorial Day 1993 killing spree. Mr. Raulerson killed 18-year-old Charlye Dixon and her fiance, 19-year-old Jason Hampton, raping Ms. Dixon after her murder. Mr. Raulerson then broke into the home of Teresa Gail Taylor, 40, and killed her. His first possible appeal to the Georgia Supreme Court has not been filed yet.
James Randall Rogers, 36, was sentenced to death in May 1982 in Floyd County for the torture and killing of a 75-year-old woman. On May 21, 1980, Grace Perry died when a rake handle was forced up her vagina so hard it punctured a lung, causing massive hemorrhaging. At the time of the killing, Mr. Rogers was on parole for burglary. Mr. Rogers' case has been pending in the trial court since 1994 on the issue of mental retardation.
Larry Romine, 45, was sentenced to die in April 1982 in Pickens County for the shotgun slayings of his parents, Roy Lee, 48, and Aville R. Romine, 50. Police say robbery was the motive for the March 19, 1991, double homicide. Mr. Romine's death sentence was reversed by the Georgia Supreme Court in June 1983, but he was resentenced to death again in August 1985. His federal appeal challenging the fairness of his trial was filed in 1996.
William C. Sallie, 31, was sentenced to death in March 1991 in Bacon County for killing his 41-year-old ex-father-in-law. In a violent rampage against his ex-wife and her family on March 31, 1990, Mr. Sallie shot to death John Lee Moore and wounded Mr. Moore's wife. He then kidnapped his ex-wife and her sister and took them to Liberty County where he repeatedly raped both women. His first possible appeal to the Georgia Supreme Court has not been filed yet.
Demarcus Ali Sears, 25, was sentenced to death in September 1993 in Cobb County. He and Phillip Williams kidnapped Gloria Ann Wilbur, 59, on Oct. 7, 1990, and then robbed, raped, stabbed and beat her with brass knuckles over a four-hour period. Mr. Williams was sentenced to two life sentences in May 1991. Mr. Sears first appeal to the Georgia Supreme Court has not been filed yet.
David Phillip Smith, 20, was sentenced to death Jan. 24 in Clayton County. He was convicted of the shotgun slaying of 16-year-old Jeremy Javies, a friend and neighbor. Mr. Smith methodically shot Jeremy in the arms and legs before putting the barrel of a sawed-off shotgun in the teen-ager's mouth and firing a final time. The first appeal to the state Supreme Court hasn't been filed yet.
Norris Speed, 26, was sentenced to death in October 1993 in Fulton County for killing a police officer, 32-year-old Niles Johantgen, known on his beat as "Russian." Prosecutors contended Mr. Speed was angry with Officer Johantgen who had arrested a man selling drugs from Mr. Speed's home, and for stopping and patting down three friends on Dec. 12, 1991. Witnesses said Mr. Speed walked up behind Officer Johantgen and shot him in the head. Mr. Speed had prior felony convictions. His first possible appeal to the state Supreme Court hasn't been filed yet.
Ronald Keith Spivey, 57, was sentenced to death in August 1977 in Muscogee County for shooting to death Columbus Police Officer Billy Watson, 41. The officer was off-duty on Dec. 28, 1976, when Mr. Spivey was in the process of robbing a lounge. Officer Watson, a six-year veteran officer, was married with three children. A federal appeal challenging the fairness of his trial has been pending since November 1995.
William Kenny Stephens, 49, was sentenced to death in Richmond County in February 1980 and again in November 1989. The second jury heard evidence of Mr. Stephens' schizophrenia and mental retardation but found death was the appropriate punishment for the shooting death of Investigator Larry D. Stevens, 38. The state Supreme Court sent Mr. Stephens' case back to Richmond County Superior Court for an answer to a question nearly seven years ago. The case has been pending every since.
Alphonso Stripling, 39, was sentenced to death in July 1989 in Douglas County. Mr. Stripling, who served time for armed robberies in 1973, 1979 and 1980, was convicted of shooting four co-workers on Oct. 15, 1988, when he decided to rob the fast food restaurant. Two of the employees 19-year-old Anthony Evans and 34-year-old Gregory Bass died from gunshot wounds. A state appeal challenging the fairness of his trial has been pending since June 1995.
Keith Bryan Taylor, 43, was sentenced to death in October 1990 in Pierce County for killing his 29-year-old estranged wife the day he received a court order to stay away from her. When an officer went to check on Lorrie Taylor on Jan. 12, 1989, Mr. Taylor answered the door dripping blood. The jury rejected an insanity defense by Mr. Taylor, who had been hospitalized for paranoid schizophrenic in 1987 and 1988. His state appeal challenging the fairness of his trial has been pending since December 1995.
Bryan Keith Terrell, 29, was sentenced to death in January 1995 in Newton County for the robbery and murder of 70-year-old John Henry Watson. Mr. Terrell had been released on parole about two months before Mr. Watson's June 22, 1992, murder. Mr. Terrell had forged about $8,000 in checks on Mr. Watson's bank account before the killing. Mr. Watson was beaten in the head and shot four times. Mr. Terrell's first possible appeal to the state Supreme Court hasn't been filed yet.
Keith Leroy Tharpe, 39, was sentenced to death in January 1991 in Jones County for the shotgun slaying of his 29-year-old sister-in-law, Jacqueline Freeman. On Sept. 25, 1990, Mr. Tharpe, who had repeatedly threatened and harassed his estranged wife and her family, used his vehicle to force his wife's car off the road. After shooting Ms. Freeman twice, he kidnapped and raped his estranged wife. Mr. Tharpe's only prior arrests were for driving violations. The state Supreme Court ordered the trial court to reconsider Mr. Tharpe's sentence, and that has been pending since February 1993.
Gary Chad Thomason, 21, was sentenced to death in Floyd County in October 1996. Mr. Thomason was convicted of killing 34-year-old Jerry Self, who was shot in his truck in his own driveway when he interrupted a burglary. Mr. Thomason's defense attorney had him plead guilty and waive a jury trial, leaving a judge to determine his punishment. The Supreme Court affirmed his conviction and sentence in July.
Ronnie Thornton, 32, was sentenced to death in November 1992 in Douglas County for the beating death of his girlfriend's 2-year-old daughter, Artealia Lavant, on May 7, 1991. Doctors determined Artealia and her siblings had been repeatedly abused. The state Supreme Court reversed Mr. Thornton's convictions in May 1994 because the prosecutor used videotaped testimony instead of calling the children to testify. A retrial hasn't been held yet and Mr. Thornton was transferred off death row in September. Artealia's mother, Shirley Lavant, pleaded guilty to cruelty to children and received a four-year sentence.
William Lamar Todd, 40, was sentenced to death in May 1989 in Harris County. On July 12, 1988, a co-worker found the body of Randy Churchwell, 33, at his home. Mr. Churchwell had been hit at least 12 times with a hammer. Mr. Todd later told police that he and his girlfriend stole Mr. Churchwell's wallet and car and headed to Texas where they were arrested two weeks later. Mr. Todd's only prior conviction was for simple possession of marijuana in Florida. A state appeal challenging the fairness of his trial has been pending since December 1995.
Johnny Lamar Wade, 41, was sentenced to death in March 1987 in Newton County for the strangulation killing of 13-year-old Lance Barnes. The boy disappeared Aug. 8, 1986, after riding his bike to the store. Lance was seen leaving the store with Mr. Wade, his bike in the back of Mr. Wade's pickup truck. Lance's body was found the next day in the woods, his bike nearby. He had been beaten on the head and strangled. The Georgia Supreme Court reversed Mr. Wade's death sentence, but he was resentenced to death by another jury in April 1989. His state appeal challenging the fairness of his second trial has been pending since January 1994.
Tommy Lee Waldrip, 51, was sentenced to death in October 1994 in Dawson County for killing an eyewitness to a robbery that his son committed. Keith Evans, 23, was beaten and shot to death on April 13, 1991. Mr. Waldrip's son John Mark Waldrip and friend Howard Kelly Livingston were both sentenced to life in prison. In March the Georgia Supreme Court affirmed Mr. Waldrip's conviction and sentence. In July, the state Supreme Court overturned Mr. Livingston's conviction.
Jamie Ray Ward, 41, was sentenced to death in July 1991 in Walker County for killing a 23-year-old woman who was five months pregnant. Investigators believe Mr. Ward was a serial rapist whose crimes escalated to murder on Aug. 17, 1989, when he abducted Nikia Gilbreath from her home. Mr. Ward was arrested months later after he kidnapped and raped a woman in another county and police found items belong to Mrs. Gilbreath at his home. Mr. Ward's state appeal challenging the fairness of his trial has been pending since April 1993.
Eurus Kelly Waters, 52, was sentenced to death in January 1981 in Glynn County for killing a teen-age girl and a woman. On April 25, 1980, emergency workers found 35-year-old Kathryn Ann Culpepper bleeding from a chest wound. She described Mr. Waters and his car and told police that she and her friend, 16-year-old Anita Lynette Paseur, were fishing when accosted. Anita's body was found that night on a back road, and Ms. Culpepper died five days later. Mr. Waters, a Waycross cab driver, had been treated for mental illness since 1978. His case was sent back to the trial court on the issue of mental retardation in December 1995.
Marcus Wellons, 41, was sentenced to death June 1993 in Cobb County. In December, Mr. Wellons came within three hours of execution because an attorney who had just volunteered to file an appeal petition was denied time to study the case. A U.S. District judge stayed the execution. Mr. Wellons was convicted of the rape and murder of 15-year-old India Roberts who lived in the same apartment building as Mr. Wellons' girlfriend on the morning of Aug. 31, 1989.
Frederick R. Whatley, 23, was sentenced to die in Spalding County this year for the Nov. 3, 1993, robbery and beating death of a McDonald's restaurant employee. The 18-year-old victim, Mark Fugate, was a key witness against his own father, Wallace Marvin Fugate III, who killed his mother and is now on death row in Georgia. Mr. Whatley's co-defendant Jeffery Cross hasn't been tried yet. Mr. Whatley's first appeal to the Georgia Supreme Court hasn't been filed yet.
Alexander E. Williams, 29, was sentenced to death in Richmond County in August 1986 for the kidnapping, robbery, rape and murder of 16-year-old Aleta Carol Bunch. She disappeared March 4, 1986. Her body was found 11 days later after Mr. Williams' then attorney told police where to look. Mr. Williams had prior convictions for theft and entering an automobile. In August, U.S. District Judge Dudley H. Bowen Jr. denied Mr. Williams' federal appeal challenging the fairness of his trial.
Willie James Wilson Jr., 40, was sentenced to death in February 1982 in Pierce County for the shooting deaths of two men during an armed robbery. Alfred Boatwright, 64, and Morris Highsmith, 58, were shot to death June 22, 1981 at Mr. Boatright's handyman store. At the time, Mr. Wilson was a soldier who was AWOL from Fort Stewart. In March 1991, Mr. Wilson's case was sent back to the trial court on the issue of mental retardation.
Wikipedia: Georgia Executions
DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157 (Ga. 1997). (Direct Appeal)
Defendant was convicted before the Superior Court, Cobb County, Dorothy A. Robinson, J., of the malice murders of his parents, and his 14–year–old sister, and was sentenced to death. On his appeal, the Supreme Court, Thompson, J., held that: (1) evidence was sufficient to sustain convictions; (2) trial court did not commit error in its qualification of prospective jurors; (3) defendant did not establish ineffective assistance of counsel; (4) magistrate had probable cause to issue warrants for search of family home, vehicles parked in driveway, vehicle defendant was driving on day of murders, and storage unit rented by defendant; (5) U.S.C.A. Const.Amend. 5 right against self-incrimination was not implicated by photographs of scratches on defendant's neck; and (6) death penalty was not excessive or disproportionate. Affirmed.
Andrew Grant DeYoung was convicted of the malice murders of his parents, Kathryn and Gary DeYoung, and his 14–year–old sister Sarah.FN1 The jury recommended the death penalty, finding that as to each of the three counts of the indictment, the offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: murder; the offender committed the offense of murder for the purpose of receiving money or any other thing of monetary value; the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind of the defendant and aggravated battery of the victims prior to their deaths. OCGA § 17–10–30(b)(2), (4), (7). The trial court sentenced DeYoung to death. Finding no error, we affirm.
FN1. The crimes occurred on June 14, 1993. DeYoung was indicted on September 9, 1993 and charged with three counts of malice murder. The State filed its notice of intent to seek the death penalty on September 10, 1993. Trial commenced before a jury in Cobb County on September 25, 1995, and concluded on October 13, 1995. The jury returned guilty verdicts on all three counts, and recommended a sentence of death. DeYoung was sentenced on October 13, 1995. A motion for new trial was filed on October 30, 1995, and amended on November 13, 1995 and April 22, 1996. The motion for new trial was denied on January 27, 1997. DeYoung filed a notice of appeal on February 26, 1997. His case was docketed in this Court March 19, 1997 and orally argued on June 23, 1997.
During the months preceding the crime, DeYoung told his accomplice David Michael Hagerty FN2 that he wanted to start a business and hoped to find investors to finance the project. He later confided in Hagerty that he had been unsuccessful in finding financial backing, but that he had another solution. He estimated his parents' estate to be worth $480,000, and, as Hagerty testified, “he felt that the only means to acquire the money was take his family's life.” Subsequently, DeYoung told Hagerty that “the murders were going to have to take place,” and the two met to discuss preparations.
FN2. Hagerty, who was charged along with DeYoung, pled guilty to three counts of malice murder, for which he received three consecutive life sentences. He testified as a witness for the State at DeYoung's trial.
DeYoung formulated the plan to murder his parents and two siblings by slashing their throats, and then setting fire to the house. Several days before the planned event, DeYoung drove Hagerty to the DeYoung family's church in Dunwoody. There they buried two containers—a footlocker and another box—which contained what DeYoung described to Hagerty as evidence which would incriminate him. In preparation for the murders, DeYoung and Hagerty purchased clothing and supplies, including an 11–inch filet knife and two gasoline containers.
According to the plan, DeYoung and Hagerty traveled on foot to the DeYoung home at 2:00 a.m. on the designated day. On the way, they retrieved boots, gloves and knives from a duffle bag which DeYoung had left in the woods earlier that evening. Both men were armed with knives. They approached the DeYoung home from the rear of the property where they retrieved two containers of gasoline they had left there earlier. When they reached the house, DeYoung took a handgun from his duffle bag and tucked it into his waistband. After he cut the telephone wires, he and Hagerty entered the house. DeYoung went upstairs where his parents and sister were asleep. He instructed Hagerty to go to a downstairs bedroom where his 16–year–old brother Nathan was asleep, and to cut his throat with the filet knife.
DeYoung stabbed his mother repeatedly while she was sleeping in her bedroom upstairs; her screams awakened his father. As he struggled with his father, DeYoung's sister Sarah came to the doorway of their parents' bedroom. DeYoung slashed his father to death, and then stabbed and killed Sarah in the hallway. Hagerty heard a commotion upstairs, and changed his mind about killing Nathan.
Nathan testified that he heard stomping and banging noises coming from upstairs, and he heard his sister cry out and call his name. Upon finding that the phone was dead, Nathan escaped through his bedroom window and ran to a neighbor's house for assistance. Instead of setting fire to the house as they had planned, DeYoung and Hagerty searched the area for Nathan. Nathan returned with a neighbor who was armed with a gun. The neighbor noticed movement in the driveway, and observed a figure clad in black. As the neighbor was about to shoot at the man, he observed that it was Andrew DeYoung, and he called out, “Andy, what did you do?” The neighbor testified that he had no doubt the man he saw was the defendant. Nathan did not see the suspect's face, but he testified that his “movements and his body size resembled Andy, my brother.”
DeYoung and Hagerty fled from the house in separate directions. Both had discarded their clothing, boots, and weapons along the way. They eventually met up later that morning at Hagerty's home, where they concocted an alibi. Hagerty observed that DeYoung had injuries to his neck and forehead. DeYoung drove back to his home at 10:30 a.m., seven hours after the murders. He told police that he had spent most of the night at Hagerty's home, and he denied any involvement in the crimes. Authorities noted that he was calm and showed no grief over the deaths of his family members. There were scratches and abrasions present on his face, neck, hands and right arm.
Hagerty was interviewed by police and gave several statements in which he admitted his participation in the crimes. He also led authorities to the clothing worn by him during the killings, and to the footlocker and box which had been concealed on the church property. These contained DeYoung's shoulder holster and ammunition pouch and a hand-drawn map depicting the route to the DeYoung home. An arrow on the map pointed to a cul-de-sac where the house was located and was accompanied by the words “Just Do It.” Hagerty also led police to a gun that fit the holster recovered in the footlocker, and a Glock Model 81 military survival knife, which he identified as similar to the knife DeYoung used on the night of the crime. The victims' wounds were consistent with that knife. DeYoung and Hagerty were arrested on the same day, and charged with the three murders.
1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the malice murders of his parents and sister. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. DeYoung contends that the trial court erred in excusing prospective jurors Standifer and Huff for bias against the death penalty. In order to justify disqualification under Wainwright v. Witt, 469 U.S. 412, 424–426, 105 S.Ct. 844, 852–854, 83 L.Ed.2d 841 (1985), it must be shown that the venireperson's views would prevent or substantially impair the performance of his duties as a juror. A juror who merely expresses “qualms” about capital punishment is not subject to being struck for cause. Jarrell v. State, 261 Ga. 880(1), 413 S.E.2d 710 (1992); Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985). In determining whether the Witt standard has been met, a prospective juror's voir dire must be considered in its entirety. Crowe v. State, 265 Ga. 582(10), 458 S.E.2d 799 (1995). And a trial court's determination that a juror should be disqualified is entitled to deference. Diaz v. State, 262 Ga. 750(2)(b), 425 S.E.2d 869 (1993).
a. Venireperson Standifer's voir dire responses as to whether he could vote for the death penalty were often equivocal and he initially appeared to be uncertain of his position on this issue. However, after extensive questioning by the trial court, Standifer's unwillingness to impose the death penalty became more clear. Although Standifer stated he would vote for a life sentence nine times out of ten, indicating the death penalty might be a viable option, he later explained that he would vote for death only if the crime were committed against his family or himself. Standifer concluded by stating that he had always believed he could not vote to impose the death penalty and still held that view, but noted that he had never been questioned on this subject before.
This Court has recognized that many venirepersons “ ‘simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear.” ’[Cit.]” Ledford v. State, 264 Ga. 60, 64(6), 439 S.E.2d 917 (1994). It was, therefore, for the trial court to resolve the equivocations and conflicts in Standifer's responses. The trial court did not abuse its discretion in ruling that this venireperson should be disqualified. Id.; Burgess v. State, 264 Ga. 777(9), 450 S.E.2d 680 (1994); Foster v. State, 258 Ga. 736(1), 374 S.E.2d 188 (1988).
b. Venireperson Huff stated that she had always been opposed to the death penalty and although she thought there might be a place for it in society today, she could not vote to impose it. Huff particularly expressed her aversion to death by electrocution. Huff stated that she had given the issue of punishment a great deal of thought but her opposition to the death penalty had not changed over time. Although she would try to lay these views aside and consider death as a viable punishment option, she clearly expressed her lack of confidence that she could do so. The trial court did not err in excusing Huff on the basis of her inability to vote for death. Ledford, supra at (6)(b), 439 S.E.2d 917.
3. DeYoung next asserts that the trial court erred by failing to excuse venirepersons Horner, Cannon, and Brown on reverse Witherspoon FN3 grounds. While these jurors indicated a preference for a death sentence under certain circumstances, the record supports the trial court's finding that they were capable of serving as impartial jurors and would consider both evidence in mitigation and the option of a life sentence. See Carr, supra at (6), 480 S.E.2d 583; Hittson v. State, 264 Ga. 682(6), 449 S.E.2d 586 (1994). We find no error. FN3. Witherspoon v. Illinois., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
4. DeYoung argues that prospective jurors Mitchell and Brown should have been disqualified for bias as a result of exposure to pretrial publicity. “ ‘In order to disqualify a juror for cause, it must be established that the juror's opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.’ ” Chancey v. State, 256 Ga. 415, 425(3)(a), 349 S.E.2d 717 (1986). See also McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996).
a. Although Mitchell stated he believed appellant “might” be guilty based on a newspaper account he read at the time the crimes occurred, he emphasized that appellant's guilt would have to be proven to him. He never stated that he had formed an opinion as to appellant's guilt. The trial court did not abuse its discretion in finding that this juror could lay aside any bias and decide the case on the evidence and instructions of the trial court. Diaz, supra at (2)(b), 425 S.E.2d 869.
b. Although Brown expressed concern he might be biased against appellant, his doubts about his own impartiality did not demand as a matter of law that he be excused for cause. Waldrip v. State, 267 Ga. 739(8)(c), 482 S.E.2d 299 (1997). Brown stated that he had “heard one side of the story” in the Atlanta newspaper when the crimes occurred; however, he agreed that news reports were not always accurate and he could “separate testimony from reporting that occurred two years ago.” Upon further questioning, it became clear Brown was unable to recall any details of the case or the motive for the crime. The trial court's conclusion that Brown had formed no fixed opinion with regard to appellant's guilt is supported by the record. That ruling is entitled to deference from this Court. Diaz, supra at (2), 425 S.E.2d 869. We find no manifest abuse of discretion in qualifying this juror.
5. Appellant contends that he was denied effective assistance of counsel at trial on several grounds. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “[t]o establish ineffective assistance of counsel, [appellant] must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense.” Gross v. State, 262 Ga. 232, 233(1), 416 S.E.2d 284 (1992). There is a strong presumption that counsel's performance was not deficient. Strickland, supra; Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985). And a reviewing court “must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, supra at 690, 104 S.Ct. at 2066.
Appellant argues that counsel was ineffective for failing to move to disqualify venireperson Horner for cause because she had at one time worked for the district attorney and was a good friend of a secretary who was currently employed by the office. It was shown that 18 years earlier, Horner worked as a receptionist for the district attorney's office for a period of one week, filling in for a vacationing friend who was no longer employed there. Her duties consisted of answering phones and taking messages. Horner had no contact with the district attorney or any member of the office since that time, and she stated that her experience would not affect her judgment in the case. Unlike the juror in Beam v. State, 260 Ga. 784(2), 400 S.E.2d 327 (1991), Horner was not and never had been a full-time employee of the district attorney's office. See Denison v. State, 258 Ga. 690(4), 373 S.E.2d 503 (1988). Therefore, counsels' failure to move to disqualify this juror was not deficient.
DeYoung's contention that his attorneys should have moved to excuse Horner based on her exposure to prejudicial pretrial publicity is similarly without merit. Although Horner read and heard about the case from newspapers and television reports when the crimes occurred, she remembered almost nothing about it and she stated that she did not know enough to form any opinion about the case. Because it was not shown that juror Horner's opinion was so fixed and definite that she would be unable to set it aside and decide the case based on the evidence, trial counsel were not deficient in failing to move to excuse her. McClain v. State, supra at (1), 477 S.E.2d 814; Garland v. State, 263 Ga. 495(1), 435 S.E.2d 431 (1993).
Next, DeYoung contends that during the guilt-innocence phase, his attorneys were ineffective when they cross-examined Hagerty about burglaries committed by DeYoung. The trial court found that this was a deliberate tactical decision, since counsel knew DeYoung would be convicted and preferred to bring out this evidence themselves, rather than allow the prosecutor to elicit the evidence during the sentencing phase where the information could, in their judgment, be more damaging. The court noted that the idea behind the strategy was to portray Hagerty as the architect of the other crimes as well as the murders. Informed strategic decisions do not amount to inadequacy under Strickland. Stewart v. State, 263 Ga. 843(6), 440 S.E.2d 452 (1994). “The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.” Id. at 847, 440 S.E.2d 452.
DeYoung next argues that counsel was ineffective for eliciting testimony from the medical examiner that the absence of any wounds on the victims' faces could mean that the perpetrator knew or had strong emotional ties to the victims. Pretermitting the question of whether the representation fell below an objective standard of reasonableness, we find no prejudice as a result of this exchange, since there is no reasonable probability the outcome of the proceeding would have been different had appellant's counsel not asked the question that led to the medical examiner's response.
Finally, DeYoung complains that his trial counsel was ineffective for failing to present character evidence in mitigation from Dianne Butler, Kathy Albright and Beth Fisher. We find no error. According to the record, trial counsel extensively investigated DeYoung's background, interviewing his teachers, other students at his school, co-workers, friends and family members. DeYoung was examined by both a psychologist and a psychiatrist and the defense presented mitigation testimony from a former teacher, a former neighbor, and appellant's grandparents. Counsel elected not to offer Butler, Albright, and Fisher as mitigation witnesses since their testimony would have been cumulative.
Decisions regarding which witnesses to present are matters of trial strategy. When founded on legitimate evidentiary concerns, such decisions do not constitute ineffective assistance of counsel. Brooks v. State, 265 Ga. 548(4), 458 S.E.2d 349 (1995). The affidavits submitted at the motion for new trial reveal that Albright and Fisher were appellant's co-workers at Burger King. The trial court noted in its order denying the motion for new trial that the affidavits of these witnesses demonstrated that DeYoung was “intelligent, a good worker, and pleasant to be around, and [had] hopes to improve his position in life,” and their testimony would have been similar to that presented by the witnesses who did testify.
We conclude that none of the enumerated actions or omissions by counsel constitute ineffective assistance of counsel.
6. There is no merit to the claim that electrocution constitutes cruel and unusual punishment in violation of the Eighth Amendment. Wellons v. State, 266 Ga. 77(32), 463 S.E.2d 868 (1995); McMichen v. State, 265 Ga. 598(27), 458 S.E.2d 833 (1995).
7. DeYoung challenges the issuance of four search warrants on the basis that the issuing magistrate lacked probable cause.
A search warrant will only issue upon facts “sufficient to show probable cause that a crime is being committed or has been committed.” OCGA § 17–5–21(a). The magistrate's task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984). Our duty in reviewing the magistrate's decision in this case is to determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrants. Grier v. State, 266 Ga. 170, 172, 465 S.E.2d 655 (1996). A magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. McClain v. State, 267 Ga. 378, 388, 477 S.E.2d 814 (1996). We will address the challenged search warrants in turn:
a) Search warrants 184 and 187.
When police arrived at the crime scene in the early morning hours of June 14, 1993, they conducted a sweep of the house but did not enter one room because it was locked. The investigating officers learned from DeYoung's brother, Nathan, that this room was DeYoung's bedroom. Later that morning, the police sought search warrant # 184 to authorize a search of the entire house, including DeYoung's bedroom, and a search of several vehicles parked in the driveway, including DeYoung's van. The affidavit recited that three murder victims had been found in the house, that there were copious amounts of blood and blood spatter at the scene, and that no obvious murder weapon had been found near the bodies. The affiant also informed the magistrate that DeYoung had been seen at the house on the night of the murders. The items sought were cutting instruments and bloody clothing. The magistrate issued the warrant.
The police searched the house and vehicles but could not complete the search of DeYoung's bedroom that night because of its messy, cluttered condition. The following day, the police sought a second search warrant, # 187, in order to complete their search of the house and vehicles. The supporting affidavit recited the same facts as the previous affidavit but added that DeYoung had been arrested and charged with the murder of his parents and sister. The list of items sought was expanded to include writings and books depicting or planning the execution of others and weapons other than knives. The magistrate issued the warrant.
Sufficient probable cause existed to authorize the issuance of both search warrants. With regard to search warrant # 184, it is clear, based on the information contained within the affidavit, that there was a fair probability that evidence of the murders would be found in the house and vehicles parked in the driveway. Stephens, supra at 182, 311 S.E.2d 823. Similarly, the magistrate had a substantial basis for concluding that there was probable cause to issue search warrant # 187—because DeYoung had been charged with the murders there was a fair probability that evidence showing DeYoung planned and executed the murders would be located in the house where he lived and in his vehicle. “An officer's inference that items sought will be at the place to be searched requires no more than a ‘fair presumption’ to be reasonable.” McClain, supra at 388, 477 S.E.2d 814.
b) Search warrant 190.
When news of the murders became public, the police received a call from Vic Adams, the manager of a self-storage warehouse, who informed them that DeYoung was leasing a storage unit at his facility. The police then sought search warrant # 190 for DeYoung's storage bin. The affidavit recited that DeYoung was charged with the murders of his parents and sister, that two plastic cans filled with gasoline were found at the murder scene, and that sections of pipe, gunpowder, and shotgun shells had been recovered in earlier searches of DeYoung's house and van. In addition, the same magistrate had issued a search warrant four hours earlier for DeYoung's footlocker and was informed at that time that, according to the accomplice, DeYoung had secreted incriminating evidence away from his house. The magistrate asked the affiant to call Mr. Adams and ask when DeYoung had last been at the storage facility. Mr. Adams told the officer that DeYoung had last been at the storage unit on the “night of the crime.” Mr. Adams was actually referring to a burglary of the self-storage facility that had occurred 16 days earlier, when DeYoung had come to inventory his space to determine if any property was missing. The affiant, unaware of the misunderstanding, informed the magistrate that DeYoung had been at the storage unit on the night of the murders. The magistrate issued the search warrant.
DeYoung contends that the affiant's misstatement to the magistrate invalidates the search warrant. We disagree. The affidavit was sufficient without the erroneous information supplied by Mr. Adams. Based on the affidavit alone, the magistrate had a substantial basis to conclude that there was a fair probability that evidence incriminating DeYoung might be found in his storage unit. See Stephens, supra at 182, 311 S.E.2d 823; Grier, supra at 172, 465 S.E.2d 655. Furthermore, the magistrate was already familiar with the case and knew that DeYoung had secreted incriminating evidence away from his house. We find no error in the issuance of search warrant # 190.
c) Search warrant 191.
At approximately 10:30 on the morning of the murders, DeYoung arrived at the murder scene driving a Ford LTD. He parked the Ford in the cul-de-sac adjoining the DeYoung driveway, perpendicular to the curb. The police took DeYoung in for questioning and eventually arrested him. The Ford LTD was impounded and the police sought a search warrant for the vehicle two days later. The affidavit recited that DeYoung had been charged with the murders and that gasoline containers, sections of pipe, gunpowder, and shotgun shells had been found at the crime scene and in DeYoung's van. The affidavit also stated that DeYoung had been driving the Ford on the day of the murders. Based on this information, it was reasonable for the magistrate to conclude that evidence relating to the crime would be found in the Ford. See id. Search warrant # 191 was valid.
8. The trial court did not err in denying DeYoung's motion to suppress his custodial statements. DeYoung was initially interviewed at the police station for approximately an hour and 20 minutes. Following this interview, he was arrested and placed in a holding cell and interviewed for some 20 to 30 minutes later that day. The trial court found that appellant was advised of his rights under Miranda prior to both interviews; no promises, threats, or other forms of coercion were used against him; and he knowingly and voluntarily waived his rights.
DeYoung generally asserts that the officers lied to him in an attempt to elicit an incriminating statement. Even if he had shown this to be true, use of trickery to obtain a confession does not render the confession inadmissible so long as “ ‘the means employed are not calculated to procure an untrue statement.’ ” Moore v. State, 230 Ga. 839, 840(1), 199 S.E.2d 243 (1973). And absent any evidence that the police investigative techniques were designed to induce the “slightest hope of benefit or ... fear of injury,” the resulting statements are not rendered involuntary and inadmissible under OCGA § 24–3–50. State v. Ritter, 268 Ga. 108(1), 485 S.E.2d 492 (1997); Lewis v. State, 255 Ga. 681(3), 341 S.E.2d 434 (1986).
A trial court's findings as to factual determinations and credibility relating to the admissibility of a defendant's statement will be upheld on appeal unless clearly erroneous. Bright v. State, 265 Ga. 265(5)(b), 455 S.E.2d 37 (1995). The findings in this case were not clearly erroneous.
9. The trial court did not err in denying a motion to quash the indictment for failure to supply the information required under OCGA § 17–7–54. The indictment contained the elements of the offenses charged and was sufficiently definite to protect appellant against future prosecution for the same murders. Cook v. State, 255 Ga. 565(10), 340 S.E.2d 843 (1986); Lewis v. State, 215 Ga.App. 486, 451 S.E.2d 116 (1994).
10. DeYoung's challenges to the constitutionality of the Georgia death penalty scheme lack merit. Wellons, supra at (25), 463 S.E.2d 868; McMichen, supra at (30), 458 S.E.2d 833.
11. Death qualification of jurors in the guilt-innocence phase of a death penalty prosecution is not unconstitutional. McMichen v. State, supra at (28), 458 S.E.2d 833. Nor does death penalty qualification of jurors violate the right under OCGA § 15–12–40(a)(1), to an impartial jury drawn from a representative cross-section of the community. Catchings v. State, 256 Ga. 241(3), 347 S.E.2d 572 (1986); Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).,
12. DeYoung did not present sufficient evidence to support his motion to quash the indictment based on discrimination in the selection of grand jury forepersons in Cobb County. Rower v. State, 264 Ga. 323(4), 443 S.E.2d 839 (1994); Ingram v. State, 253 Ga. 622(1)(c), 323 S.E.2d 801 (1984).
13. DeYoung asserts that the trial court erred in refusing to suppress his statements to the medical examiner explaining the origin of scratches to his neck, as well as photographs taken of those injuries, for the reason that the medical examiner's examination was conducted without a warrant, in violation of Miranda and against defendant's will.
The Fifth Amendment right against self-incrimination was not implicated by photographs which are not testimonial in nature. Rivers v. State, 265 Ga. 694(3), 461 S.E.2d 205 (1995). See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore, no warrant or Miranda warnings were required prior to taking the photographs. And any claim of coercion is contradicted by the evidence which shows that DeYoung agreed to remove his shirt and be photographed. As for the statements concerning his injuries, it was shown that DeYoung was advised of his Miranda rights prior to meeting with the medical examiner, and that DeYoung himself elicited the statements at trial during his cross-examination of the medical examiner. Therefore, we find no error.
14. The trial court did not err in denying appellant's challenges to the arrays of the grand and traverse jurors on the ground that the use of the voter registration lists as the source for these jury pools results in an underrepresentation of African–Americans, young adults, Hispanics, Asians and other minorities. Because the voter list does not accurately represent the racial percentages in the county population, the computer selection was adjusted so that there is zero racial disparity. We find no evidence that African–Americans were underrepresented on the grand and traverse jury pools and similar challenges have been found to lack merit. Wellons, supra at (29), 463 S.E.2d 868; Sears v. State, 262 Ga. 805(2), 426 S.E.2d 553 (1993). The other groups which DeYoung claims are underrepresented have not been found to be cognizable classes for purposes of a constitutional challenge. Wellons, supra at (29), 463 S.E.2d 868; Ingram, supra at (1)(d), 323 S.E.2d 801.
15. The trial court did not err in denying DeYoung's motion to exclude evidence or argument during the sentencing phase of trial regarding his lack of remorse. Carr, supra at (8)(d), 480 S.E.2d 583; McMichen, supra at (12), 458 S.E.2d 833.
16. The evidence overwhelmingly supports the jury's findings of aggravating circumstances under OCGA § 17–10–30(b)(2), (4), and (7), as to each count of the indictment. OCGA § 17–10–35(c)(2).
17. We do not find that DeYoung's death sentence was imposed as the result of impermissible passion, prejudice or any other arbitrary factor. OCGA § 17–10–35(c)(1). The sentence of death in this case is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crimes and the defendant. OCGA § 17–10–35(c)(3).
18. The similar cases listed in the Appendix support the imposition of the death sentence in this case, in that all these cases involved deliberate, unprovoked killings.
Judgment affirmed. All the Justices concur.
Carr v. State, 267 Ga. 547, 480 S.E.2d 583 (1997); Bennett v. State, 262 Ga. 149, 414 S.E.2d 218 (1992); Taylor v. State, 261 Ga. 287, 404 S.E.2d 255 (1991); Jarrells v. State, 258 Ga. 833, 375 S.E.2d 842 (1989); Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468 (1987); Baxter v. State, 254 Ga. 538, 331 S.E.2d 561 (1985); Moore v. State, 254 Ga. 525, 330 S.E.2d 717 (1985); Smith v. State, 249 Ga. 228, 290 S.E.2d 43 (1982).
FLETCHER, Presiding Justice, concurring.
This court and other appellate courts have held that electrocution does not constitute cruel and unusual punishment in violation of the Eighth Amendment. I write to urge the General Assembly to reconsider the method of execution in Georgia.
In the late 1880s a commission appointed by the New York legislature ascertained that electrocution was the most humane and practical method of execution.FN4 In the following two decades, eleven states also concluded that electrocution was less painful and more humane than death by hanging. FN5 Fortunately, neither our concept of what is humane nor our concept of what is cruel and unusual punishment must remain locked in a vacuum. In this century we have witnessed rapid changes in methods of communication and transportation. Science has caused us to rethink most everything from our views on ethics and morals to our concept of space. Perhaps it is also time that Georgia rethinks its method of execution.
FN4. See In re Kemmler, 136 U.S. 436, 444, 10 S.Ct. 930, 932–933, 34 L.Ed. 519 (1890). FN5. Malloy v. South Carolina, 237 U.S. 180, 185 n. 1, 35 S.Ct. 507, 509 n. 1, 59 L.Ed. 905 (1915). Just last month our neighbor state of Florida recognized the need to address this issue in view of the time in which we live.FN6 A bare majority of the Florida Supreme Court held “that electrocution in Florida's electric chair in its present condition” does not violate either the U.S. or Florida's constitutional prohibition of cruel and unusual punishment. Half of that majority, however, expressed concerns that electrocution may be declared unconstitutional, and urged the Florida legislature to provide an alternative method of execution. Their concern appears well founded, as three of the court's seven justices concluded that Florida's present method of execution violates Florida's constitutional ban on cruel and unusual punishment. FN6. Jones v. State, 701 So.2d 76 (Fla. 1997) (available on the Internet at htttp://nersp.nerdc.ufl.edu/ lawinfo/flsupct/cases).
The vast majority of the states have addressed the issue through legislation. Of the 38 states that permit the imposition of the death penalty, only Georgia and six other states presently provide no alternative to electrocution.FN7 Therefore, I urge the General Assembly to revisit the issue in light of modern knowledge and changing attitudes as reflected in other jurisdictions.FN8
FN7. This information comes from the Death Penalty Information Center, available on the Internet at http://www.essential.org/dpic/. FN8. See Poyner v. Murray, 508 U.S. 931, 933, 113 S.Ct. 2397, 2398–99, 124 L.Ed.2d 299 (1993) (Souter, J., commenting) (noting that Kemmler is not dispositive of constitutionality of electrocution in light of modern knowledge). I am authorized to state that Chief Justice BENHAM joins in this concurrence.
DeYoung v. Schofield, 609 F.3d 1260 (11th Cir. 2010). (Habeas)
Background: Following affirmance of his murder convictions and death sentence, 268 Ga. 780, 493 S.E.2d 157, state inmate filed petition for writ of habeas corpus. The United States District Court for the Northern District of Georgia, No. 04-01559-CV-WBH, Willis B. Hunt, Jr., J., denied petition, and petitioner appealed.
Holdings: The Court of Appeals Hull, Circuit Judge, held that: (1) determination that petitioner was not denied effective assistance due to trial counsel's alleged failure to adequately investigate and present evidence of his family background and social history was reasonable; (2) determination that petitioner was not denied effective assistance due to trial counsel's alleged failure to adequately investigate mental health issues testimony was reasonable; (3) determination that petitioner was not denied effective assistance due to trial counsel's strategic decisions was reasonable; (4) determination that petitioner was not denied effective assistance as result trial counsel's failure to call his brother to testify during penalty phase was reasonable; and (5) determination that counsel's alleged deficient performance did not prejudice petitioner was reasonable. Affirmed.
HULL, Circuit Judge:
Georgia death-row inmate Andrew Grant DeYoung (“DeYoung”) appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. After review and oral argument, we affirm.
A. The Murders
On June 14, 1993, DeYoung murdered his parents, Kathryn and Gary DeYoung, and his fourteen-year-old sister Sarah DeYoung.FN1 DeYoung planned the murders with David Hagerty. DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157, 161 (1997). DeYoung told Hagerty he wanted to kill his family to get money to start a business. FN1. When he committed the murders, DeYoung was nineteen years old, had finished high school and one year of college, and lived with his parents.
DeYoung and Hagerty planned to kill DeYoung's parents, his sister Sarah, and his sixteen-year-old brother Nathan by slashing their throats and then to set fire to the family's home to cover up the evidence. Id. On the night of the murders, DeYoung went upstairs, where his parents and sister were sleeping, and sent Hagerty to Nathan's downstairs bedroom. Id.
DeYoung stabbed his mother repeatedly while she was sleeping in her bedroom upstairs; her screams awakened his father. As [DeYoung] struggled with his father, DeYoung's sister Sarah came to the doorway of their parents' bedroom. DeYoung slashed his father to death, and then stabbed and killed Sarah in the hallway. Hagerty heard a commotion upstairs, and changed his mind about killing Nathan. Nathan ... heard stomping and banging noises coming from upstairs, and he heard his sister cry out and call his name. Upon finding that the phone was dead, Nathan escaped through his bedroom window.... Id. at 161-62.
Instead of setting the house on fire, DeYoung and Hagerty searched for Nathan. Meanwhile, Nathan fled to his neighbor Keith Harmon's home. Nathan returned minutes later to the DeYoung house with Harmon, who brought a gun. Harmon saw DeYoung in the driveway and called out to him, but DeYoung fled. Id. at 162. Harmon had been the DeYoungs' neighbor for about five years at the time of the murders. Harmon knew DeYoung and his siblings, and Nathan was a close friend of Harmon's stepson. FN2. After the murders, Nathan lived with Harmon until he finished high school.
Police arrived and found Gary, Kathryn, and Sarah DeYoung's bodies. Sarah had scores of stab, cutting, and slash wounds on her neck, back, chest, arms, and hands. The wounds to the back of Sarah's neck overlapped so much it was impossible to count them. There were at least seventeen wounds on Sarah's back, several of which had prominent hilt marks. The blood spatter patterns indicated Sarah was on the ground while most injuries were inflicted.
Kathryn DeYoung, like Sarah, had many stab wounds and cuts on her neck, back, and torso. Among them were a seven-inch-long cutting wound on her thigh and a five-inch-deep stab wound on her back that penetrated into her chest and completely severed her aorta. One wound in her neck cut all the way through her trachea and also severed her left carotid artery and left external jugular vein. Kathryn had wounds going across her chest and wrapping around her right side, consistent with being attacked while lying down and rolling away from her attacker.
Gary DeYoung suffered numerous wounds to his face and upper torso. He had a cut over his right eyebrow ridge, a deep stab wound in front of his right ear that fractured his jaw, stab wounds in his upper arm and neck, and numerous stab wounds to his chest. Gary also had two wounds on his right thigh, a six-inch-deep wound on his back, and a large chopping-type wound on his right biceps.
B. The Arrests
Several hours after the murders, DeYoung returned home. Police noticed “scratches and abrasions present on his face, neck, hands and right arm.” DeYoung v. State, 493 S.E.2d at 162. At the police station, DeYoung gave a statement, later played at his trial, in which he told police he had spent the night at Hagerty's house and denied involvement in the murders. Id. DeYoung said he went for a two-hour walk in the middle of the night and got the injuries when he fell down.
The police interviewed Hagerty, who admitted participating in the crimes. Hagerty led police to evidence, including a footlocker and box he had helped DeYoung hide three days earlier, a knife consistent with the victims' wounds, and a hand-drawn map showing the route to the DeYoungs' home. Id. The footlocker contained, among other things, personal notebooks written in DeYoung's handwriting, articles or books with DeYoung's name on them, and the hand-drawn map. The box contained materials for making pipe bombs.
DeYoung and Hagerty were arrested and charged with the three murders. Hagerty pled guilty and received three concurrent life sentences. DeYoung pled not guilty.
C. Defense Counsel
Attorneys Dennis O'Brien and Jimmy Berry were appointed to represent DeYoung. In April 1995, Jimmy Berry withdrew and the state trial court appointed Derek Jones as lead counsel, with O'Brien assisting. Both Jones and O'Brien were very experienced criminal defense attorneys. When Jones began representing DeYoung in April 1995, Jones had been an attorney for twenty years and had tried about ten capital cases. Jones obtained an acquittal in one, and most of the others “resulted in life sentences either at a plea, after extensive litigation, or at a jury verdict.” When O'Brien was appointed to represent DeYoung, O'Brien had tried 50 to 100 felony cases, including a number of murder cases, maybe one every couple of years, and he was involved in more murder cases that did not go to trial. O'Brien tried one death penalty case before DeYoung's. During this case, O'Brien consulted with more experienced death penalty attorneys.
D. Pretrial Mental Health and Mitigation Investigation
In their pretrial preparation, DeYoung's counsel consulted (1) psychiatrist Dr. Alfred Messer, (2) neuropsychologist Dr. Robert Shaffer, (3) private investigator Joseph Stellmack, and (4) death penalty mitigation specialist Pamela Blume Leonard. Dr. Messer met with DeYoung at the jail twice. O'Brien sent Dr. Messer a number of documents, including the police report; police interviews with DeYoung, Hagerty, a former neighbor of the DeYoung family, a cellmate of DeYoung's, and Nathan's girlfriend; and transcripts from the probable cause hearing and Hagerty's guilty plea. In his December 1994 report, Dr. Messer opined that the records and psychiatric evaluations were “sufficient to make a credible clinical judgment.”
Dr. Messer's report stated DeYoung was “alert, oriented, and cooperative,” and described no delusions or hallucinations. DeYoung had always been a loner, had little relationship with his siblings, and tended to avoid them. DeYoung's father gave him “very strict guidance,” but DeYoung received “very little physical discipline.” DeYoung tried to listen to his parents, who were the “most intellectual people [he] ever met,” and “always tried to make sure what [he] did would get [his] father's o.k.” But DeYoung differed sharply with his parents on church attendance. His parents insisted the family attend church together, but DeYoung “became interested in occult matters and had books on Satanism.” DeYoung indicated his occult interest “was just curiosity” and “didn't take me off course.”
DeYoung wanted to develop a business career that would earn him enough money to become “independent of people.” He had an idea for an entertainment complex and tried to raise money for it, but “[b]y the time [he] could get something organized, somebody else stole the idea.” DeYoung was “very cynical about people, particularly authorities and police” and had “little trust that things will work out for him.”
Dr. Messer diagnosed DeYoung with “[a]djustment [d]isorder with [w]ithdrawal,” but found “no evidence of psychosis, manic depressive illness or drug intoxication.” Dr. Messer also diagnosed DeYoung with “[b]orderline personality disorder ..., severe, manifested by chronic feelings of emptiness, boredom, and failure.” Dr. Messer concluded that DeYoung suffered from “uncertainty and shifting ideals about long-term goals and career,” a “need to be in control,” and “chronic irritability.” DeYoung demonstrated a “[p]ersistent pattern of unstable interpersonal relationships with overidealization or devaluation or cynical beliefs that people cannot be trusted, that they have stolen his ideas.”
Dr. Messer found “[n]o significant physical problems,” but that DeYoung had psychosocial stressors “related to an adolescent consolidating his identity and the need to achieve according to standards set by highly demanding parents.” Dr. Messer's 1994 report pointed out that DeYoung denied involvement in the murders and was completely able to help counsel at trial: Here is a man who steadfastly denies involvement in the murder of his parents and sister. There has always been a degree of power struggle with his parents about his ability to measure up to their standards. There is no long history of violence in this man.... The patient is completely able to cooperate with [counsel] in marshalling an appropriate defense at trial. I do not see psychiatric factors as part of his defense.
Dr. Messer met with attorneys Berry and O'Brien, and they “discussed the need to present psychological evidence in mitigation, to try to explain the killings.” Dr. Messer and the attorneys “agreed it was important to tell the jury in the penalty phase about the crime of parricide generally, and the specific indications in Mr. DeYoung's background and manner which fit the profile of a child who commits that crime.” Dr. Messer was “prepared to testify regarding parricide and [Dr. Messer's] observations of [DeYoung] and his family in this regard.”
During this pretrial phase, Dr. Shaffer performed an 11-and-1/2 hour neuropsychological evaluation of DeYoung. Dr. Shaffer reviewed DeYoung's high school and college records, plus a list of the items taken from DeYoung's footlocker. Dr. Shaffer's evaluation showed DeYoung had (1) an IQ of about 140, (2) an acute awareness of his intellectual abilities, and (3) no evidence of brain damage. DeYoung told Dr. Shaffer that his father “was of equally superior intellectual ability” and was one of the few people to whom DeYoung could relate, and that DeYoung and his father “competed intellectually.” DeYoung's parents “were unquestioningly religious, and their unwavering acceptance of church dogma had caused [DeYoung] to seek out and explore as many different philosophies and religions as he could in a search for answers.”
Dr. Shaffer found DeYoung had “a lack of empathy and emotional bluntness, as well as a very active fantasy life.” Dr. Shaffer diagnosed DeYoung with “Narcissistic Personality Disorder with symptoms of grandiosity.” Dr. Shaffer told DeYoung's attorneys there “was evidence of some borderline psychotic symptoms, and possible schizoid tendencies,” but Dr. Shaffer “did not have enough information to make that diagnosis with a reasonable degree of professional certainty.” FN3. Dr. Shaffer asked to speak with Nathan DeYoung. A memo from Leonard, the mitigation specialist, states: [Dr. Shaffer] agrees that deeper digging is necessary and he'd like to meet with the brother, Nathan. However, Derek Jones tried to squelch that idea because it would alert the family that “we are trying to trash the parents” and he is holding on to the grandparents as mercy mitigation witnesses.
Leonard's memo went on to say that Dr. Shaffer “found no indications of any neurological problems” and “saw no indication of serious personality disorder or mental illness.” Investigator Stellmack spent about 260 hours working on the DeYoung guilt-phase and penalty-phase investigation. Stellmack compiled a list of potential mitigation witnesses, starting with those persons DeYoung suggested the attorneys contact, and added people or information to the list as he or the attorneys learned about them.FN4 Someone from the defense team tried to contact everyone on the list. The list described the attempts to contact the persons, plus a brief summary of the information the witnesses provided. For certain witnesses, Stellmack created more detailed interview notes.
FN4. The list of potential mitigation witnesses contained the following 45 names: DeYoung's relatives Marvin and Letha DeYoung, William and Audrey Fridsma, Nathan DeYoung, Phillip and Brenda Veen, Susan Fridsma, John and Effie Vanderbilt, Karen Bielfuss, and Laura DeYoung; DeYoung's fellow church members Rev. Chris Devos, Melissa Oezer, Clarence DeYoung, Cindy Verhage, Bert VanWyk, and Steve and Leslie Ruiter; DeYoung's co-workers Kathy Albright, Beth Fisher, Judy Stevens, Barbara Grim, Jennifer Layton, Christin Edwards, and Sharon Koontz; DeYoung's friends Kim Earlywine and Diane Butler; DeYoung's neighbors Judy Polver Coffey, Cindy Etheridge, and Keith Harmon; DeYoung's college professors Alan Lowther, Dr. Martha Myers, Martha Boyd, Dr. Charles Setzer, James Richardson, Dr. Philip Secrist, Brit Povlson, Steven Smalt, Merle King, Faye Jenson, and Dr. David Morgan; and DeYoung's high school teachers Captain Csintyan, Velma Laughlin, and Bob Starrett.
On April 3-11, 1995, investigator Stellmack interviewed DeYoung's college teachers, assisted on an interview with Audrey Fridsma (the maternal grandmother), and conducted a telephone interview of Letha DeYoung (the paternal grandmother). On April 14, 1995, Stellmack met with O'Brien, Jones, Leonard, and Dr. Shaffer to discuss mitigation issues.
Stellmack also contacted DeYoung's maternal and paternal grandparents about testifying in the penalty phase. Stellmack described them as “reluctant.” Stellmack stated that “[n]one of [the grandparents] were certain of attending the trial or testifying [as of April 1995], and I felt strongly that we needed to get them on board to the extent we could.” FN5. In May 1995, Stellmack told O'Brien he should inform DeYoung that “no one is exactly jumping at the idea of testifying on his behalf.” Stellmack confirmed in his state habeas testimony that he had difficulty finding people to testify for DeYoung.
Stellmack tried to ask Nathan DeYoung to testify in mitigation. Nathan was living with Harmon, who would not let Stellmack talk to Nathan. Later, Nathan left Harmon's house and lived with his girlfriend; Stellmack tried again to contact Nathan. Stellmack got Nathan's telephone number from his grandparents and tried to call Nathan “regularly,” “on an average three times a day.” Stellmack spoke to Nathan's girlfriend several times and tried to explain to her “what the penalty phase was about and stressed to her that at some point in the future Nathan might want Andy to be alive.” Nathan's girlfriend told Stellmack that Nathan “had no interest in testifying.” As of May 1995, Stellmack was only getting Nathan's answering machine. Nathan never returned Stellmack's calls.
Investigator Stellmack tried to subpoena some of the Burger King co-workers DeYoung named as possible mitigation witnesses. When Stellmack went to Burger King to interview DeYoung's co-workers, the manager asked him to leave. Burger King instructed its employees to notify its legal department if the employees were interviewed or subpoenaed. Stellmack spoke with DeYoung's co-worker Kathy Albright at her home. The other employees Stellmack contacted told him they were not going to speak with him.
In September 1995, Stellmack tried to locate Kim Earlywine and spoke to DeYoung family friend Diane Butler. Stellmack interviewed DeYoung's ministerFN6 and the ROTC instructor at DeYoung's high school and re-interviewed neighbor Judy Polver Coffey. Stellmack subpoenaed DeYoung's school and work records. FN6. DeYoung's minister, Chris Devos, was “hesitant to discuss a lot of details” and told Stellmack only “what you would expect from a pastor”: the DeYoungs “attended his church, they came to church on a regular basis, they seemed like a nice family.” The defense attorneys considered calling Diane Butler to testify, but Jones decided not to use her as a witness. Jones had a “specific reason,” but Stellmack did not remember what it was. Jones and O'Brien also considered calling Leonard as a witness, but ultimately she was not called.
In September 1995, Stellmack called the grandparents to firm up their travel arrangements. Stellmack and O'Brien met and spoke to DeYoung's paternal grandparents, Marvin and Letha DeYoung, before trial began. After Jones was appointed as lead counsel, Jones took “the main responsibility for [the] penalty phase,” and “insist[ed] on concentrating on the grandparents as mitigation witnesses.” Attorney Jones met with DeYoung about ten times before trial. Jones spoke with DeYoung's grandparents, an uncle, some aunts, and other family members who lived across the United States and overseas. Jones's strategy was to “rely on residual [doubt] ... [and] the testimony of the family members in the sentencing.” Jones discussed this strategy with DeYoung, and DeYoung agreed with it. As to residual doubt, Jones tried to portray Hagerty, who was several years older than DeYoung, as the one “calling the shots.” Before Jones was appointed, DeYoung's counsel considered having Dr. Messer testify in the penalty phase as to parricide and the DeYoung family's internal dynamics. In an April 1995 colloquy with the state trial court, Berry explained the testimony the defense team was contemplating for Dr. Messer:
Dr. Messer has done some extensive reading in [the parricide] area, and is knowledgeable about what happens sometimes in families, and especially after talking with Mr. DeYoung, and looking at the evidence in the case, with relationship to how this family unit worked, and what happened in this family unit, what transpired, and what the members of this family unit did as a family, and didn't do as a family. All of these things he would be rendering an opinion about what ... may have happened in this family. What may have triggered this kind of a scenario. ... And what we would attempt to do would be to have Dr. Messer explain what other factors may have prompted [DeYoung's] conduct, ... as opposed to money.... It involves the dynamics of the family, the relationship with the father, these are the kinds of things that historically he has found in these kinds of cases, things like that. Counsel also considered retaining a parricide expert from California.
In May 1995, after Berry withdrew and Jones was appointed, O'Brien and Jones explained to the state trial court that they had made a strategy decision not to use the California parricide expert. Jones stated that he and O'Brien were “still grappling” with the idea of presenting “some sort of psychological explanation,” but that “if all this psychological testing ... comes to no fruition, then, you know, we're obviously not going to put it up in any phase.” Counsel explained they would decide after discussing the matter with Dr. Messer and Dr. Shaffer:
Mr. O'Brien: What we think will probably happen ... is to get Dr. [Shaffer] and his findings, conclusions with Dr. Messer.... [T]o sit down, let them compare notes, talk to us so that if there comes a point in time when and if the jury ever decides guilt, I would assume, and Derek the same, I assume, that the jury is going to want to know, how did this happen? And we were thinking that we would like to be able to explain it psychologically, at least give them that explanation. I mean, that's what- Mr. Jones: If there is one. Mr. O'Brien: If there is one. Mr. Jones: And, quite frankly, even if there is, you know, Dennis and I may look at it and say, well, you know, we might accept that but would a jury? And just jettison it.
Later, Jones and O'Brien met with Dr. Messer and Dr. Shaffer and decided not to present mental health evidence at the penalty phase because it was not helpful.FN7 Jones believed he and O'Brien researched the mental health area thoroughly. Jones stated, “[W]e consulted with experts, and experts did some evaluations, and it was not helpful.”
FN7. A memorandum from this meeting contains the following notations: No delusional comp[ulsion] or irresistible impulse[.] “No psychiatric defense!” ... I am annihilated or I'll annihilate them. Sh-People who perform parricide are not particularly violent-nor do they murder again. No remorse. No normal grief reaction.
The defense team collected information about parricide cases.FN8 But Jones, a very experienced criminal defense attorney, “didn't put much stock in the psychiatric angle, and he pushed to rely on having family members plead for mercy in the penalty phase.” Moreover, the defense team's jury consultant Maureen McGinley warned attorneys Jones and O'Brien that it would be a bad idea “to show disrespect for dead people in court” by presenting evidence tending to malign the victims, and that if there was sufficient evidence to allow the jury to infer something inappropriate occurred within the DeYoung family that prompted DeYoung to commit the murders, the attorneys should “leave it hanging and let the jury make [the inference] on their own.” FN8. Leonard, the mitigation specialist, provided counsel with a list of documentary evidence to collect. Leonard suggested that parricide was a crime that “necessarily suggested an abuse situation.”
As to non-mental health mitigation, Jones and O'Brien considered calling a number of witnesses that they ultimately did not call. Jones and O'Brien did not call them because counsel did not believe they would be helpful: [W]e thought that the family members would be the most effective. And there was other people-there was people who may have testified. We had other people under subpoena, other people available, but we felt at the time that they would not be helpful.
Some of the potential witnesses had information that would have been harmful. For example, DeYoung's former girlfriend Daphne Collins said that DeYoung told her he hated his parents and wanted them dead. And DeYoung's former best friend Cooper Etheridge said he was unsurprised that DeYoung killed his parents because DeYoung told Etheridge that he wanted to kill his parents and, in fact, had said “he wanted to kill everybody.”
Jones thought the testimony of DeYoung's family members, who were also related to the victims, was compelling. Jones did not know what else he could have presented that would have been as good as the family's testimony: You know, when you have got the family of the victims, which I have never had one before where the family of the victims were also kin to the defendant, but when you have those people coming in and asking the jury to spare their grandson's life, I don't know how much more compelling mitigation evidence you can get. I mean, I thought their-I thought they had a lot to say to the jury, and I don't know what else we could have presented, you know, that would have been as good as that. I mean, there was nothing that I think that I could have presented that I didn't that would have been helpful. I mean, I don't really feel that I left, you know, a three hundred hitter, so to speak, sitting on the bench and didn't call him to pinch-hit. I think we went with what we thought would work at the time.
Although Jones was more involved in the mitigation phase than O'Brien was, O'Brien talked to many potential witnesses. O'Brien talked with a number of DeYoung's teachers, including his college professors, but no one at the college said anything O'Brien or Jones thought would help. O'Brien also spoke to DeYoung's high school teachers and fellow students. The defense team interviewed some of DeYoung's Burger King co-workers. In particular, they investigated a co-worker named Jojo Moore, who other employees claimed dabbled in the occult. O'Brien and Jones “thought that perhaps maybe [Moore] had had some influence on [DeYoung], and we pursued that a little bit. That didn't go anywhere.” O'Brien and Jones discovered that “there was some evidence ... [that DeYoung] was selling pot out of the back of the Burger King.” The attorneys were hesitant to call co-workers who might know about that.
Attorney O'Brien spoke with DeYoung more than twenty times before trial. O'Brien also spoke with Nathan DeYoung and his girlfriend.FN9 O'Brien spoke with DeYoung's grandparents and uncles and aunts. When DeYoung's family members came to the DeYoung house to take care of matters involving Gary and Kathryn's estate, O'Brien interviewed them, got their addresses, and stayed in touch. O'Brien and Jones realized that DeYoung's grandparents “would be very significant in [the] case,” so O'Brien and Jones “started courting them right from the conceptual stages of the case.” Attorney O'Brien talked with the grandparents on the phone and went to see them in Iowa. At a December 1993 hearing, O'Brien told the state trial court he had traveled to Iowa, Ohio, and Michigan to meet with members of DeYoung's extended family.
FN9. O'Brien told the state trial court at a May 1995 pretrial hearing: We're trying to get [Nathan and his girlfriend Jennifer Dunlea] interested. But he will not cooperate at this point. We have asked him if he will come to my office, and Jennifer. If they will let the doctor talk to them. Maybe. We're not sure. We're going to think about it, you know. I mean, we can't force them to do it but we're moving forward in any event.
O'Brien told the state trial court that the defense team may not be able to get Nathan to testify, but “we have kind of laid it on the table to him, where we are. He knows what is going on.” O'Brien reiterated, “[W]e're trying to get the brother involved in a positive way. We haven't done it yet. We may never.”
E. The Penalty Phase
DeYoung's trial started on September 25, 1995. DeYoung was convicted on all three counts of murder. The State then called penalty-phase witnesses to testify about burglaries at the DeYoungs' church, at a DeYoung neighbor's home, and at two Burger King restaurants where DeYoung worked. Items stolen were found in DeYoung's room and in a storage bin DeYoung rented. The police found materials for designing and making pipe bombs in the DeYoungs' garage, in DeYoung's room and van, and in the box that was hidden with the footlocker.
The defense called five penalty-phase witnesses. Audrey Fridsma, DeYoung's maternal grandmother, testified she was conflicted because three of her family members were killed by another family member. Fridsma testified, “Andy has to pay for what he did to our daughter and family, and so one side of me says, considering the terrible nature of this crime, that the death penalty would be [an] appropriate measure of justice.” But on the other side, Fridsma did not know how she could live with herself if she asked, “even in the name of justice, to put [her] grandson to death.” Fridsma told the jury she “would lean towards life in prison without parole,” because she “would like the opportunity to be able to forgive my grandson, even if I don't feel like forgiving him right now.” A life sentence would give her that chance, but more importantly, would give DeYoung the opportunity to consider what he had done and ask for forgiveness from his family and from God.
Robert Ohberg was DeYoung's high school chemistry teacher. DeYoung was a good student who kept to himself and did not interact much with other students, though he got along with his lab partners well enough. DeYoung had no discipline problems, had a good sense of humor, and was “friendly enough if you initiated a conversation.” DeYoung never demonstrated any hostility, but was very somber and serious, and he rarely smiled.
DeYoung's paternal grandmother Letha DeYoung testified that she and her husband visited DeYoung's family about every two years, for three or four days at a time. DeYoung and his family got along fine, and DeYoung was respectful of his parents. Letha DeYoung corresponded regularly with DeYoung in jail and visited him twice. DeYoung wrote to his grandmother that he “was helping some inmates with GED tests, or with writing letters.” DeYoung wrote about his family, sent Letha DeYoung a poem about Gary DeYoung,FN10 and sent Nathan a birthday card and a graduation note.
FN10. Letha DeYoung read DeYoung's poem about his father: I had a father who talked with me, allowed me the right to disagree, to question and always answered me as well as he could and truthfully. He talked of adventures; horrors of war; of life, its meaning; what love was for; how each should always want to strive to improve the world to keep it alive. Stressed the duty we owe one another, to be aware each man is a brother. Words for laughter he also spoke a silly poem or a happy joke. Time goes on, some say I'm wise that I look at life with seeing eyes. My heart is open, my mind is free, I had a father who talked with me.
Letha DeYoung asked the jury for mercy for DeYoung, for “life not death.” Letha DeYoung said that “[o]ne of [her] reasons for asking [for a life sentence] is that God did not kill King David after David plotted the death of Uriah,” and she read that Bible passage to the jury. Letha DeYoung showed the jury childhood pictures of DeYoung. She testified about her memories of DeYoung and his personal characteristics as he grew up: I have happy memories of Andy. He was always pleasant. He was cooperative. He was friendly. He was willing to talk. He is verbal. Most of those memories are, of course, from before the teens, or early teens. I don't know what Andy was like in his home after he became involved in Satanism. Satanism does something to a person. One thing you have to break all ten commandments, and one of the commandments is honor your father and mother. I do not know what he was like, because the last time we visited in his home, he was 16. Did I notice anything unusual? I didn't. If he was disrespectful it is nothing [that] is registering in my memory. I will remember something that stands out. I do remember, and kind of hate to say this, but I do remember one time when he was disrespectful. But it was-it was at a family reunion. He was 18. It was 1992. I hate to say this, but I just want you to know I don't think Andy would have done-and it wasn't that bad-been rude if he had not been under the influence of Satanism. I knew he was under its influence.
Q. Miss DeYoung. A. I want to tell you about this incident. Q. Is it a fair statement that you think that if Andy did this it was because of the powers of evil? A. I think it is fair, yes. This is an incident I'm going to tell you about. Mr. Jones: Ma'am, I have no further questions. The Witness: Do you want me to talk, or do you want me to wait? Mr. Jones: No, ma'am.
On cross-examination, the State asked Letha DeYoung to continue: I am just trying to be honest. As I told you, I have very happy memories of Andy except this one incident at 18, and he was under the influence of Satanism at the time. They were all ready to go. They were in our driveway. We were going to say goodbye, and we were all standing around, his mom and his dad, and my husband and I, and I think an uncle and aunt, and I suppose cousins. Anyway, I don't know. I guess his mother moved something. They were-she opened the back of the van, and she moved something that he had nicely put in place, and he was-he got irritable about it, and to be honest, I was embarrassed. Gary was embarrassed. His mom didn't know what to say. But not one of us adults-I'm going to take the responsibility-not one of us adults corrected him. Now, it is possible that Gary corrected him as soon as they were out of sight of us, you understand. But that is the only time that I can remember Andy being rude ever.
I told you my memories are happy of him, and that didn't surprise me. I can tell you exactly what went through my mind at that time. It's because he is under the influence of Satanism. It does you no good, ever. But that's my only time. On redirect, Letha DeYoung said she loved DeYoung and would continue writing to him. She testified that, “[e]xcept for the grace of God, it could be any one of us” because “Satan doesn't come to one and not to the other [,] [although] I'm not saying that he will come to everyone.” Letha DeYoung did not know when DeYoung got into Satanism, but she guessed it was when he was fourteen. Defense counsel said he had no more questions. Letha DeYoung asked to show the jury other pictures, because she “wanted [the jurors] to see the difference in Andy after he was into Satanism.” She showed the pictures, and then made a final plea for life instead of death: I would like to have life for Andy instead of death for the sake of his brother. I don't think Nathan, his brother, came this morning. His brother is very quiet. Just has difficulty being in front of people. It's the only family member that Nathan has left. For that matter, if you take Andy's life, it will be-Nathan will be the only family member we have left. I do want you to think carefully. I was hoping that the State would use Andy's services. I think you know he is gifted academically. He would have to give his services without remuneration. But he is very good in computer programming. Also at one time he was good in the sciences, and I don't know if he could be educated so he could take part in research, find a cure for cancer, any other disease. There are so many that have to be cured. I don't know. But it is a reason that I would like to have Andy have life instead of death.
Judith Coffey was a neighbor of the DeYoungs. Coffey's daughter Amber was the same age as DeYoung, and the two were best friends from about age nine to thirteen or fourteen. Amber and DeYoung both loved animals, and they took care of animals together. They once found a baby squirrel that was hurt, and they tried to save it. Amber and DeYoung played at the creek: fishing, playing in the sand, catching salamanders and lizards and snakes. DeYoung treated the animals very well and “would never hurt anybody or anything. He was very, very compassionate.” Coffey never saw any cruelty in DeYoung, and one time when Nathan crushed a bug, DeYoung ran out and told him not to do that because “[t]hat's Amber's friend.” DeYoung and Amber got upset when Coffey's son killed bees.
DeYoung got along fine with his family as far as Coffey knew. Coffey saw no arguments or fights, or “any discontent at all.” DeYoung was “always very respectful” of his parents, “always said, yes, sir [or] no, sir,” and “just seemed very polite, and very kind.” DeYoung was not aggressive with the other neighborhood children. Most of the time, “if there was going to be a confrontation, [DeYoung] and Amber would leave.... They didn't seem to want to get into arguments, or fights, or anything. They seemed to shy away from them. I never saw any aggression at all.” Coffey “never saw ... anything but congeniality.”
On cross-examination, Coffey testified that DeYoung and Amber “drifted apart,” and DeYoung “got another crowd of kids to go around with,” including Cooper Etheridge and Wilbur Call. DeYoung, Etheridge, and Call went into Coffey's house when Coffey's garage was open and stole food from her refrigerator. After Coffey confronted the parents, Gary and Andrew DeYoung came to Coffey's house and DeYoung apologized. Afterward, DeYoung returned on his own, apologized again, and said he should have stopped the others because what they had done was not right.
DeYoung's paternal grandfather, Dr. Marvin DeYoung, testified that, for a number of reasons, he was against giving DeYoung a death sentence: Now, when it comes to sentencing, I think there are some things I would like to say. In the first place, I'm not in favor of the death sentence for Andy that's for sure. Now, they are selfish reasons, of course. He is my grandson. I don't want to see him put to death. But I think there are a lot of other reasons, too, why I say that. Andy is a different boy than the average-I use the term loosely-prisoner. Andy has a good mind. He has been raised in a Christian church. He has gone to Christian school, and he has been baptized. And baptism means that that's God's mark on him. And when God marks somebody that means something to God, and God doesn't forget that.
Dr. DeYoung testified that a life sentence would be better than death because DeYoung could “become a real useful servant of God”: [M]y plea for Andrew, for the jury, would be that if you give Andrew life in prison rather than death[,] I can see that he can become a real useful servant of God.... [The penal system] can be changed by somebody like Andrew, if he gives his life to Christ. He can become a real witness for the good news of salvation. Dr. DeYoung also testified that, although DeYoung had helped some people in the jail get their GEDs, he could do even better by bringing people to Christ. After presenting its witnesses, the defense put into evidence copies of DeYoung's college and grade-school records, and payroll records showing DeYoung was employed from June 1, 1989 to June 24, 1993.
The jury returned verdicts of death on all three counts. The jury found three statutory aggravating circumstances: (1) the murders occurred while DeYoung was committing another capital felony; (2) the murders were committed for money or things of monetary value; and (3) the murders were outrageously or wantonly vile, horrible, or inhuman in that they involved depravity of mind and aggravated battery to the victims before their deaths. The state trial court imposed death sentences on all three counts.
F. Hearing on Motion for New Trial
After trial, DeYoung received new counsel, Edwin Wilson, who had practiced law since 1977, had been a prosecutor, and had a general practice, including criminal defense.FN11 Wilson spent 77 hours reading the trial transcript and probably read it more than once. Wilson stated that “[t]he transcript looked pretty thorough to me.” He reviewed DeYoung's trial counsel's files, which were nearly 12,000 pages. FN11. Wilson represented DeYoung both in the motion for new trial proceedings before the state trial court and in his direct appeal. For brevity's sake, we refer to Wilson simply as DeYoung's appellate counsel.
Wilson spoke with DeYoung and discerned potential issues from his transcript review. DeYoung was concerned counsel had not presented testimony from his co-workers. Wilson and DeYoung corresponded often, but DeYoung never mentioned any dysfunction within his family. Wilson spoke with attorneys Jones and O'Brien, the DeYoungs' minister, and DeYoung's grandmother. Wilson was familiar with presenting ineffective assistance of counsel claims, and he intended to raise everything that appeared to be possible error, including any trial counsel performance issues.
Through Wilson, DeYoung filed a motion for new trial alleging, inter alia, that his trial counsel were ineffective because they: (1) failed to develop and present psychological evidence in the penalty phase; and (2) failed to develop and present other available mitigation evidence in the penalty phase. The state trial court held an evidentiary hearing.
Trial counsel Jones and O'Brien testified about their mitigation investigation and strategy, which is already outlined above. DeYoung gave Jones and O'Brien a list of at least twenty potential mitigation witnesses, including Kathy Albright, Kim Earlywine, and Judy Stevens, and DeYoung later submitted affidavits from Albright, Diane Butler, and Beth Fisher. Albright, a fellow manager at Burger King, stated that DeYoung “handled his authority well” at Burger King and had no problems relating to fellow employees or customers. DeYoung was quiet, did not have a lot of friends, and made no real attempt to associate with the other employees. DeYoung often “conveyed ... his desire to go beyond Burger King to what he perceived as something better.” Overall, DeYoung “was a good kid who seemed to know what he wanted out of life ... [and] had the intelligence to achieve it.” DeYoung “appeared to have the potential to be a contributing and successful member of society.”
Butler, who attended DeYoung's church, stated that DeYoung “had a brilliant mind” but lacked “simple social skills” and had trouble relating to and interacting with others. Butler developed a friendship with DeYoung by visiting him in jail while he awaited trial. Fisher, another co-worker, stated that DeYoung handled his managerial position well, “got along well with the crew and customers,” and “never posed any problems.” DeYoung visited Fisher's house on several occasions and played with Fisher's children. Fisher trusted DeYoung and found him to be pleasant and “a good kid.” DeYoung often discussed plans to open his own Burger King or a teen club. DeYoung had intelligence and common sense and was “a high achiever with a lot of potential.”
The state trial court denied DeYoung's motion for new trial. As to DeYoung's mitigation evidence claims, the state trial court found: (1) DeYoung was able to assist his attorneys in preparing for trial; (2) Dr. Messer did not see psychiatric factors as part of his defense; and (3) Dr. Shaffer's extensive testing and Dr. Messer's consultations produced no “useable psychological evidence for the defense.” The court found that the affidavits of Albright, Butler, and Fisher indicated their testimony would have been similar to that already presented by counsel in the penalty phase and would not have changed the outcome:
A review of the affidavits of Diane Butler, Kathy Albright, and Beth Fisher, submitted to supplement the record, indicates their relationship as church members and/or as fellow workers of DeYoung and their observations of him as intelligent, a good worker, and pleasant to be around, and of his hopes to improve his position in life. Similar testimony was presented at trial through a former teacher, a former neighbor, and three of DeYoung's grandparents. In view of the strong evidence connecting DeYoung to the murders of his parents and his sister, it is unlikely this cumulative evidence, if presented, would have changed the outcome of the trial.
G. Direct Appeal
DeYoung, through counsel Wilson, appealed, claiming he had ineffective trial counsel for failure to call Butler, Albright, and Fisher as witnesses in the penalty phase. The Georgia Supreme Court affirmed. DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157 (1997). On direct appeal Wilson did not include a claim of ineffective trial counsel for failure to investigate and introduce pyschological or any other mental health evidence.
The Georgia Supreme Court found no error in the state trial court's conclusion that DeYoung did not show ineffective counsel at the penalty phase from not calling Butler, Albright, and Fisher: [T]rial counsel extensively investigated DeYoung's background, interviewing his teachers, other students at his school, co-workers, friends and family members. DeYoung was examined by both a psychologist and a psychiatrist and the defense presented mitigation testimony from a former teacher, a former neighbor, and appellant's grandparents. Counsel elected not to offer Butler, Albright, and Fisher as mitigation witnesses since their testimony would have been cumulative.
Decisions regarding which witnesses to present are matters of trial strategy. When founded on legitimate evidentiary concerns, such decisions do not constitute ineffective assistance of counsel. The affidavits submitted at the motion for new trial reveal that Albright and Fisher were appellant's co-workers at Burger King. The trial court noted in its order denying the motion for new trial that the affidavits of these witnesses demonstrated that DeYoung was “intelligent, a good worker, and pleasant to be around, and [had] hopes to improve his position in life,” and their testimony would have been similar to that presented by the witnesses who did testify.
We conclude that none of the enumerated actions or omissions by counsel constitute ineffective assistance of counsel. Id. at 164-65 (citation omitted). The United States Supreme Court denied DeYoung's petition for certiorari. DeYoung v. Georgia, 523 U.S. 1141, 118 S.Ct. 1848, 140 L.Ed.2d 1097 (1998).
H. State Habeas Proceedings
DeYoung through new counsel petitioned for a writ of habeas corpus in state court.FN12 He claimed, inter alia, that Wilson was ineffective for not raising and proving more claims in his motion for new trial and direct appeal, especially the claim that his trial counsel were ineffective in their investigation and presentation of mitigation evidence. The state habeas court held an evidentiary hearing. DeYoung introduced documentary evidence and more than 90 affidavits as evidence of what appellate counsel Wilson and trial counsel Jones and O'Brien could have developed as mitigation evidence. FN13 We summarize the pertinent evidence.
FN12. During the state and federal habeas proceedings, DeYoung was represented by his present counsel. In the context of DeYoung's state habeas proceedings, we refer to the state trial-level court as the “state habeas court.” The judge who presided over DeYoung's state habeas proceedings was not the same judge who presided over DeYoung's trial.
FN13. Wilson, as DeYoung's attorney, did not raise ineffectiveness claims regarding mental health evidence on direct appeal or regarding other mitigation evidence (apart from the Butler, Albright, and Fisher claim) either in the motion for new trial or on direct appeal. Therefore, DeYoung had to raise those claims through the lens of Wilson's alleged ineffectiveness for failing to raise them either in the motion for new trial or on direct appeal.
1. DeYoung's New Mental Health Evidence
DeYoung's new mental health evidence mainly focused on showing that, with more evidence, his diagnosis was “schizotypal” personality disorder and dysthymia rather than his pretrial experts' diagnoses of narcissistic personality disorder and borderline personality disorder. Dr. Faye Sultan, a psychologist, interviewed DeYoung in prison and reviewed trial excerpts and 62 affidavits about DeYoung and his family. Dr. Sultan diagnosed DeYoung with (1) dysthymic disorder, indicating he “experience[d] chronically depressed mood,” loss of interest in life, decreased capacity to experience pleasure, social withdrawal, and feelings of inadequacy, irritability, and excessive anger; and (2) schizotypal personality disorder, indicating he suffered “a pervasive pattern of social and interpersonal deficits marked by acute discomfort with and reduced capacity for close relationships, cognitive and perceptual distortions, and eccentricities of behavior.”FN14 Dr. Sultan opined that these disorders (1) “severely compromised Mr. DeYoung's capacity to think clearly and to handle normal life stressors, to regulate his behavior, and to meet the requirements of daily living”; and (2) “rendered him extraordinarily vulnerable in interactions with individuals who were authoritarian, exploitative and manipulative in their manner of relating,” such as David Hagerty.
FN14. No one, however, diagnosed DeYoung as having schizophrenia (a psychosis) or any other psychosis.
DeYoung's state habeas counsel provided Dr. Messer and Dr. Shaffer with more records and information about DeYoung and his family. With this new information, both Dr. Messer and Dr. Shaffer concluded that “schizotypal personality [disorder] is the more appropriate diagnosis” for DeYoung. Dr. Messer opined that a diagnosis of dysthymia (a mood disorder) and schizotypal personality disorder “is entirely consistent with what I observed in Mr. DeYoung in 1994 and chronicled in my psychiatric report to [trial counsel] Mr. O'Brien.” However, “[n]either diagnosis suggests ... psychosis.” Dr. Shaffer also testified that his “initial diagnosis of Narcissistic Personality Disorder was made based on Andrew's suspiciousness, social withdrawal and alienation, and apparent grandiosity.” Dr. Shaffer added that, “[i]nterpreting these features now in light of ... Andrew's history and familial background, I find that Schizotypal Personality Disorder is an appropriate diagnosis.”
Dr. David Lisak, a clinical psychologist, never saw DeYoung but opined by affidavit that “there was substantial information available between 1993 and 1995 that incest might have occurred in the DeYoung family, and that Andrew DeYoung himself may have been victimized.”FN15 However, Dr. Lisak cited no evidence from DeYoung, his only surviving sibling Nathan, or anyone else stating that sexual abuse actually occurred to DeYoung or his siblings.
FN15. The information Dr. Lisak relied on for this “might have” happened opinion was: (1) parricide is a rare crime, and often the child-murderer was the victim of intra-family abuse; (2) DeYoung's parents and sister were stabbed two to three dozen times each, demonstrating “extreme rage or hatred”; (3) DeYoung had “withdrawn behavior”; (4) Marvin DeYoung (the grandfather) sexually abused two grandchildren and “made a sexual overture” toward his daughter; (5) acquaintances of DeYoung's family noted Gary and Sarah DeYoung were “always holding hands” and “always together,” and Sarah “drape[d] herself all over her father until she seemed much too old to do so”; (6) DeYoung once told an acquaintance “that he wished someone would take him away from his family because ‘his dad did stuff to them that he didn't like’ ”; and (7) witnesses reported “numerous oddities of the DeYoung family,” including a cluttered home, an “extremely socially dysfunctional” manner, and “no physical affection or emotional closeness” other than between Gary and Sarah.
2. Nathan DeYoung's Affidavit
In an affidavit, Nathan DeYoung stated he was not asked to testify in the penalty phase. Nathan said that giving penalty-phase testimony “would have been extremely difficult for me to do,” but “if I had been asked to do it, I would have said that I preferred the option of life without parole.” Nathan never mentioned any possible abuse within the DeYoung family. Nathan did not dispute investigator Stellmack's testimony that Stellmack spoke with Nathan's girlfriend and repeatedly left messages for Nathan and that Nathan did not return his calls.
3. The State's Mental Health Expert, Dr. Thomas Sachy
The State presented evidence that DeYoung did not have either dysthymia or schizotypal personality disorder. For example, after reviewing the same affidavits and records about DeYoung and his family, forensic neuropsychiatrist Dr. Thomas Sachy conducted a three-hour, in-person neuropsychiatric evaluation of DeYoung in April 2001. Dr. Sachy found “no gross evidence of cognitive dysfunction consistent with a Schizophreniform disorder.” Dr. Sachy saw no psychotic symptoms and found that DeYoung's “thought processes were linear and goal directed throughout the interview.” DeYoung displayed no evidence of “odd or magical thinking, unusual perceptions, suspiciousness or inappropriate affect/behavior.” DeYoung's reported leisure activities in prison demonstrated a “level of social interaction uncharacteristic of Schizotypal [Personality Disorder].” Importantly, DeYoung also denied any symptoms of depression and demonstrated no evidence of clinically significant depression. DeYoung said he missed his parents. FN16. DeYoung said his father “whupped him once or twice for some minor infraction, but ... didn't say that he was ever physically abused by his father.”
Dr. Sachy also stressed that DeYoung “did demonstrate signs of malingering behavior which only casts doubt upon the previous findings of Dr. Sultan.” FN17 Dr. Sachy concluded DeYoung was “in constant control of his behavior,” as evidenced by his “meticulous planning” of the murders. DeYoung had “no documented history of ... a psychiatric diagnosis” before the murders. Dr. Sachy expressly opined that DeYoung did not have either dysthymia or schizotypal personality disorder.FN18
FN17. Dr. Sachy also disagreed with Dr. Sultan's conclusion that DeYoung was “extraordinarily vulnerable in interactions with individuals who were authoritarian, exploitative and manipulative.” Dr. Sachy found no evidence of this in the record and, indeed found contrary evidence in DeYoung's correspondence with his attorneys, in which he requested documents or directed the attorneys to take certain actions or make certain investigations; in DeYoung's imperviousness to manipulation by police officers; and in DeYoung's leadership role in his burglaries with Hagerty and Marlow. Far from being vulnerable to authoritarian and manipulative people, DeYoung himself “is likely the manipulator.”
FN18. Dr. Sachy cited “the extensive evidence of Mr. DeYoung's clear thinking, socially appropriate behavior and successful functioning on a daily basis.” Dr. Sachy noted that DeYoung was able to perform the responsibilities of a manager at Burger King, to “co-exist with his family without documented behavior disturbances or acts of violence,” to compose lengthy treatises documenting records of past criminal activities and plans for future ones, to commit a number of burglaries without detection, to excel at school and in the ROTC program. Moreover, with respect to the murders themselves, DeYoung was able to: (1) “ ‘cleanse’ his room of incriminating materials prior to the murder[s] and hide them in a remote location”; (2) “murder three family members sequentially, without decompensating psychologically”; and (3) “return to his home after the murders and calmly and consistently tell the police that he had nothing to do with the deaths of his family.”
I. State Habeas Court Order
The state habeas court denied DeYoung's habeas petition. The state habeas court (1) summarily denied all claims that already had been decided on direct appeal, noting it had no authority to revisit those issues, (2) determined that DeYoung's new ineffective assistance claims were procedurally defaulted because they could have been raised by new appellate counsel Wilson in the motion for new trial and on direct appeal, and (3) found that, in any event, DeYoung had not shown deficient performance by either trial or appellate counsel or any prejudice.FN19
FN19. The state habeas court said: This court has carefully reviewed the trial record, the evidence adduced at the evidentiary hearing, the arguments of counsel, and the law applicable to DeYoung's claims. This court concludes that, even if this claim was not procedurally defaulted, which this court has ruled, trial counsel and appellate counsel performed both reasonably and effectively in their representation of DeYoung. DeYoung has failed to establish that the performance of trial counsel or appellate counsel fell below an objective standard of reasonableness or that DeYoung suffered actual prejudice as a result of any unreasonable performance by trial counsel or appellate counsel. DeYoung's claim of ineffective assistance of trial counsel and appellate counsel must fail both as a separate claim of relief and as cause to excuse the procedural default of issues raised for the first time in this habeas corpus proceeding.
DeYoung argued that his trial and appellate counsel's failure to preserve certain issues for habeas review constituted ineffective assistance of counsel so as to satisfy the cause prong of the cause and prejudice test for excusing procedural default. The state habeas court found that, even assuming that were true, “DeYoung has not shown that the identified instances of alleged ineffective assistance of counsel were of sufficient importance that they prejudiced his defense with regard to the verdict of guilty and sentence of death such that the otherwise valid procedural bar should be excused.” The state habeas court concluded that all DeYoung's ineffective trial counsel claims not raised in DeYoung's motion for new trial and on direct appeal were procedurally defaulted, and that DeYoung showed “[n]o cause or prejudice ... to excuse this procedural default.”
Alternatively, the state habeas court denied each ineffective assistance claim on the merits, as outlined below. The court rejected DeYoung's claim that Jones and O'Brien failed to conduct an adequate pretrial investigation into the State's case and potential defenses. The state habeas court found that: (1) Jones and O'Brien's strategy for the penalty phase was to rely on residual doubt and the testimony of DeYoung's family members; (2) for residual doubt, counsel tried to paint Hagerty as being in control on the night of the murders, and to suggest other persons may have been involved; (3) counsel considered presenting mental health evidence, but after consulting with Dr. Messer and Dr. Shaffer, counsel decided mental health evidence would not be helpful; (4) counsel considered presenting mitigation witnesses who were not members of DeYoung's family, but concluded for strategic purposes “that the family members would be the most effective witnesses in mitigation and that the other people available as witnesses would not be helpful, especially since some of the other potential witnesses could testify ... to matters that would do harm to [DeYoung's] case.”
The state habeas court concluded that the performance of DeYoung's trial counsel was not ineffective, stating that “[t]he mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.” The state habeas court noted that the issue of which witnesses to call, if any, “is the epitome of a strategic decision,” one that courts will seldom second-guess.
The state habeas court also rejected DeYoung's claim that Jones and O'Brien were ineffective for not presenting expert testimony on parricide. The state habeas court found trial counsel explored the possibility of presenting parricide testimony, and information on parricide was contained in trial counsel's files, but counsel told the state trial court that “they made a strategy decision not to pursue parricide as a theory in mitigation.” The state habeas court also noted that the jury consultant hired by DeYoung's counsel warned them it would be inappropriate to put forth evidence tending to malign the victims.
Based on the record, the state habeas court found that “trial counsel were fully aware of the concept of parricide but made a strategy decision to pursue a case of [residual] doubt and pleas for mercy from [DeYoung's] family members.” Moreover, the state habeas court determined that this strategic choice “was reasonable in light of the fact that no one, including Petitioner himself, gave any indication that any family dysfunction existed.” The strategy was also reasonable “in light of the fact that one of trial counsel's own experts suggested that they not malign the names of the victims, which would be required when presenting a theory of parricide to the jury.”
Because counsel made a reasonable strategic decision to forgo the use of parricide testimony, counsel's performance was not deficient. In any event, DeYoung could not show prejudice as to this claim. Similarly, the state habeas court denied DeYoung's claim that his trial counsel were ineffective for not presenting evidence of sexual abuse. DeYoung could not satisfy the performance prong because he failed to show he actually suffered any sexual abuse:
Petitioner's only alleged “evidence” of [sexual] abuse was the fact that Petitioner's father and sister had a close relationship; that Petitioner's family played a game that involved sitting on each others' laps; ... and that Petitioner once told someone that his father did “stuff” to him and his siblings that he did not like. Clearly, none of this “evidence” suggests, much less establishes, that Petitioner was sexually abused by his father. [ ] Finally, Petitioner himself has never testified that he was sexually abused by his father when he was growing up. Clearly, the best and most reliable evidence of any abuse would come from Petitioner himself. However, Petitioner has failed to so attest to any alleged abuse and no other evidence establishes any such abuse.
The state habeas court also found that DeYoung failed to establish the prejudice prong of this ineffective counsel sex-abuse claim.
The state habeas court also rejected DeYoung's claim that Jones and O'Brien failed to adequately investigate or present mental health testimony. The state habeas court found that DeYoung was evaluated before trial by Dr. Messer and Dr. Shaffer and DeYoung did not “report any significant dysfunction in his home, any unusual problems with his parents, ideas of reference, depression, or any other significant traits of schizotypal personality disorder or dysthymia.” Although trial counsel considered calling Dr. Messer in the penalty phase, Dr. Messer and Dr. Shaffer told counsel that DeYoung had “no real psychiatric defense”:
Although trial counsel considered, at one point, utilizing Dr. Messer during the penalty phase of trial, during a meeting with Petitioner's counsel, Dr. Messer, and Dr. Shaffer prior to trial, the doctors informed counsel that, despite their diagnosis of personality disorders, Petitioner had no real psychiatric defense. The doctors further reported that the best they could attest to was that Petitioner did not show any remorse, or have a normal grief reaction, but rather had the attitude of “I am annihilated or I'll annihilate them.”
The state habeas court determined that an ineffective assistance claim “must be evaluated based upon information known to counsel at the time.” And DeYoung himself did not personally exhibit behavior or symptoms of schizotypal personality disorder or dysthymia to Dr. Messer or Dr. Shaffer, who both interviewed him. The state trial court found that, at the time of trial, there was no cause for Jones and O'Brien to believe that further investigation of mental health evidence was needed:
Clearly, at the time of trial, Petitioner did not reveal any behavior or indications that he might suffer from traits of schizotypal personality disorder or dysthymia to Dr. Messer or Shaffer. Additionally, as noted above, the myriad of family and friends contacted by the defense team did not give counsel any reason to believe that Drs. Messer or Shaffer needed any additional information or background about Petitioner's childhood; rather, the family and friends reported that Petitioner belonged to a quiet, religious, middle-class family who did not share much of their lives with outsiders. Thus, there were no indications to trial counsel nor to Drs. Messer or Shaffer that a further investigation into Petitioner's background was warranted, or that Petitioner might suffer from a mental ailment more useful to a defense or mitigation phase of a death penalty case than those diagnosed by the doctors.
DeYoung had “a responsibility to assist in his defense and provide honest and accurate information to his counsel and defense team.” Because DeYoung did not indicate any traits of schizotypal personality disorder or dysthymia to Dr. Messer or Dr. Shaffer, Jones and O'Brien “were not unreasonable to rely upon their experts' opinions that [DeYoung] was not laboring under a psychological disorder or disease that should be presented to the jury in mitigation.” FN20. The state habeas court also stated that (1) DeYoung had no previous history of mental illness or mental health treatment, (2) no potential witness interviewed by the defense team indicated DeYoung might have a mental illness, and (3) the evaluations conducted by Dr. Messer and Dr. Shaffer failed to reveal any mental infirmities they thought would be useful to present. The state habeas court determined that the affidavits of Dr. Messer and Dr. Shaffer, reflecting different opinions based on information not available to them before trial, were based on hindsight and had no probative value.
The state habeas court “place[d] no weight” on Dr. Sultan's testimony in her affidavits. The state trial court concluded that Jones and O'Brien, “[w]hen making their decision not to present mental health evidence to the jury, ... made an appropriate and reasonable decision based upon information available to them at the time.”
The state habeas court also denied DeYoung's claim that Jones and O'Brien failed to reasonably investigate and present other mitigation evidence. The state habeas court noted at the outset that this claim “relies exclusively upon affidavits secured by Petitioner's current counsel that tell tales of Petitioner's parents' and grandparents' lives and neighbors', friends' and acquaintances' impressions of Petitioner's life and the lives of Petitioner's siblings.” The state habeas court found “that an overwhelming amount of the testimony contained within these affidavits is inadmissible,” and the court “disregard[ed] those portions of the affidavits that contain inadmissible evidence.” The state habeas court noted that the mere fact that other testimony or witnesses might have been available does not establish ineffective assistance of counsel.
DeYoung himself presented counsel and Stellmack with names of potential mitigation witnesses, all of whom Stellmack contacted, or tried to contact. The state habeas court found that “trial counsel contacted or attempted to contact a tremendous number of potential witnesses for use during the penalty phase of trial.” The state habeas court determined that the “overwhelming majority of the witnesses now presented by Petitioner via affidavit were not known by trial counsel prior to trial.”
The state habeas court found that Jones and O'Brien “conducted a full and reasonable investigation into potential mitigation witnesses,” and they “were not unreasonable for failing to uncover the names of additional possible witnesses that were unknown to them at the time of trial.” Moreover, “it was reasonable for trial counsel to believe that Petitioner had given them all of the names of possible witnesses that might have the ability to assist during the mitigation phase of trial.” The state habeas court determined that: It would be patently unreasonable to expect counsel to go on a wild goose chase for names of individuals tangential to Petitioner's life from whom a slim possibility of useful and mitigating information might arise. Rather, it was much more reasonable to rely upon Petitioner to supply defense counsel with the names of those people most likely to have information about Petitioner's own life and character. Therefore, trial counsel was not ineffective for failing to discover alleged potential mitigation witnesses of whom they were not aware prior to trial, and counsel's performance in discovering potential mitigation witnesses was not deficient.
Additionally, the state habeas court found that those potential witnesses contacted by DeYoung's trial counsel who later submitted affidavits in the habeas proceedings “were not as forthcoming with their information and knowledge prior to trial as they seem to have been for Petitioner's habeas corpus counsel.” Accordingly, DeYoung did not show that the evidence submitted in the affidavits was available at the time of trial, and Jones and O'Brien's performance was not deficient for not eliciting this new evidence.
Importantly too, the state habeas court found that many of the witnesses whom DeYoung's trial counsel interviewed and later submitted affidavits would have revealed information harmful to DeYoung's case. The state habeas court cited witnesses Cooper Etheridge and Daphne Collins, who “would have testified that [DeYoung] talked about hating his parents and family and wanting to kill them.” The state habeas court found that “while these witnesses may now have information that could have been beneficial to Petitioner's case, the damage that would have been done by this other information far outweighs the benefits to the point that no reasonable attorney would have risked presenting such individuals as witnesses on Petitioner's behalf.” Thus, the state habeas court concluded “it was entirely reasonable for counsel to not present witnesses such as Mr. Etheridge and Ms. Collins as witnesses on petitioner's behalf.”
As to DeYoung's claim that his trial counsel failed to call Nathan in the penalty phase, the state habeas court noted that: (1) trial counsel testified during pretrial proceedings that “extensive efforts were made to contact Nathan, to no avail,” and that Stellmack called “regularly,” about three times per day, but reached an answering machine; (2) at the habeas hearing, Stellmack testified he tried more than once to contact Nathan; (3) after Nathan moved out of Harmon's house, Stellmack tried to speak with Nathan several times, but was forced to leave messages; and (4) Nathan never returned Stellmack's phone calls. The state habeas court found that “although trial counsel made reasonable attempts to contact Nathan and to speak with him in an effort to possibly secure his testimony, Nathan clearly had no intention of assisting the defense in Petitioner's case.” Because Jones and O'Brien could not force Nathan to speak with them, their performance was not deficient.
Alternatively, the state habeas court concluded DeYoung could not show prejudice from any failure to call Nathan because DeYoung “failed to establish what types of information trial counsel could have learned from Nathan DeYoung if he had spoken with counsel prior to trial that would have affected the outcome of the trial.” As to potential issues not raised in the motion for new trial or on direct appeal, the state habeas court found that appellate counsel Wilson was in contact with DeYoung throughout the representation, including through written correspondence, and none of DeYoung's correspondence with Wilson mentioned any dysfunction within DeYoung's family.
The state habeas court determined DeYoung did not show that Wilson failed to present any “significant and obvious issues on appeal.” The state habeas court found that Wilson's “investigation into and preparation for [DeYoung's] appeal, and [Wilson's] winnowing down of appealable issues to the 18 ‘significant and obvious' issues that he raised at the motion for new trial and on appeal, constitute effective performance.” DeYoung did not show he was prejudiced by Wilson's conduct because “raising any additional instances of ineffective assistance of trial counsel would not have been successful on appeal.” As a result, the state court concluded, “DeYoung's claim of ineffective assistance of appellate counsel must fail both as a separate claim of relief and as cause to excuse the procedural default of issues raised for the first time in this habeas corpus proceeding.”
J. State Habeas Appeal
On January 20, 2004, the Georgia Supreme Court denied DeYoung's application for a certificate of probable cause to appeal. The United States Supreme Court denied DeYoung's petition for certiorari. DeYoung v. Schofield, 543 U.S. 892, 125 S.Ct. 168, 160 L.Ed.2d 155 (2004).
K. Federal Habeas Proceedings
In May 2004, DeYoung filed his § 2254 petition, which alleged, inter alia, claims of ineffective trial and appellate counsel. In June 2007, the district court denied as procedurally barred all the claims DeYoung did not raise in his motion for new trial or on direct appeal.
In August 2007, the district court issued a final order finding DeYoung was not entitled to federal habeas relief or an evidentiary hearing. The district court found trial counsel were not ineffective in investigating and presenting mitigation evidence and, thus, appellate counsel was not ineffective in failing to raise this issue in the new trial motion or on direct appeal. The district court granted a certificate of appealability (“COA”) on DeYoung's ineffective trial and appellate counsel claims.FN21
FN21. The district court also granted a COA as to ten other issues, including the district court's denial of DeYoung's motion for an evidentiary hearing. We find no error in the denial of an evidentiary hearing and affirm on that issue. DeYoung makes no arguments as to the other issues for which he was granted a COA. DeYoung therefore waives those issues. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir.2005) (stating that issues not raised in party's initial brief are deemed waived).
II. STANDARD OF REVIEW
We review the district court's denial of DeYoung's § 2254 federal habeas petition de novo. Cummings v. Sec'y for the Dep't of Corr., 588 F.3d 1331, 1355 (11th Cir.2009), petition for cert. filed (U.S. Jun. 7, 2010) (No. 09-11289). However, we, like the district court, “owe deference to the final state habeas judgment.” Reed v. Sec'y, Fla. Dep't of Corr., 593 F.3d 1217, 1239 (11th Cir.2010), petition for cert. filed (U.S. Jun. 7, 2010) (No. 09-11314). This Court's review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Windom v. Sec'y, Dep't of Corr., 578 F.3d 1227, 1247 (11th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 2367, 176 L.Ed.2d 566 (2010).
Under AEDPA's highly deferential standard for reviewing state court judgments, a federal court may not grant habeas relief on claims previously adjudicated on the merits by a state court unless the state court adjudication resulted in a decision that was (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Id. (quotation marks omitted); see 28 U.S.C. § 2254(d).
On appeal, DeYoung argues the district court erred in denying his § 2254 petition because his trial counsel were ineffective in the penalty phase and therefore his appellate counsel was ineffective for not raising this issue in his new trial motion and on direct appeal.FN22 First we discuss the governing legal standards.
FN22. Both the state habeas court and the district court determined that DeYoung's claims of ineffective trial counsel performance (except for trial counsel's failure to call Butler, Albright, and Fisher as witnesses) were procedurally barred because appellate counsel Wilson had not raised them in the new trial motion and on direct appeal. Those courts alternatively denied DeYoung's trial counsel claims on the merits. Although an alternative merits holding will not obviate a procedural bar, Philmore v. McNeil, 575 F.3d 1251, 1260 (11th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 1884, 176 L.Ed.2d 370 (U.S. Mar. 22, 2010), we find it easier not to address the procedural bar issue here because: (1) DeYoung points out that Wilson was representing him at the new trial and direct appeal stage where he had a constitutional right to counsel and argues Wilson's ineffectiveness is cause to excuse the procedural bar; and (2) to determine whether Wilson rendered ineffective assistance in omitting the ineffective trial counsel claims in the motion for new trial or on direct appeal, we would review the merits of the omitted claims. Id. at 1264-65. Rather than wade through these complexities, we discuss the merits of DeYoung's trial counsel claims, as that alone resolves the case.
A. Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which a defendant must show both (1) “that counsel's performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
As to counsel's performance, “the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.” Bobby v. Van Hook, 558 U.S. ----, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009) (quotation marks omitted). Thus, to establish deficient performance, a defendant must show that his counsel's conduct fell “ ‘below an objective standard of reasonableness' in light of ‘prevailing professional norms' ” at the time the representation took place. Id. at 16, 130 S.Ct. 13 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65). In assessing the reasonableness of counsel's performance, courts 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, 104 S.Ct. at 2065 (quotation marks omitted). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. at 2066. Reed, 593 F.3d at 1240.
In judging trial counsel's investigation in preparation for the penalty phase of a capital trial, “hindsight is discounted by pegging adequacy to ‘counsel's perspective at the time’ investigative decisions are made, and by giving a ‘heavy measure of deference to counsel's judgments.’ ” Rompilla v. Beard, 545 U.S. 374, 380-81, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (citation omitted). Counsel has “no absolute duty to investigate particular facts or a certain line of defense,” although in some circumstances, “a complete failure to investigate may constitute deficient performance of counsel.” Parker v. Sec'y for the Dep't of Corr., 331 F.3d 764, 787 (11th Cir.2003); see also Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.2001) (noting that a “failure to investigate can be deficient performance in a capital case when counsel totally fails to inquire into the defendant's past or present behavior or life history”). However, “counsel need not always investigate before pursuing or not pursuing a line of defense.... [C]ounsel is not required to pursue every path until it bears fruit or until all hope withers.” Chandler v. United States, 218 F.3d 1305, 1318 (11th Cir.2000) ( en banc) (quotation marks omitted).
The prejudice prong requires a showing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. For penalty-phase ineffectiveness claims, the prejudice question “is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069.
In considering whether prejudice exists, courts must look at all the available mitigation evidence-both the trial evidence and the evidence adduced during postconviction proceedings-and then re-weigh that evidence against the evidence in aggravation. Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 1515, 146 L.E.2d 389 (2000). In that process, what matters is not merely the number of aggravating or mitigating factors, but their weight. Van Hook, 130 S.Ct. at 20. Reed, 593 F.3d at 1240-41.
DeYoung raises a host of alleged deficiencies in his trial counsel's performance, which we divide into three categories: (1) investigation and presentation of evidence of DeYoung's family background and social history; (2) investigation, preparation, and presentation of mental health experts and evidence; and (3) implementation of trial counsel's chosen penalty-phase strategies of residual doubt and mercy pleas from DeYoung's family members.
B. Performance Prong: Family Background/Social History
DeYoung contends his trial counsel Jones and O'Brien were ineffective for not adequately investigating and presenting evidence of DeYoung's family background and social history. The state habeas court's conclusion that DeYoung did not satisfy the performance prong of the ineffective assistance test is not contrary to clearly established federal law, does not involve an unreasonable application of clearly established federal law, and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
First, Jones and O'Brien conducted an extensive investigation into possible mitigation evidence. Both attorneys interviewed potential witnesses. O'Brien traveled to Iowa, Ohio, and Michigan to talk to members of DeYoung's family. Trial counsel retained investigator Stellmack and mitigation specialist Leonard. Stellmack subpoenaed DeYoung's school and work records and compiled a list of more than forty possible mitigation witnesses, including DeYoung's relatives, fellow church members, co-workers, friends, neighbors, and college and high school teachers. Someone from the defense team tried to contact every person on the list.FN23 DeYoung's counsel argues that some evidence suggests the possibility that DeYoung might have been incestuously abused. What counsel ignores is that neither DeYoung, nor anyone else for that matter, ever testified that DeYoung was abused by either parent.
FN23. DeYoung argues that Jones and O'Brien “exaggerated” the extent of their discussions with DeYoung's family. However, after reviewing the state court record, we conclude that the state habeas court's findings on the extent of counsel's investigation were not unreasonable in light of the evidence presented. See 28 U.S.C. § 2254(d)(2).
Second, after having DeYoung's mental health evaluated and interviewing numerous possible mitigation witnesses, trial counsel made strategic choices that shaped the course of the final preparation. Before Jones was appointed to represent DeYoung, defense counsel's penalty-phase strategy was “to have the psychiatrist talk about parricide and the dysfunction in the family in situations like this.” But when Jones joined the defense team as lead counsel, he took a different approach. Jones's penalty-phase strategy was two-fold: to argue residual doubt and to call family members to plead for a merciful sentence. Jones believed the testimony of DeYoung's family members would be particularly compelling because they were also related to the murdered victims in the case:
You know, when you have got the family of the victims ... coming in and asking the jury to spare their grandson's life, I don't know how much more compelling mitigation evidence you can get.... ... I don't know what else we could have presented ... that would have been as good as that.
Jones testified that “we went with what we thought would work at the time.” Trial counsel investigated several avenues of potential mitigation, but Jones wanted to avoid a mitigation approach that would involve “trying to trash [DeYoung's] parents” because it might alienate the grandparents, whom Jones saw as potentially the most valuable witnesses. FN24. Moreover, as DeYoung's parents and sister were the victims in the case, and his brother an intended victim, it is highly possible that a mitigation strategy that included evidence critical of DeYoung's family and upbringing might have alienated the jury and hurt his cause.
Third, as the state habeas court found, many of the witnesses trial counsel contacted, including several who later furnished affidavits to state habeas counsel, were reluctant to testify at trial. After interviewing potential witnesses, Stellmack told O'Brien that “no one is exactly jumping at the idea of testifying on [DeYoung's] behalf.” Stellmack testified, “People were pretty reluctant to even become involved or be associated with the case.”
Even DeYoung's grandparents were initially reluctant to testify. Nathan DeYoung never returned Stellmack's calls, and Nathan's girlfriend told Stellmack that Nathan had no interest in testifying. DeYoung's minister, Chris Devos, was “hesitant to discuss a lot of details,” and informed Stellmack only “what you would expect from a pastor,” that is, that the DeYoungs “attended his church, they came to church on a regular basis, they seemed like a nice family.” Stellmack tried to interview DeYoung's co-workers, but except for Kathy Albright, they refused to talk to him. Stellmack testified that “it was really difficult to find anyone, either in the church group or in the neighborhood[,] that could really shed a lot of light on the family dynamics of the DeYoung family.”
Moreover, some of the witnesses who eventually provided affidavits to state habeas counsel had information that was harmful. For example, there was evidence that DeYoung sold marijuana at the Burger King where he worked, and Jones and O'Brien were hesitant to call DeYoung's co-workers who might be able to testify to that. And O'Brien was concerned that if DeYoung's college professors testified about a decline in DeYoung's academic performance around the time of the murders, the jury might find that testimony “suggestive of the fact that something was going on.” Daphne Collins told defense counsel that DeYoung told her he hated his parents and wanted them dead, and Cooper Etheridge told defense counsel he was not surprised by news of the murders because DeYoung had mentioned killing his parents and, in fact, said that “he wanted to kill everybody.”
Given the record in this case, the state habeas court's decision that DeYoung's trial counsel's performance was not deficient is consistent with established Supreme Court precedent. Counsel investigated different lines of mitigation and then made a strategic choice to employ residual doubt and family plea for mercy approaches in the penalty phase. Again, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. Under the circumstances, counsel's choices, and their investigation, fell well within “the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. at 2066.
DeYoung's attempts to analogize this situation to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), are unavailing. In Wiggins, trial counsel performed no investigation into the defendant's personal history other than reading a one-page summary in the presentence investigation report (“PSI”) and obtaining department of social services (“DSS”) records. Wiggins, 539 U.S. at 523-24, 123 S.Ct. at 2536. Moreover, Wiggins's counsel did not investigate Wiggins's childhood, even though: (1) the PSI noted Wiggins's “misery as a youth,” quoted Wiggins's own description of his background as “disgusting,” and observed that Wiggins spent most of his life in foster care; and (2) the DSS records revealed Wiggins's mother “was a chronic alcoholic; Wiggins was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food.” Id. at 523-25, 123 S.Ct. at 2536-37. Wiggins's counsel discovered no evidence suggesting that further investigation would be fruitless or a mitigation case counterproductive, and the record showed that counsel's “failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” Id. at 525-26, 123 S.Ct. at 2537. And in Williams, the defendant's trial counsel did not begin to prepare for the penalty phase until a week before trial, and “failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records.” Williams, 529 U.S. at 395, 120 S.Ct. at 1514.
The present case is easily distinguishable from Wiggins and Williams, as Jones and O'Brien conducted an extensive investigation and made express strategic choices. This case is more akin to Bobby v. Van Hook, ---U.S. ----, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009), in which the Supreme Court recognized a point of diminishing returns in the broad search for mitigating evidence:
Despite all the mitigating evidence the defense did present, Van Hook and the Court of Appeals fault his counsel for failing to find more. What his counsel did discover, the argument goes, gave them “reason to suspect that much worse details existed,” and that suspicion should have prompted them to interview other family members-his stepsister, two uncles, and two aunts-as well as a psychiatrist who once treated his mother, all of whom “could have helped his counsel narrate the true story of Van Hook's childhood experiences.” But there comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important duties. The ABA Standards prevailing at the time called for Van Hook's counsel to cover several broad categories of mitigating evidence, which they did. And given all the evidence they unearthed from those closest to Van Hook's upbringing and the experts who reviewed his history, it was not unreasonable for his counsel not to identify and interview every other living family member or every therapist who once treated his parents. This is not a case in which the defendant's attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S., at 525, 123 S.Ct. 2527, 156 L.Ed.2d 471.... It is instead a case, like Strickland itself, in which defense counsel's “decision not to seek more” mitigating evidence from the defendant's background “than was already in hand” fell “well within the range of professionally reasonable judgments.” Van Hook, 130 S.Ct. at 19 (citations omitted).
C. Performance Prong: Mental Health Evidence
DeYoung also argues Jones and O'Brien were ineffective in failing to adequately investigate mental health issues, prepare mental health experts, and present mental health expert testimony. The state habeas court's denial of this claim is not contrary to, or an unreasonable application of, Supreme Court precedent. Nor is it based on an unreasonable determination of the facts.
First, almost all of the evidence that DeYoung now claims his mental health experts needed was available to DeYoung himself, yet DeYoung did not reveal it to his counsel or the two pretrial mental health experts, Drs. Messer and Shaffer. “In evaluating the reasonableness of a defense attorney's investigation, we weigh heavily the information provided by the defendant.” Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 1336, 173 L.Ed.2d 607 (2009). Indeed, a defense attorney “does not render ineffective assistance by failing to discover and develop evidence of childhood abuse that his client does not mention to him.” Id. Here, there is no evidence that DeYoung mentioned to his trial or appellate counsel or to any mental health experts (before trial or even afterward) that he had any family history of mental illness or that there was significant internal strife or dysfunction in his family. Two mental health experts thoroughly evaluated DeYoung in person before trial and did not diagnose him with the mental infirmities DeYoung now claims he suffered. Importantly, to date DeYoung has never indicated he suffered any sexual or physical abuse, nor has anyone witnessed such abuse of DeYoung.
Second, as with the family background and social history evidence, DeYoung's counsel performed a reasonable investigation into mental health issues. Jones and O'Brien retained Dr. Messer and Dr. Shaffer, who each conducted an independent evaluation supported by document review and one or more in-person clinical interviews. Jones and O'Brien met with Drs. Messer and Shaffer to discuss their diagnoses before deciding whether to present a mental health-based defense. Jones and O'Brien decided not to present mental health evidence at the penalty phase because, as Jones testified, they determined “it was not helpful.”
Although DeYoung now contends that trial and appellate counsel should have provided more family information to the mental health experts, and that that information would have changed their diagnoses, the state habeas court's conclusion that trial counsel reasonably investigated DeYoung's family background and social history is consistent with clearly established federal law and is not unreasonable in light of the facts. This is especially accurate given that DeYoung never gave any indication of sexual or physical abuse. Given the many witnesses trial counsel or the investigator interviewed, the mere fact that additional family and social history witnesses have now been discovered does not make trial or appellate counsel ineffective. The record also supports the state habeas court's findings that a number of the witnesses who gave affidavits to habeas counsel were not as forthcoming prior to trial and that a significant portion of the testimony in the affidavits was inadmissible (such as for being pure hearsay).
Third, DeYoung does not argue that his trial counsel should have presented mental health expert testimony as to Dr. Messer's and Dr. Shaffer's original diagnoses of borderline personality disorder and narcissistic personality disorder. He argues only that his trial and appellate counsel should have discovered and presented evidence that DeYoung had schizotypal personality disorder and dysthymia (the subsequent diagnosis). However, even if trial counsel had presented such testimony, it would have opened the door to harmful evidence, such as: (1) the original diagnoses of Dr. Messer and Dr. Shaffer, which disorders have been found not to be mitigating, see, e.g., Reed, 593 F.3d at 1248 (concluding psychologist's diagnosis of defendant with antisocial personality disorder and narcissistic personality disorder was harmful instead of mitigating); (2) Dr. Sachy's testimony that DeYoung had no personality disorder and was malingering (which would have reinforced the State's picture of DeYoung as having a cunning and manipulative criminal mind); and (3) other characteristics of schizotypal personality disorder itself, including peculiar or eccentric behavior and lack of close friends or confidants other than first-degree relatives (accentuating that DeYoung lacked close friends and chose to kill for financial gain even those few persons close to him).
Fourth, DeYoung provides no evidence indicating trial counsel had a reasonable basis to suspect, at the time, that providing Dr. Messer and Dr. Shaffer with more background information on DeYoung was likely to change their diagnoses. See Wiggins, 539 U.S. at 523, 123 S.Ct. at 2536 (noting that inquiry into reasonableness of counsel's performance “includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time,” and that “[e]very effort [must] be made to eliminate the distorting effects of hindsight” (alterations in original) (quotation marks omitted)); see also Reed, 593 F.3d at 1242 (“[T]he mere fact a defendant can find, years after the fact, a mental health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial.”).
D. Performance Prong: Penalty Phase Strategy
DeYoung makes several allegations of deficient performance by his trial counsel in implementing their chosen penalty-phase strategy of presenting pleas for mercy from DeYoung's family members and arguing residual doubt. Specifically, DeYoung argues trial counsel performed in an objectively unreasonable manner by choosing: (1) to call grandmother Letha DeYoung to testify; (2) not to call Nathan DeYoung to testify; (3) not to present letters from DeYoung's extended family members; (4) not to adequately attack Hagerty as a violent man who had a greater role in the murders than he admitted; and (5) not to refute the State's footlocker evidence. Having reviewed DeYoung's arguments and the record, we conclude that, other than the claim regarding Nathan DeYoung, each of DeYoung's arguments as to the alleged deficiency of trial counsel's penalty-phase presentation constitutes an improper attempt to second-guess a reasonable strategic choice of trial counsel. See Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir.2009) (“Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.” (brackets omitted)), cert. denied, 78 U.S.L.W. 3714 (U.S. Jun. 7, 2010). This strategy was reasonable because: (1) having the parents of the murdered victims plead for the defendant's life is powerful mitigating testimony; and (2) as we have noted before in several cases, “creating lingering or residual doubt over a defendant's guilt is not only a reasonable strategy, but is perhaps the most effective strategy to employ at sentencing.” Ward v. Hall, 592 F.3d 1144, 1170 (11th Cir.2010) (quotation marks and brackets omitted). The state habeas court's rejection of these claims was not contrary to or based on an unreasonable application of clearly established federal law.FN25
FN25. DeYoung argues trial counsel performed deficiently in calling Letha DeYoung because her testimony introduced prejudicial, damaging evidence of DeYoung's alleged Satanism. In their penalty-phase closing arguments, neither the State nor the defense mentioned Satanism or Letha DeYoung's opinion that it drove DeYoung to commit the murders. Further, there was already some evidence of Satanism in the trial. In DeYoung's police interview, a recording of which was played for the jury, DeYoung was asked whether he was a Satanist or read books on Satanism. DeYoung admitted he “ha[d] some books on witchcraft and stuff in [his] room” but, as to his belief in Satan, stated, “I figure evil will probably win in the end. But I don't really have a preference. I mean, I don't strive for either one. I just kind of take things as they come.” In any event, it was not objectively unreasonable for trial counsel to decide that the risk associated with calling Letha DeYoung to testify was outweighed by the potential benefit, given her fervent desire that DeYoung not be executed and that she was the mother of one murdered victim and the grandmother of another murdered victim.
As to not calling Nathan to testify in the penalty phase, the state habeas court found that Jones and O'Brien made reasonable efforts to contact Nathan to secure his testimony, but Nathan did not return their calls, indicating he “had no intention of assisting the defense in Petitioner's case.” The evidence in the state habeas proceeding amply supported this finding.
E. Prejudice Prong
Even if DeYoung could show deficient performance by his trial or appellate counsel, he must still show prejudice, that is, that “there is a reasonable probability that, absent the errors, the [jury] ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. The state habeas court concluded DeYoung did not satisfy his prejudice burden. This conclusion is not contrary to established federal law, an unreasonable application of established federal law, or based on an unreasonable determination of the facts in light of the evidence.
The weight of aggravation evidence in this case is immense. DeYoung stands convicted of a carefully planned and premeditated triple murder of his mother, father, and fourteen-year-old sister. The method of killing was a study in brutality. Gary and Kathryn DeYoung were attacked in their beds. Each victim suffered more than three dozen slashing, stabbing, cutting, and chopping wounds. In some areas of the victims' bodies, such as the back of Sarah's neck, the knife wounds overlapped so much it was impossible to determine how many individual wounds they suffered. Many of the wounds were inflicted while the victims were lying down and trying to move around or roll away. Sarah, Gary, and Kathryn DeYoung died of blood loss, shock, and interrupted heart functioning.
The total mitigating evidence pales in comparison. Although the categories of mitigating evidence DeYoung argues should have been presented (e.g., a different mental illness, emotionally distant and oppressive upbringing, and sexual abuse) seem substantial, the actual evidence he submits to comprise those categories is weak or nonexistent. For example, there is no evidence DeYoung was sexually abused. DeYoung himself never said so, nor did he report it to any of the four doctors who examined him. Nor has Nathan ever even implied, much less stated, that any sexual abuse occurred. DeYoung offers no evidence of sexual abuse.
As to mental illness, DeYoung's mental health expert Dr. Sultan opined that DeYoung suffers from schizotypal personality disorder and dysthymia, which compromised DeYoung's judgment and ability to function interpersonally. The state habeas court wholly discredited Dr. Sultan's testimony. In any event, this diagnosis was countered not only by the testimony of the State's mental health expert, Dr. Sachy (who said DeYoung did not have these disorders), but also by, inter alia, the facts that: (1) Dr. Sultan's evaluation of DeYoung took place seven years after the murders and five years after DeYoung's trial; (2) Dr. Messer and Dr. Shaffer both evaluated DeYoung before trial and neither diagnosed him with these disorders or found that he had any significant psychiatric defenses; and (3) before the murders, DeYoung was capable of functioning well enough to attend college, to be a manager at Burger King, and to have relationships with friends and girlfriends. And, as explained earlier, such mental health evidence would have opened the door to harmful testimony which may well have eliminated any mitigating weight in the overall equation.
As to the testimony about the DeYoung family's social dysfunction, DeYoung proffered evidence, from various acquaintances and other sources, suggesting that the DeYoungs were socially inept, private people who showed little emotion; that Gary DeYoung was hyper-rational, judgmental, authoritarian, obsessive, and emotionally distant; that Kathryn DeYoung was isolated and submissive; that Gary and Kathryn DeYoung showed DeYoung little affection, and afforded him little freedom or control; and that the DeYoungs' home was extremely cluttered. We note that DeYoung himself never said anything to confirm these opinions. DeYoung in fact said he missed his parents. Other witnesses contradicted this picture painted by the habeas affidavits. In any event, all of the family dysfunction testimony, even taken together and credited as true, is weak and a far cry from the horrific childhood circumstances that have been held sufficient to satisfy the prejudice prong in a capital case. See Rompilla v. Beard, 545 U.S. at 391-92, 125 S.Ct. at 2468-69 (stating that overlooked mitigation evidence included evidence that Rompilla's parents were alcoholics, his father frequently beat his mother and bragged about his infidelity, his father beat Rompilla and locked him and his brother in an excrement-filled dog pen, Rompilla slept in an unheated attic, and he was given no clothes and went to school in rags); Wiggins, 539 U.S. at 534-35, 123 S.Ct. at 2542 (noting evidence, inter alia, of “severe privation and abuse in the first six years of ... life,” and “physical torment, sexual molestation, and repeated rape during ... subsequent years in foster care”); Williams, 529 U.S. at 395, 120 S.Ct. at 1514 (finding counsel failed to put on graphic evidence of defendant's “nightmarish childhood” that included his parents' imprisonment for criminal neglect of him and his siblings, his severe and frequent beatings by his father, and his commitment to an abusive foster home).
Having carefully reviewed the record, we conclude that the state habeas court reasonably found that even if DeYoung had offered, and the state trial court had admitted, all the mitigation evidence DeYoung submitted in the state habeas proceeding, it would not have been sufficient to raise a reasonable probability of a different sentence in light of the strong evidence in aggravation. DeYoung therefore has not satisfied the prejudice prong of the ineffective-counsel test.
We affirm the district court's denial of DeYoung's § 2254 petition. AFFIRMED.