Executed June 26, 2007 07:59 p.m. by Lethal Injection in Georgia
29th murderer executed in U.S. in 2007
1086th murderer executed in U.S. since 1976
1st murderer executed in Georgia in 2007
40th murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
John Washington Hightower
B / M / 43 - 63
B / F / 41
B / F / 19
B / F / 22
Hightower v. State, 386 S.E.2d 509 (Ga. 1989) (Direct Appeal).
Hightower v. Schofield, 365 F.3d 1008 (11th Cir. 2004) (Habeas).
Hightower v. Terry, 459 F.3d 1067 (11th Cir. 2006) (Habeas).
Four fried pork chops, collard greens with boiled okra and "boiling meat", fried corn, fried fatback, fried green tomatoes, cornbread, lemonade, one pint of strawberry ice cream and three glazed donuts.
"I want to say that I'm sorry for the grief I brought to the Reaves family."He also thanked his family and friends for their support over the years. "Last but not least, I thank my mother who stood by me for so long."
Georgia Department of Corrections (John Hightower)HIGHTOWER, JOHN W
Contact: Yolanda Thompson, Director Office of Public Affairs
For Immediate Release: Hightower Execution Media Advisory - Inmate requests last meal
Atlanta – Georgia Department of Corrections
James E. Donald, Commissioner
Condemned murderer John Washington Hightower is scheduled for execution by lethal injection at 7:00 p.m., on Tuesday, June 26, 2007 at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.
Media witnesses for the execution are Harry Webber, Associated Press; Stephanie Gibson, The Union-Recorder; Lateef Mungin, Atlanta Journal Constitution; Randall Savage, 13-WMAZ ; Jennifer Griffes, WSB News; and Tony McNary, WGCL-TV 46.
Hightower has requested four fried pork chops, collard greens with boiled okra and "boiling meat", fried corn, fried fatback, fried green tomatoes, cornbread, lemonade, one pint of strawberry ice cream and three glazed donuts as his last meal.
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 10:00 a.m. on Tuesday.
The Georgia Department of Corrections is the fifth largest prison system in the United States and is responsible for supervising over 60,000 inmates in custody and 140,000 probationers under supervision. It is the largest law enforcement agency in the state with nearly 15,000 employees.
For further information, please contact the Office of Public Affairs at 404-656-9772.
Atlanta Journal Constitution
"Triple murderer apologizes moments before execution," by Lateef Mungin. (06/27/07)
Jackson — Triple murderer John Hightower apologized to his victims Tuesday night moments before being injected with deadly chemicals. He said nothing, then after about 15 minutes blinked rapidly for some time. He yawned as his chest heaved and then became motionless.
John Hightower, sentenced to death for killing his wife and stepdaughters, requested a final meal of four fried pork chops, collard greens with boiled okra, fried corn, fried fatback, fried green tomatoes, corn bread, lemonade, one pint of strawberry ice cream and three glazed doughnuts.
He was pronounced dead at 7:59 p.m.
Hightower, 63, was convicted in 1988 of killing his wife and two stepdaughters.
The 7 p.m. execution was delayed until about 7:40 p.m. Officials were about 10 minutes late getting Hightower into the death chamber. It took nurses about 13 minutes to find a vein in each arm to administer the lethal injection. Protocol requires them to establish an entry point in both arms, said Paul Czachowski, a spokesman for the Georgia Department of Corrections. The time it took to find veins was not unusual given Hightower's age, he said.
Hightower was strapped on a gurney in the execution chamber, a small room with white cinderblock walls and rows of wooden benches at the prison 45 minutes southeast of Atlanta. Hightower was in a separate room, but onlookers could see him through a large glass window. He appeared calm while lying on a gurney, a sheet over his body up to his chest, the tube in his arm snaked through a hole in a wall where officials administered a lethal cocktail.
Hightower was first injected with 2 grams of sodium pentathol, a sedative. Then he was injected with 50 milligrams of pavulon, a chemical that paralyzes. Then Hightower was given a dosage of potassium chloride, which stops the heart.
About 30 were on hand in the execution chamber, including Hightower's pastor, a friend and a paralegal who acted as his witnesses. No witnesses appeared for the victims' family.
When given the opportunity to speak his final words, Hightower thanked his family and friends — "and last but not least I want to thank my mother who stood by me for so long." He declined an opportunity for a minister to pray for him.
The Georgia Supreme Court denied a stay of execution Tuesday afternoon.
Hightower spent most of the day visiting with friends, prison officials said. He had requested a final meal of four fried pork chops, collard greens with boiled okra, fried corn, fried fatback, fried green tomatoes, corn bread, lemonade, one pint of strawberry ice cream and three glazed doughnuts.
Dozens of protesters stood outside the prison grounds Tuesday evening. Diane Corlett, a Episcopal minister, drove from North Carolina to protest the execution. "They say it is humane," said Corlett. "But it is so inhumane. It is Draconian and twisted. I would have liked to see Mr. Hightower get life without the possibility of parole."
A jury of seven women and five men convicted Hightower in 1988 and sentenced him to die for murdering his wife, Dorothy Hightower, 41, and her two daughters, Evelyn, 19, and Sandra Reaves, 22, in 1987 at the family's Baldwin County home.
According to authorities, Hightower admitted he had been having marital problems. In the admission, he said he had been drinking and snorting cocaine hours before he entered the home where the victims were, placed a gun under a pillow in the room he shared with his wife and waited for everyone to go to sleep.
At about 3 a.m., police say, Hightower retrieved the gun and shot each of the three victims in the head. A 3-year-old girl in the house, his wife's niece, was found unharmed. http://www.ajc.com/metro/content/metro/stories/2007/06/26/metsurvivor0627a_web.html
"Left to live by Hightower, survivor's mission is to help," by Matt Kempner. (06/26/07)
This is where her story begins, she says. From her earliest memory, when she was 3 years old — fuzzy, color images that occasionally invade her conscious: The blood on the pillow where her Aunt Dot had slept beside her. The gun — it seemed so small — in the hand of her uncle Skippy as he walked back and forth in the Milledgeville house. The words he spoke to her, firmly: "Go back to sleep." So she did, snuggling beside her aunt who, years later she would understand, was already dead.
Keisha Reaves is 23 now. She says she thinks she's supposed to help people. She doesn't know why she alone was left to live on a July night in 1987 when her uncle, John Washington Hightower, went room to room, putting deadly holes into his wife and two stepdaughters.
Hightower told investigators that he and Dorothy "Dot" Hightower had marital differences and that he argued with one of the stepdaughters. But he said he "didn't have any problems with the baby," the niece his wife was baby-sitting.
John Hightower, 63, was executed Tuesday night for the murders of his wife and stepdaughters, 22-year-old Sandra Reaves and 19-year-old Evelyn Reaves. The state of Georgia administered a lethal injection around 7:40 p.m., fulfilling a jury's call for the death sentence, delayed by 19 years of legal challenges and pleas that his life be spared. In those years, Keisha Reaves has tried to make sense of that horrific night.
For a long time, her story didn't seem real to her. As a girl, she heard muffled conversations at family gatherings about the three women who had been taken early. She knew that she was part of the picture, but only in a vague way. It was like hearing a lesson in someone else's history.
Her parents didn't avoid the subject, but they also didn't bring it up, she says. When she was 11 or 12, Reaves spoke with her mom about it. "My mom told me, 'You were a blessing. You were meant to live.' "
Growing up, she felt uneasy around men, particularly the fathers of friends. They seemed aggressive. She flinched when people got upset or pushy. She avoided conflict. She grew to see herself as weak.
At her grandmother's house, she found Evelyn's high school yearbook. Friends had written notes inside it. "I just had an overwhelming feeling of sadness," Reaves says. She didn't see her experience as unusual. "I always felt like everybody had a story. Everybody had some tragedy in their lives and that was just mine."
In high school, she spoke about it again to her mom, who worked as a psychiatric nurse. Reaves mentioned her memories — the blood, the gun, the words she thinks either Evelyn or Sandra spoke to Hightower: "What, Daddy?" The recollections made her cry without her understanding why.
She was angry at her mother's response. "She said, 'You probably don't remember correctly. You probably are just going off hearsay, bits and pieces of what other people said,' " the daughter recalls. "I was like, 'No. I remember this. I can see it in my head.' "
In the Middle Georgia town where Reaves grew up, the story lingered about the murders. And about the toddler who survived. "Milledgeville is a small town," Reaves says, "and everyone seemed to have known it was me." A few friends asked her about it. "Yeah," she told them. "And I don't talk about it."
Events of July 12, 1987
In her senior year of high school, a teacher assigned the students to make scrapbooks about their lives. Reaves thought about whether to include an account of her survival. She went to the library and spent hours scrolling through old microfiche. Then, in a blur, she saw the front-page headline and the photos of her family members. "It was shocking," she says. "It was like you read a book and you just remembered that book, like you read 'Green Eggs and Ham.' And then as you grew older, 'Green Eggs and Ham' was about you. ... Like it wasn't someone else's story."
Sitting in the library, she read the first line of the newspaper story, then stopped. Crying, she made a copy to take home. Eventually, Reaves' parents told her about the events of July 12, 1987.
They had left her with her aunt while they attended a high school reunion and planned to return at 8 a.m. to pick up their daughter, the youngest of five and their only girl. But they changed their minds and stopped by at 2 or 3 in the morning to take her home. "They told me that when they walked in the house they saw Evelyn on the floor and she was gasping for air."
She had almost made it to the door. "My mom cried, and she just felt like in her heart that I was dead," Reaves says. "And she couldn't go into the bedroom to look into the bed to see if I was alive or not."
Curtis Reaves went in, calling their daughter's name. "Then I sat up and then he just got me. And that's it, that they told me." Sitting in her apartment in the suburbs south of Atlanta, Keisha Reaves recounts that conversation as she does her whole story: Carefully. Matter of factly.
She prepped herself in the last week to say it straight, without tears, at a clemency hearing for Hightower before the state Board of Pardons and Paroles. She recounted her memories and told the board it wasn't fair, what had happened to her and her family. As she spoke, she could hear her parents sobbing behind her. Her father, now 59, also testified. It was the first time she saw him display emotion about that night.
She also heard a detail she had never known: that Hightower had shot her aunt in the bed. "The dots connected," Reaves says. She didn't tell the board that Hightower should be put to death. Neither did she ask that he be spared. What's fair, she said later, is that whatever sentence he was given be carried out.
A life of service, not fame
Reaves expects to graduate in July from Clayton State University with a degree in psychology. She works full-time as a group leader at a state children's shelter, where one of her duties is to help kids work on anger issues tied to domestic violence. She plans to study to become a speech pathologist. All along, she has seen herself as a helping person. She considers that part of her own character, not an imprint left by the violence she came so close to as a toddler.
She doesn't understand why Hightower spared her. She's not sure she ever will. "I assume that either it wasn't my time or there is some sort of purpose."
She declined to be photographed for this story. She says she doesn't want to use the incident as a chance for fame. "I feel like I'm supposed to be doing something," she says. "I'm just still learning what that something is."
"Man who killed three in Georgia given lethal injection." (Associated Press)
JACKSON, Ga.- A man convicted of killing his wife and two stepdaughters 20 years ago was executed Tuesday. John Hightower was given a lethal injection at the state prison in Jackson, about 45 miles south of Atlanta. He was pronounced dead at 7:59 p.m. Last-minute appeals by attorneys for Hightower, including a bid for clemency, failed.
Hightower, 63, was convicted for the July 12, 1987, slayings of his wife, Dorothy Hightower, and his two stepdaughters, Evelyn Reaves and Sandra Reaves, at a home in Milledgeville, in central Georgia. The execution was Georgia's first in nearly two years.
Among the evidence investigators said they had against Hightower: a confession and a flesh- and blood-covered murder weapon found in the car he was driving when he was arrested. His clothes also were stained with blood.
According to authorities, Hightower admitted he had been having marital problems. In the admission, he said he had been drinking and snorting cocaine hours before he entered the home where the victims were, placed a gun under a pillow in the room he shared with his wife and waited for everyone to go to sleep.
At about 3 a.m, police say, Hightower retrieved the gun and shot each of the three victims in the head. A 3-year-old girl in the house was found unharmed. Hightower was arrested about 90 minutes after the shootings while driving his wife's car.
The execution was Georgia's first since Robert Conklin, a 44-year-old parolee who fatally stabbed a lawyer and dismembered the victim's body, was given a lethal injection on July 12, 2005.
ProDeathPenalty.comJohn Hightower was married to Dorothy Hightower. Her brother stopped by their home early in the morning of July 12, 1987, to pick up his daughter. Dorothy Hightower’s car was gone. The brother entered the home and found that Dorothy Hightower and her two daughters, Evelyn and Sandra Reaves, had been shot. Evelyn Reaves was still alive, but died two days later. Sandra Reaves and Dorothy Hightower were dead. The brother’s daughter was unharmed.
Two and one-half hours later, Hightower was arrested driving his wife’s car. Inside the car was a bloody handgun. He confessed later that morning. He told police that he and his wife had been having marital problems, and he had purchased the murder weapon the day before. He hid it under his pillow until 3:00 a.m., when he shot his wife. He then went to the bedroom occupied by his stepdaughter Sandra Reaves. She got out of bed, but then lay back down. He shot her in the head. Evelyn Reaves tried to leave the house, but Hightower caught her and shot her three times.
UPDATE: Before being executed by lethal injection, John Hightower made a brief final statement in which he said he apologized to the victims' family and asked for their forgiveness. "I want to say that I'm sorry for the grief I brought to the Reaves family," he said. He also thanked his family and friends for their support over the years. "Last but not least, I thank my mother for being by me for so long," Hightower said. He declined a final prayer. His pastor, a friend and a paralegal were the only witnesses for him who attended the execution. There were no witnesses from his wife's family. Earlier Tuesday, he recorded a statement for prison officials in which he apologized for his crime and said he loved his wife then and still does.
Georgians for Alternatives to the Death Penalty
Stop the Execution of John Hightower
The state of Georgia plans to execute John Hightower on Tuesday, June 26 at 7pm.
We are waiting to hear the results of the parole board's clemency hearing.
The effort to challenge the Georgia lethal injection protocol did not succeed in court - June 25, 2007. And on the morning of June 26, we learned that the parole board not grant clemency. Last minute court challenges are always possible; however, we need to be prepared for the worst.
Please gather to observe vigils in opposition to this scheduled execution around the state. The schedule is below.
Death Row (Georgia Diagnostic and Classification Prison), 6:30pm
Contact: Laura Moye, (m) 404-452-8920, firstname.lastname@example.org
State Capitol - Washington St. front steps, 6:30pm
Contact: Laura Moye, (m) 404-452-8920, email@example.com
Across from US Post Office, Prince St./Forsyth St., 4:30-6pm
Contact: John Cole-Vodika, 229-928-2080
UGA Arch on E. Broad St., 6:30pm
Contact: Al Lawler, 706-783-5131; Laura Kagel, (m) 706-546-1689
Public Library (902 Green St.), 6:30pm
Contact: Pat Seaborn 706-860-2721, (m)706-951-4464
Clarkesville Courthouse, 6:30pm
Contact: Anne Hall, m 706-499-5103
Cobb County Courthouse, Cherokee St./Roswell St., 6:30pm
Contact: Brian Freel, 770-641-7763
City Hall, Bay St./Bull St., 5:30pm
Contact: Roxie Bryant, (m) 912-308-7734
National Coalition to Abolish the Death Penalty
John W. Hightower, GA, June 26
Do Not Execute John W. Hightower!
Georgia is set to execute John W. Hightower for the July 1987 murders of Dorothy Hightower and Evelyn and Sandra Reaves.
The state of Georgia should not execute Hightower for his role in this crime. Executing Hightower would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Hightower, who is African-American claims prosecutors improperly struck African-Americans from the jury.
Please write to Gov. Sonny Perdue on behalf of John W. Hightower
Gwinnett Daily Post
"Lawyer seeks clemency for condemned killer," by Harry R. Weber. (AP 06/26/2007)
ATLANTA — A man set to die for killing his wife and two stepdaughters in 1987 deserves to live because he has remorse for the crimes, has tried to redeem himself in prison and the prosecutor at his trial acted improperly, a lawyer argued at a clemency hearing Monday.
John Hightower’s attorney, Jack Martin, also said in his petition to the state Board of Pardons and Paroles that several jurors who convicted his client now support his bid for a reprieve. ‘‘There is a terrible and profound irony in that Mr. Hightower is a person to whom family means so much, yet he has committed the act of destroying part of his family,’’ Martin wrote in the petition. ‘‘This fact is not lost on Mr. Hightower. His regret is intense.’’
As for the allegations against the man who prosecuted Hightower, Martin said that the district attorney at the time removed blacks as potential jurors during the trial over the objection of the defense. Hightower is black. Martin also said that many of the death penalty sentences the prosecutor obtained before resigning in 1994 were reversed because of error.
The prosecutor, Joe Briley, who is now in private practice, did not immediately return a phone call to his office Monday seeking comment. A call to his home went unanswered.
Hightower’s attorneys were trying several last-minute appeals — including the clemency petition and a request to the U.S. Supreme Court for a delay — to keep him from the death chamber. Also Monday, Martin asked a Superior Court judge to delay the execution on the grounds that the state’s method of execution is inhumane. That request was denied.
Absent any relief, Hightower will be given a lethal injection today. The former prosecutor, Briley, and the lead investigator in the case, Howard Sills, appeared before the parole board Monday to argue for the execution to proceed. Of the execution, Sills told reporters afterward, ‘‘It should have been carried out a long time ago.’’
The hearing was held behind closed doors. The board adjourned Monday afternoon and was to issue a decision today, a spokeswoman said. Four witnesses testified on Hightower’s behalf, including his two sons and an ex-wife. Afterward, Martin said he hoped the parole board would grant a stay of execution or commute Hightower’s sentence to life in prison without parole. ‘‘Anybody on death row knows a death sentence is a possibility,’’ Martin told reporters. But he added, ‘‘I’m always optimistic. I believe this is a unique case.’’
Hightower, 63, was convicted for the July 12, 1987, slayings of his wife, Dorothy Hightower, and his two stepdaughters, Evelyn Reaves and Sandra Reaves, at a home in Milledgeville. If carried out, the execution would be Georgia’s first in nearly two years.
Hightower v. State, 259 Ga. 770, 386 S.E.2d 509 (Ga. 1989) (Direct Appeal).
Defendant was convicted by jury in the Baldwin County Superior Court, William A. Prior, Jr., J., of three counts of murder and was sentenced to death and he appealed. The Supreme Court, Gregory, J., held that: (1) issue of adequacy of attorney fees was not addressable on appeal, absent evidence of actual ineffective assistance of counsel; (2) there had been no reciprocal use of aggravating circumstances; (3) trial court's determination that prosecutor had articulated legitimate, nonracial reasons for use of six of seven peremptory strikes against black prospective jurors was not clearly erroneous; and (4) sentences of death were not excessive or disproportionate. Affirmed.
This is a death penalty case. The defendant, John Hightower was convicted by a jury in Morgan County on three counts of murder and sentenced to death on all three counts. We affirm.FN1
FN1. The crime was committed in Baldwin County on July 12, 1987. A change of venue was granted, and the case was moved to Morgan County for trial. Trial began on April 28, 1988, and concluded on May 4, 1988. The defendant's motion for new trial was denied on June 28, 1989. An appeal was docketed in this court on September 15, 1989, and the case was orally argued November 15, 1989.
1. The defendant was married to Dorothy Hightower. Her brother stopped by their home early in the morning of July 12, 1987, to pick up his daughter. Dorothy Hightower's car was gone. The brother entered the home and found that Dorothy Hightower and her two daughters, Evelyn and Sandra Reaves, had been shot. Evelyn Reaves was still alive, but died two days later. Sandra Reaves and Dorothy Hightower were dead. The brother's daughter was unharmed.
Two and one-half hours later, the defendant was arrested driving his wife's car. Inside the car was a bloody handgun. He confessed later that morning. He told police that he and his wife had been having marital problems, and he had purchased the murder weapon the day before. He hid it under his pillow until 3:00 a.m., when he shot his wife. He then went to the bedroom occupied by his stepdaughter Sandra Reaves. She got out of bed, but then lay back down. He shot her in the head. Evelyn Reaves tried to leave the house, but the defendant caught her and shot her three times. He stated that he did not harm his niece because he “didn't have any problems with the baby.”
The evidence supports the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Hightower contends the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to exhibit four photographs of the victims to the defendant before trial. Brady applies to the suppression of “material evidence favorable to the accused.” Castell v. State, 250 Ga. 776, 781, 301 S.E.2d 234 (1983). The defendant himself contends the photographs were “damaging evidence.” Since they were not exculpatory evidence, there was no Brady error. Hightower further contends, however, that these photographs were encompassed by the trial court's order for pre-trial disclosure, and that even if this order was broader than required under Brady, the state nonetheless should have complied with it.
We agree that a trial court may require the state to provide the defense more discovery than the minimum required by law; however, the enforcement of its directives is a matter committed primarily to the trial court's sound exercise of discretion. Even assuming the state violated the trial court's order for pre-trial disclosure (and the state contends it did not), we find no abuse of discretion and no harmful error requiring reversal.
3. The defendant moved before trial for funds for an independent psychiatric evaluation, an investigator, a jury-selection specialist, and *772 for an additional attorney. The court authorized payment of $750 for a psychiatric evaluation and $5000 for a special investigator or other such expert assistance as the defendant might choose. The defendant later asked for an additional $6000 to retain the services of an expert in family violence. The court denied this motion. However, the defendant retained the services of a psychologist who testified at trial. The court authorized an additional $1000 to pay for the services of this psychologist.
The trial court did not deny the defendant any necessary financial assistance. Crawford v. State, 257 Ga. 681(5), 362 S.E.2d 201 (1987). Compare Isaacs v. State, 259 Ga. 717 (13), 386 S.E.2d 316 (1989).
Hightower was represented by two attorneys. The court did not abuse its discretion by refusing to appoint a third. Moreover, we do not agree that the amount awarded to the defendant's attorneys for their services was so low as to deny the defendant effective assistance of counsel as a matter of law, and absent any evidence of actual ineffectiveness, attorney fees are not an issue addressable on this appeal. Moon v. State, 258 Ga. 748(6), 375 S.E.2d 442 (1988).
The defendant has not shown any harm from the denial of an ex parte hearing on the funds issue. 4. Georgia death penalty laws are not unconstitutional for any reason stated. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
5. The jury found as statutory aggravating circumstances: (1) the murder of Dorothy Hightower was committed while the defendant was engaged in the commission of the murder of Evelyn Reaves, (2) the murder of Sandra Reaves was committed while the defendant was engaged in the commission of the murder of Dorothy Hightower, and (3) the murder of Evelyn Reaves was committed while the defendant was engaged in the murder of Sandra Reaves.
Contrary to the defendant's contention, each murder was supported by an independent statutory aggravating circumstance. There was no reciprocal use of aggravating circumstances, and therefore no “mutually supporting aggravating circumstances.” Isaacs v. State, supra at 738 (43 a), 386 S.E.2d 316.
6. “Death-qualification” of the prospective jurors is not improper. Pope v. State, 256 Ga. 195, 200(7a), 345 S.E.2d 831 (1986). The defendant cites no authority and we have found none for the proposition that a defendant is entitled to a “special circumstances” jury to try the sentencing phase.
7. Denial of sequestered voir dire was not an abuse of discretion. Sanborn v. State, 251 Ga. 169(3), 304 S.E.2d 377 (1983).
8. A defendant is not entitled to a daily transcript. Chenault v. State, 234 Ga. 216(3), 215 S.E.2d 223 (1975).
9. The evidence supports the trial court's finding that the defendant was not intoxicated when he confessed, that he did not invoke his right to counsel, and that he knowingly, voluntarily, and intelligently waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and voluntarily confessed.
10. Hightower contends the court erroneously excused three prospective jurors on “Witherspoon” grounds (opposition to the death penalty) and erroneously found qualified three others on “reverse- Witherspoon” grounds (inability to fairly consider less than a death sentence). We find that **512 the court's rulings on these six prospective jurors were “within the deference due the trial judge's determination.” Jefferson v. State, 256 Ga. 821, 824(2), 353 S.E.2d 468 (1987). See Curry v. State, 255 Ga. 215 at 221(2f) (336 S.E.2d 762).
11. The defendant contends the prosecution was guilty of racial discrimination. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor used only seven of his authorized 10 peremptory strikes. He used six of those seven strikes against black prospective jurors. The record shows that at least two black prospective jurors were struck by the defendant after having been accepted by the prosecutor. The prosecutor explained his peremptory challenges. Four of the challenged prospective jurors were closely related to persons convicted of serious felonies. The other two were conscientiously opposed to the death penalty, although not to the extent they were excused for cause. The trial court found that the prosecutor had articulated legitimate non-racial reasons for his challenges. Even assuming the defendant made out a prima facie case, Cf. Childs v. State, 257 Ga. 243(21), 357 S.E.2d 48 (1987), the trial court's determination is not clearly erroneous. Compare Foster v. State, 258 Ga. 736(2), 374 S.E.2d 188 (1988).
12. There was no abuse of discretion in the denial of continuance. O'Neal v. State, 254 Ga. 1(2), 325 S.E.2d 759 (1985).
13. The state is not limited to presenting evidence of statutory aggravating circumstances, see OCGA § 17-10-30(b)(1) through (b)(10), at the sentencing phase of the trial. Hicks v. State, 256 Ga. 715, 727(19a), 352 S.E.2d 762 (1987).
14. The defendant moved for a mistrial when Dorothy Hightower's brother on three occasions referred to the homicides as murders, despite cautionary instructions from the court. The testimony of the witness was not so prejudicial as to require a mistrial. Lee v. State, 258 Ga. 82, 85(5), 365 S.E.2d 99 (1988).
15. There being no evidence that the defendant acted as the result of “a sudden, violent, and irresistible passion,” OCGA § 16-5-2, it was not error to refuse to charge the jury on voluntary manslaughter. Gooch v. State, 259 Ga. 301(3), 379 S.E.2d 522 (1989).
16. The trial court did not err by refusing at the guilt phase of *774 the trial to instruct the jury on the “defense” of diminished mental capacity as such is not a defense under Georgia law. Cf. Hicks v. State, supra, 256 Ga. 715(16c), 352 S.E.2d 762 (1987).
17.The defendant's requests to charge at the sentencing phase of the trial were substantially covered by the charge given by the court. Housel v. State, 257 Ga. 115(3), 355 S.E.2d 651 (1987).
18. There was no improper cross-examination of the defendant at the sentencing phase of the trial. Castell v. State, 250 Ga. 776(8b), 301 S.E.2d 234 (1983).
19. Where a witness testifies under oath and subject to cross-examination, prior statements of the witness are admissible over a hearsay objection. Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985). Enumeration of error number 47 is without merit.
20. It is not error to allow a witness who has not been sequestered to testify in rebuttal. Hanvey v. State, 68 Ga. 612(3) (1882). See also Jefferson v. State, 256 Ga. 821, 825(6), 353 S.E.2d 468 (1987).
21. After the conclusion of closing arguments and the charge at the sentencing phase of the trial, the court informed counsel:
One of the ladies on the jury has told me that one of the other jurors has told her that no matter what anybody said, she'd already made up her mind. Did not say which way she'd made up her mind. I, I, you know, have no suggestion as to how we should proceed on that. I frankly don't know how we should proceed.
The defendant's attorney initially stated that he did not think there was anything that could be done. However, immediately **513 after the court gave the jury brief supplemental instructions, the defendant moved for a mistrial. The trial court denied the motion, noting that two alternates were available. The defendant did not object further, or move to excuse the juror and replace her with an alternate. There was no abuse of discretion. Mulkey v. State, 250 Ga. 444, 446(3), 298 S.E.2d 487 (1983).
22. That the defendant was indicted before counsel was appointed was no ground to quash the indictment.
23. The evidence supports the jury's findings of statutory aggravating circumstances. See Division 5, ante. OCGA § 17-10-35(c)(2). We do not find that the sentences of death were imposed under the influence of passion, prejudice, or other arbitrary factor. OCGA § 17-10-35(c)(1). The sentences of death are neither excessive nor disproportionate to penalties imposed in similar cases, considering the crime and the defendant. OCGA § 17-10-35(c)(3). The similar cases listed in the Appendix support the imposition of death sentences in this case. Judgment affirmed.
Hightower v. Schofield, 365 F.3d 1008 (11th Cir. 2004) (Habeas).
Background: Petitioner, convicted in state court of murder and sentenced to death, 259 Ga. 770, 386 S.E.2d 509, sought federal habeas relief. The United States District Court for the Middle District of Georgia, No. 96-00097-3:CV-DF, Duross Fitzpatrick, J., denied petition. Petitioner appealed.
Holdings: The Court of Appeals, Tjoflat, Circuit Judge, held that:
(1) petitioner had no due process right to psychiatric assistance;
(2) even if petitioner had right to psychiatric assistance, trial court met its obligations under due process clause;
(3) state court's determination that claim that prosecutor's participation in hearings on petitioner's requests for funds to retain psychiatric expert violated due process was subject to harmless error analysis was not contrary to, or unreasonable application of, federal law;
(4) any error in not providing ex parte hearings on requests for funds was harmless;
(5) petitioner failed to provide evidence discrediting prosecutor's specific, nonracial reasons for using peremptory strikes against African-Americans;
(6) claim that trial court seated two jurors who were impermissibly predisposed toward death sentence was procedurally defaulted; and
(7) counsel did not render ineffective assistance. Affirmed.
TJOFLAT, Circuit Judge:
Petitioner John Washington Hightower, a Georgia prisoner, seeks a writ of habeas corpus setting aside his 1988 convictions and sentences for capital murder. The district court denied his petition. We affirm.
The Supreme Court of Georgia summarized the facts of this case as follows:
The defendant was married to Dorothy Hightower. Her brother stopped by their home early in the morning of July 12, 1987, to pick up his daughter. Dorothy Hightower's car was gone. The brother entered the home and found that Dorothy Hightower and her two daughters, Evelyn and Sandra Reaves, had been shot. Evelyn Reaves was still alive, but died two days later. Sandra Reaves and Dorothy Hightower were dead. The brother's daughter was unharmed.
Two and one-half hours later, the defendant was arrested driving his wife's car. Inside the car was a bloody handgun. He confessed later that morning. He told police that he and his wife had been having marital problems, and he had purchased the murder weapon the day before. He hid it under his pillow until 3:00 a.m., when he shot his wife. He then went to the bedroom occupied by his stepdaughter Sandra Reaves. She got out of bed, but then lay back down. He shot her in the head. Evelyn Reaves tried to leave the house, but the defendant caught her and shot her three times. Hightower v. State, 259 Ga. 770, 386 S.E.2d 509, 510 (1989).
After a trial held from April 28, 1988, to May 4, 1988, a jury in Morgan County, Georgia,FN1 convicted Hightower of three counts of murder. In the penalty phase, the jury found an aggravating circumstance as to each murder, namely, that Hightower had committed each murder in the course of the commission of another murder.FN2 The jury recommended death sentences on each of the three counts of murder. The trial court entered these sentences as required by Georgia law.FN3
FN1. Hightower was indicted in Baldwin County on July 14, 1987. At a hearing on January 15, 1988, the superior court granted Hightower's motion for a change of venue, and ordered that venue be changed to Morgan County for trial. On February 25, 1988, the court quashed the indictment on the ground that African-Americans were underrepresented on the venire from which the grand jury had been drawn. A new indictment was returned on March 18, 1988, and Hightower was arraigned on April 15, 1988. On April 20, 1988, the superior court issued an order nunc pro tunc January 15, 1988, incorporating into the record of the new case all motions, orders, and rulings from the earlier case.
FN2. O.C.G.A. § 17-10-31 requires that a death sentence be supported by “a finding of at least one statutory aggravating circumstance.” One sufficient aggravating circumstance for murder is that it “was committed while the offender was engaged in the commission of another capital felony or aggravated battery.” O.C.G.A. § 17-10-30. Hightower's jury found that (1) the murder of Dorothy Hightower was committed while Hightower was engaged the commission of the murder of Evelyn Reaves, (2) the murder of Sandra Reaves was committed while Hightower was engaged in the commission of the murder of Dorothy Hightower, and (3) the murder of Evelyn Reaves was committed while Hightower was engaged in the commission of the murder of Sandra Reaves.
FN3. O.C.G.A. § 17-10-31 provides that “[w]here a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death.”
Hightower sought, but was denied, a new trial. The Georgia Supreme Court affirmed Hightower's convictions on direct appeal, Hightower v. State, 259 Ga. 770, 386 S.E.2d 509 (1989), and denied his motion for reconsideration. The Supreme Court of the United States denied Hightower's petition for a writ of certiorari, Hightower v. Georgia, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990), and his petition for rehearing, Hightower v. Georgia, 498 U.S. 995, 111 S.Ct. 549, 112 L.Ed.2d 557 (1990).
Hightower then petitioned the Superior Court of Butts County, Georgia, for a writ of habeas corpus.FN4 After an evidentiary hearing, the court denied his petition. The Georgia Supreme Court denied Hightower's application for probable cause to appeal and his subsequent motion for reconsideration. The Supreme Court of the United States denied Hightower's petition for a writ of certiorari, Hightower v. Thomas, 515 U.S. 1162, 115 S.Ct. 2618, 132 L.Ed.2d 860 (1995), and his petition for rehearing, Hightower v. Thomas, 515 U.S. 1183, 116 S.Ct. 30, 132 L.Ed.2d 912 (1995).
FN4. Hightower petitioned that court because he was incarcerated in Butts County.
Having pursued all state court avenues of relief, Hightower sought habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied his petition, concluding on the basis of the records of the state court proceedings that none of his claims had merit. FN5 The district court thereafter granted Hightower's application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c), concluding that he had made a “substantial showing of the denial of a constitutional right” with respect to each of his claims. In this appeal, however, Hightower challenges the district court's disposition only of a portion of his claims. FN6 He contends that the state trial court committed constitutional error by (1) failing to provide him with the assistance of a qualified psychiatrist as required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and by neglecting to conduct hearings on his Ake requests ex parte; (2) allowing the prosecutor peremptorily to strike African-Americans from the jury, in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (3) permitting jurors unconstitutionally biased in favor of the death penalty to serve on his jury. He also claims that his two court-appointed lawyers provided constitutionally ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
FN5. The court also denied Hightower's Federal Rule of Civil Procedure 59(e) motion to alter and amend the judgment.
FN6. Hightower has abandoned the following claims by not including them in his brief: (1) the prosecutor engaged in various forms of misconduct before and during the trial, depriving him of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to a fair trial and a reliable sentencing proceeding; (2) the trial court violated his rights under the Fifth and Fourteenth Amendments by failing to have all proceedings against him transcribed and made part of the record; (3) the State obtained his confession and used it against him at trial in contravention of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (4) the trial court violated his rights under the Eighth and Fourteenth Amendments by providing misleading and incomplete instructions to the jury during the penalty phase of his trial; (5) the trial court violated his Fourteenth Amendment due process rights by allowing the prosecutor to introduce allegedly inflammatory victim impact evidence; and (6) his attorneys were constitutionally ineffective in numerous ways beyond those cited in his brief to us.
* * *
Hightower raises two separate claims under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We address these in turn.
Hightower first claims that he was denied his rights under Ake to the assistance of a competent psychiatrist. Hightower unsuccessfully raised this claim on direct appeal to the Georgia Supreme Court.FN7 Hightower v. State, 259 Ga. 770, 386 S.E.2d 509, 511 (1989). Thus, under 28 U.S.C. § 2254(d), for Hightower to prevail on this claim, the decision of the Georgia Supreme Court must have been “contrary to, or ... an unreasonable application of, clearly established” United States Supreme Court precedent, or “based on an unreasonable determination of the facts in light of the evidence.” We hold that it was not. Because Hightower failed to make the threshold showing required to trigger his rights under Ake, and received defense funds that he could have used for a psychiatric expert, his claim fails.
FN7. Hightower later brought this claim before the Superior Court of Butts County. That court refused to review the claim, citing Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986). Gunter held that an “issue ... actually litigated, i.e., raised and decided [on] direct appeal ... cannot be reasserted in habeas corpus proceedings” in Georgia state courts. Id. at 644-45 (citations omitted).
The Supreme Court in Ake considered the constitutional right of indigent criminal defendants to psychiatric assistance. In that case, Ake, the defendant, notified the trial court during a pretrial conference of his intention to raise an insanity defense, and requested the appointment of, or funds to hire, a psychiatrist. Ake, 470 U.S. at 72, 105 S.Ct. at 1090. The court denied the request. Id. at 72, 105 S.Ct. at 1090-91. At the guilt phase of Ake's trial, “there was no expert testimony for either side on Ake's sanity at the time of the offense,” even though “his sole defense was insanity.” Id. at 72, 105 S.Ct. at 1091 (emphasis omitted). The jury found him guilty. Id. at 73, 105 S.Ct. at 1091. At the sentencing phase, Ake, without a psychiatric expert, could not rebut the testimony of state psychiatrists who claimed he was “dangerous to society,” and could not “introduce on his behalf [psychiatric] evidence in mitigation of his punishment.” Id. at 72, 105 S.Ct. at 1091. The jury returned a death sentence. Id.
The Supreme Court ruled in Ake's favor, holding under the Due Process Clause of the Fourteenth Amendment that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. 470 U.S. at 83, 105 S.Ct. at 1096. The Court found that the trial court was adequately “on notice” that “Ake's mental state at the time of the offense was a substantial factor in his defense,” id. at 86, 105 S.Ct. at 1097, due in large part to the following facts: (1) Ake's sole defense was insanity; (2) the trial court, sua sponte, had ordered that Ake be examined by a psychiatrist to determine the cause of his “bizarre” behavior at arraignment; (3) a state psychiatrist later found Ake incompetent to stand trial; (4) Ake was deemed competent “only on the condition that he be sedated” with medication during the trial; and (5) psychiatrists who examined Ake for competency did so within six months of the offense, and opined that his “mental illness might have begun many years earlier.” Id. at 86, 105 S.Ct. at 1098.
Because “[a] defendant's mental condition is not necessarily at issue in every criminal proceeding,” id. at 82, 105 S.Ct. at 1096, the right to psychiatric assistance is not automatic. Rather, this right hinges upon the sufficiency of the defendant's preliminary showing to the trial court that there is a “substantial basis for the defense” that the expert will assist in presenting. Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987) (en banc). While defense counsel “cannot be expected to provide the court with a detailed analysis of the assistance an appointed expert might provide,” he is nonetheless “obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert” to the defense. Id. The trial court must then examine the evidence before it, make all necessary inferences, and determine whether the provision of psychiatric assistance is warranted.
In reviewing an Ake claim like Hightower's, we look to the reasonableness of the trial judge's action at the time he took it. This assessment necessarily turns on the sufficiency of the petitioner's explanation as to why he needed an expert. That is, having heard petitioner's explanation, should the trial judge have concluded that unless he granted his request petitioner would likely be denied an adequate opportunity fairly to confront the State's case and to present his defense? Id. at 710. The sources available to the trial court in considering Hightower's request for psychiatric assistance included (1) written motions and exhibits, (2) defense counsel's representations at pretrial proceedings, and (3) Hightower's behavior at pretrial proceedings. We “[place] ourselves in the shoes of the trial judge [and] analyze the information he received as it was brought before him.” Messer v. Kemp, 831 F.2d 946, 961 (11th Cir.1987) (en banc). In so doing, we conclude that Hightower failed to satisfy his preliminary burden under Ake, and was therefore not entitled to the services of a psychiatrist.
Hightower's attorneys first notified the trial court of their desire for expert psychiatric assistance in a written motion dated August 6, 1987. The full text of the motion reads as follows:
Motion for Funds to Hire Independent Psychiatrists
1. The defendant, John Hightower, was arrested on July 10, 1987, and charged with three counts of Murder.
2. The said Defendant was indicted by the Baldwin County Grand Jury on July 14, 1987, for said offenses.
3. The District Attorney of Baldwin County, Georgia, Mr. Joseph Briley, has announced that he intends to seek the death penalty in the prosecution of said case.
4. Counsel for Defendant feel that the defendant's mental state, together with the presence or absence of any mental disorder or disease, may be of importance in the defense of said action.
5. Defense counsel were appointed by this Honorable Court to represent the Defendant, the said Defendant having been found previously indigent by this Court.
6. Defendant is without sufficient funds of any kind with which to hire independent psychiatric or psychological experts, and feels that the same would be needed in order to insure him all of his due process rights under the Georgia and the United States Constitutions.
7. Defendant believes that independent psychiatric and/or psychological evaluations need to be accomplished in order to assure that any and all defenses can be properly presented at trial.
Wherefore, Defendant prays that funds be provided to his counsel of record for the purpose of employing independent psychiatric and/or psychological experts in the defense of his case.
This 6th day of August, 1987.
/s/ Hulane E. George, Attorney for Defendant
B. Carl Buice, Attorney for Defendant
The court heard arguments on this and other motions at a hearing on August 31, 1987. At the hearing, the court asked defense counsel whether they intended to “make a motion for an examination at Central State Hospital.” They answered in the negative, and asked that the court consider instead their motion for funds to hire an independent psychiatrist. The court, pursuant to Ake, ordered counsel to make a preliminary showing that Hightower's sanity at the time of the offense was likely to be a significant factor at trial. Carl Buice, one of Hightower's two attorneys,FN8 offered the following:
FN8. The court initially appointed Alan Thrower to represent Hightower. On July 17, 1987, 5 days after the murders, the court granted Thrower's motion to be relieved as counsel due to a conflict of interest. Four days after granting the motion, the court appointed Hulane E. George and B. Carl Buice to represent Hightower. George and Buice were a married couple who were also law partners. They served as Hightower's counsel both at trial and on direct appeal.
May it please the Court. Where we are at this point in this issue is at a very preliminary threshold because if we were not there we would get into a very circuitous situation. Obviously in order to determine clearly what we are going to need in the way of psychiatric testimony we need the help of a psychiatrist. It is not possible to evaluate fully the mental condition of the defendant without professional assistance to assist us in doing that and if the Court would note, the Ake decision does not just have to do with the defense of insanity, but goes on to talk about whether the mental condition of the defendant is going to be a factor at the trial of the case which has to do not only with the guilt/innocence phase or any plea of not guilty or of guilty but insane or not guilty for reasons of insanity, but also in the area of litigation and extenuation in terms of whether there are any characteristics of the defendant which would be mitigating of the circumstances in the event that he was convicted. Now, the only thing we can present to the Court at this point in the absence of having expert testimony is that which is already apparent in the record. That is, that we have here a man who is charged with three murders, the murder of his wife and two stepdaughters. This comes in a situation in a life history in which there has been no previous violence. We have a situation where a person of no demonstrated erratic behavior performs an act which is in and of itself according to the charge of the district attorney, stunningly abhorrent. The event itself, the facts themselves raise the question of the mental state of the defendant and the circumstances which would lead up to such an event, not just in terms of insanity which, of course, is a legal term and not a mental health term, but in terms of all the factors in the defendant's psyche which might relate to this event and be important in the defense of his case, not only in the defense in the guilt and innocence phase, but in any phase of the trial in extenuation and mitigation. So, what we are asking for at this point in regard to this particular thing is some preliminary funds for a psychiatric evaluation on the part of a psychiatrist who is a part of the defense team who has-to whom we have access and with whom we can consult in the building of our defense of this man so that we can know what further issue we may need to raise in terms of psychiatric evaluation, what defenses we need to file in terms of this man's condition, whether we have defenses which are defenses in the guilt/innocence phase or are just issues in the extenuation or sentencing phase. All of these are matters that we cannot determine without having the benefit of counsel from a competent psychiatrist, someone trained in the mental health field who can help us know what to look for in terms of this man's personality. This is no small issue in a case of this nature. The mental state of the defendant is going to be a key factor all the way through and if we are to provide him with an adequate defense, if we are to be able to raise the issues which need to be raised in this case or at least consider the issues which may need to be raised, we need that expert assistance ab initio from the very beginning. To make us-to require us to make a showing in terms of some professional evidence in the case where we have no authority to get a professional to develop the evidence and have no resource to a professional to determine what sort of issues may be available to us, denies us of access to that whole area of defense from the very beginning.
In response to this statement, the court asked Buice how much money they needed for a psychiatric expert. He said they needed $750 “[o]n a preliminary basis, reserving the right to ask for an additional amount in terms of what we may find as we go forward.” The court granted the motion and “authorize[d] [counsel] to expend up to” $750. The court also left open the possibility of granting more funds in the future, but only after another hearing.
At this point, the prosecutor moved that Hightower be admitted to Central State Hospital for a “psychological evaluation,” so that the State could rebut any “claim as to mental incompetency” that the defense might raise at either phase of the trial. Defense counsel opposed the motion, stating that they would have Hightower evaluated by his own psychiatrist. The court asked when counsel intended to have Hightower examined by their psychiatrist. They said they planned to have him examined that very week. Buice, presumably referring to a psychiatric expert he had already contacted, added: “He has already done some preliminary interviews. He is in the process.”
In response to the prosecutor's protests that the defense was merely seeking to “sandbag” the State by preventing it the opportunity to examine Hightower, the court purported to grant the prosecutor's motion. But given defense counsel's representation that Hightower would soon be evaluated by his own expert, the court delayed his transportation to Central State Hospital for two weeks.
We now place ourselves in the position of the trial court and evaluate the evidence as it was submitted. In doing so, we make several observations. First, defense counsel made no issue of Hightower's “present sanity,” i.e., his competency to stand trial.FN9 They opposed the prosecutor's attempt to have Hightower evaluated by a state psychiatrist, and from the record, it does not appear that the State ever had him evaluated. Second, by the time of the hearing, his lawyers had engaged the services of an unnamed mental health expert, and this expert had already done some unspecified “preliminary” work on the case. Third, presumably because they had already chosen their own expert, counsel requested only that the trial court grant them funds. They never raised the option of an appointed psychiatrist. Fourth, unlike in Ake, in which the trial court was so concerned about the defendant's peculiar behavior that he ordered a psychiatric examination sua sponte, neither the court, the prosecutor, nor defense counsel ever made an issue of Hightower's behavior at the hearing.FN10 Fifth, defense counsel failed to offer any fact bearing upon Hightower's mental status apart from the mere occurrence of the crime itself. At the hearing, they merely pointed out that Hightower was accused of three “abhorrent” murders even though his behavior had never before been violent or “erratic.”
FN9. Nothing in the record indicates that Hightower's behavior at this hearing was in any way peculiar. Indeed, Hightower's competency to stand trial does not appear ever to have been at issue, a point that Hightower himself makes in his brief.
FN10. Nor has Hightower argued to us on appeal that his behavior should have given the trial court pause.
Based upon these observations, we conclude that Hightower had at this stage failed to satisfy his preliminary burden under Ake. The trial court had no evidence upon which to conclude that his “sanity at the time of the offense [was] to be a significant factor at trial.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Despite this, the court gave his attorneys precisely the sum they requested for a psychiatric expert. No constitutional error had yet occurred.
As far as the record discloses, it was not until some three months later that the trial court dealt in any way with defense counsel's requests for expert psychiatric assistance. In an order dated November 25, 1987, the court, citing its authorization of $750 for the payment of a psychiatric expert, ordered the county to pay $440 to Dr. N. Archer Moore. Attached to the order is an itemized billing record detailing services Dr. Moore rendered in Hightower's case, which were as follows: (1) a one-hour interview with Hightower on August 25, 1987; (2) a two-hour interview with Hightower on August 28, 1987; (3) a two-hour interview with Hightower on August 31, 1987; (4) a one-hour interview with Hightower on November 16, 1987; and (5) a two-hour conference with Hightower's attorneys on November 17, 1987.
At this point, the court could discern the following. First, defense counsel had taken a portion of the funds they had received and used it to employ an expert of their choice, Dr. Moore. Second, Dr. Moore was a psychologist, not a psychiatrist.FN11 Third, Dr. Moore had taken the opportunity to evaluate Hightower on four separate occasions for a total of six hours. Fourth, defense counsel had not yet exhausted the $750 that they had received for the specific purpose of hiring a psychiatric expert.
FN11. The November 25 order does not identify this fact, though Dr. Moore's attached billing statement (1) recited his professional name as “N. Archer Moore, Ph.D.,” (2) gave no indication that Dr. Moore possessed a medical degree in addition to his Ph.D., and (3) listed a single professional affiliation, the American Board of Psychology. The court from these facts alone could have assumed that Dr. Moore was a psychologist.
No additional funds were requested at this stage, and no error had yet occurred.
Another three months passed before defense counsel presented the trial court with any additional information regarding a need for expert psychiatric assistance. On February 8, 1988, they filed a motion, which reads as follows:
Motion for Additional Funds to Hire Psychiatrist
1. On August 31, 1987, this Court granted the Defendant the sum of Seven Hundred Fifty ($750.00) [sic] to hire a psychologist and/or psychiatrist to evaluate the Defendant herein.
2. Defendant's counsels retained Dr. Archer Moore, of Macon, Georgia, to evaluate the Defendant. On the advise [sic] of Dr. Moore, Defendant's counsels were advised to seek a psychologist or psychiatrist who had extensive experience in dealing with family violence to evaluate the Defendant.
3. Dr. Emanuel Tanay, M.D., has been contacted by Defendant's counsel and has advised us that he would be able to provide forensic psychiatric services to Defendant. A copy of a letter from Dr. Tanay and a copy of his vitae is attached hereto as Exhibit “A” and is made a part hereof by reference.
4. Defendant requires the services of Dr. Tanay, if he is to adequately present not only his defense but to assist Defense counsel in the preparation of Defendant's case in the guilt/innocence phase as well as in the sentencing phase. To deny these services is to violate Defendant's constitutional rights under the Constitutions of the United States and the State of Georgia.
WHEREFORE, Defendant herein moves that this Court order that Dr. Tanay [sic] services be ordered and that this Court sign an order providing that his services would be reimbursed up to Six Thousand ($6,000.00) Dollars.
This 8th Day of February, 1988.
/s/ Hulane E. George
B. Carl Buice
The first attachment to the motion was a letter to defense counsel from Dr. Emanuel Tanay, M.D., dated February 1, 1988. In this letter, Dr. Tanay, writing in response to an “extensive telephone conference” with defense counsel, expressed his willingness “to provide forensic psychiatric services” for Hightower at a reduced rate of $150.00 per hour plus expenses. Dr. Tanay estimated that his evaluation of Hightower would take at least twenty hours, and said that he required a court order to guarantee that he would be paid on an hourly basis for his testimony. In closing, Dr. Tanay stated that he could not evaluate Hightower before April 11, 1988.FN12
FN12. Although it does not appear that a trial date had yet been set, the court and the parties seemed at that point to have contemplated a trial in mid- to late-April 1988.
The second attachment to the motion was Dr. Tanay's curriculum vitae. It showed, among other things, that Dr. Tanay was a psychiatrist licensed in Michigan, Ohio, and Georgia, and that he was certified by the American Board of Psychiatry and Neurology and by the American Board of Forensic Psychiatry. In addition, the curriculum vitae listed Dr. Tanay's numerous publications, some of which appeared by their titles to address legal issues related to insanity, mental illness, forensic psychiatry, and psychic trauma.
The trial court held a hearing on defense counsel's motion on February 9, 1988. At the hearing, counsel informed the court of the following:
We have had Mr. Hightower evaluated by our psychiatrist, Dr. Archer Moore, and he advised us that we really needed someone who was an expert in family violence. And we have combed the United States, and we have been advised that this man-if you will look at his eight page vitae which is just a part of his vitae, you can see he is very well qualified. I spoke to Dr. Tanay and as he said in his letter, he could not evaluate Mr. Hightower until April the 11th of 1988, and he states that he will reduce his regular fee to $150 per hour plus expenses. His expenses includes [sic] coming from Detroit to Atlanta and renting a car. I figure probably somewhere around $6,000 for total expenses for Dr. Tanay. We desperately need his input in this case. We need it not only in the guilt-innocent phase but we need it in the sentencing phase. We need someone to evaluate Mr. Hightower and to give us some clues as to the causes of this tragedy. And he seems-according to everyone that we can talk to-is just about the only one in the United States that is available.
The prosecutor responded that the court had “bent over backwards already” in meeting Hightower's requests for psychiatric assistance, and had “gone further than Ake ” required in this regard. Defense counsel answered:
We are not asking or dealing with the issue of minimum requirement of the appellate courts. We're asking for substantial justice on the part of Mr. Hightower. To use just an ordinary psychologist in a case of this sort where the issues of domestic violence, a very specialized field, are at stake is rather analagous [sic] to using a general practitioner for brain surgery. If any accused person in Mr. Hightower's situation, who had the funds to do so, were in his place, certainly a specialist of this sort would be used. The only reason for not using a specialist of this sort in this sort of case would be a lack of funds. And if Mr. Hightower is therefore refused-denied the access to this sort of specialist simply because of lack of funds, we submit that it would be tantamount to a failure of due process.
The court then asked counsel if they could cite any authority that required the provision of additional funds. They could not. Instead, they reminded the court that they had received $750 at the last hearing, and that, as they understood it, they were entitled to come to the court again “if [they] needed more.” The court then asked counsel how much money it had given them “to spend at [their] discretion.” Counsel answered:
We have $5,000-$5,750. And we've divided that into Dr. Moore's bill which was I think $450 which has been paid. We had-we have hired a jury specialist and we have hired a special investigator and that will wipe out all of that money. Without further argument, the court denied the motion for additional funds. FN13
FN13. Again, we note that the record bears no indication that Hightower's behavior at this hearing was in any way peculiar.
We pause once again to consider whether the court committed error at this stage. We evaluate the additional evidence now available to the court and discern how it should have affected its actions. Several things are worth noting.
First, the court knew nothing of Dr. Moore's evaluation of Hightower save the dates and durations of the interviews. It was unclear at this point as to (1) whether Dr. Moore had been able to diagnose Hightower, (2) why Dr. Moore had “advised” defense counsel to seek an expert in “family violence,” and (3) whether and in what phase defense counsel intended that Dr. Moore testify at trial.
Second, the court knew nothing about the probable value of Dr. Tanay's assistance. It knew only that (1) Dr. Tanay, unlike Dr. Moore, was a psychiatrist, and (2) defense counsel perceived Dr. Tanay to be an expert in the unexplained field of “family violence.” Defense counsel made no issue of the former distinction,FN14 but instead grasped upon the latter distinction without explaining its significance. The most the court could glean from counsel's representations was that “family violence” was a “specialty” of psychology or psychiatry dealing with violent behavior in the context of family relationships. While a specialist of this kind might have been useful to Hightower, his attorneys essentially conceded at the hearing that their own notions of “justice,” rather than the requirements of law, demanded the provision of such an expert.
FN14. Because we hold that Hightower had no right to an expert under Ake, we need not decide the question of whether a criminal defendant's Ake rights are satisfied by the provision of a psychologist rather than a psychiatrist.
Third, defense counsel provided no additional facts upon which to make an issue of Hightower's mental state. Indeed, although Dr. Moore had evaluated Hightower months beforehand, counsel still did not indicate that they would offer an insanity defense at trial.
Fourth, Hightower had not behaved peculiarly at any proceeding. Based upon these observations, we conclude that Hightower still had not satisfied his preliminary burden under Ake. Months after they made their initial request for funds for a psychiatric expert, defense counsel still had not shown the court that Hightower's sanity was likely to be an issue at trial. That they had received expert funds in spite of this deficiency did not entitle them to more. No error had yet occurred.
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We have surveyed all pretrial proceedings at which Hightower presented the trial court with information bearing upon his need for a psychiatric expert. He has failed to identify any point in those proceedings at which the court, given the evidence then available, acted contrary to the requirements of federal law.
We are not unconcerned about putting the proverbial cart before the horse in cases of this kind. Without question, defense counsel may be unable fully to understand and explain his client's mental state until an evaluation is performed. But Ake does not require defense counsel to guide the trial court through the depths of the defendant's psyche; all it requires is a minimum threshold showing that the defendant's sanity at the time of the offense is likely to matter at trial. No such showing was made in this case.
Even if we assume that Hightower made the showing Ake requires, we hold that the trial court met its constitutional obligation under Ake by providing Hightower with defense funds that could have been spent on the services of a psychiatric expert.
In addition to the $750 it granted specifically for a psychiatric expert, the court gave Hightower a lump sum of $5,000 for defense expenses. In Hightower's view, it would have been improper under the circumstances for his lawyers to use any portion of this lump sum for a psychiatric expert. The Georgia Supreme Court decided to the contrary on direct appeal, finding instead that Hightower could have used this lump sum “for a special investigator or other such expert assistance as [he] might choose.” Hightower v. State, 259 Ga. 770, 386 S.E.2d 509, 511 (1989). This finding of fact is entitled to a presumption of correctness, one that Hightower can rebut only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
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We turn finally to Hightower's claims of ineffective assistance of counsel.FN53 Hightower contends that his attorneys committed various errors at both phases of his trial and on direct appeal.
FN53. We affirm without further discussion the district court's rejection of the following 2 claims of ineffective assistance: (1) that trial counsel failed fully to investigate Hightower's case, develop mitigating evidence, and seek correct jury instructions; (2) that trial counsel distanced themselves from Hightower in front of the jury.
The governing standard is that of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Counsel's performance is constitutionally “deficient” when it “[falls] below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. We must avoid all temptation to “second-guess” counsel's decisions as to trial strategy. Id. at 689, 104 S.Ct. at 2065. Instead, we are to examine “the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690, 104 S.Ct. at 2066.
To establish prejudice, Hightower “ must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Put another way, he must establish that counsel's errors “undermine confidence in the outcome” of the case.FN54 Id.
FN54. The Strickland Court articulated different standards for challenges to convictions and sentences:
When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent [counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. 466 U.S. at 695, 104 S.Ct. at 2068-69. Although Hightower claims that his attorneys were ineffective at both phases of his trial and on direct appeal, he does not clearly differentiate between errors that affected the guilt determinations and errors that affected the sentences. This differentiation is of no consequence, as we reject each of Hightower's claims of ineffective assistance as to both phases of his trial and as to his direct appeal.
Ineffectiveness of counsel is a mixed question of law and fact. Id. at 698, 104 S.Ct. at 2070. Thus, we review these claims de novo. Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir.2000).
Hightower first argues that his counsel failed to maintain a coherent defense theory.FN55 We find no basis upon which to grant relief here.
FN55. Relatedly, Hightower claims that trial counsel were ineffective for failing to present the testimony of a “competent” psychiatrist.
In Part III, we hold that Hightower was not entitled under Ake to the assistance of a psychiatrist, but that in the alternative, even if he was so entitled, trial counsel received funds they could have used for a psychiatric expert. Hightower's ineffective assistance claim depends upon the second alternative. He states the issue succinctly in a footnote in his brief: “If the funds provided by the state court were adequate, then trial counsel should have spent them to hire the qualified psychiatrist they knew was crucial to their defense.” Essentially, Hightower challenges the way in which counsel spent the $5,750 in defense funds the court granted.
We conclude that Hightower has failed to establish Strickland deficiency in counsel's performance. Apart from blanket assertions that counsel should have spent some money on a psychiatrist, he gives no specific indication as to how they should have acted differently. He does not specify, for example, (1) how much counsel should have used for a “competent” psychiatrist; (2) whose services counsel should have declined to employ in order to retain a “competent” psychiatrist, e.g., the investigator, the jury specialist, or Dr. Albrecht, all of whom were paid out of the provided funds; or (3) whether counsel should have hired a psychiatrist in addition to, or instead of, Drs. Moore and Albrecht, the psychologists who testified at trial. Because he has failed to demonstrate with specificity how counsel erred in spending the funds, Hightower essentially asks us, in direct contravention of Strickland, to apply the benefit of hindsight to scrutinize counsel's spending decisions. 466 U.S. at 689, 104 S.Ct. at 2065. This we will not do.
Counsel testified at the hearing before the state habeas court that their strategy was to save Hightower's life, rather than to seek an acquittal. This was a reasonable strategic choice, given that Hightower confessed to the murders on the same day they occurred. Counsel only pursued this sentence-focused strategy after discussing it with Hightower and gaining his approval. Hightower has failed to articulate any concrete attorney error that prejudiced his defense.FN56 This claim must therefore fail.
FN56. Hightower contends that his attorneys prejudicially altered their theory of defense during the course of the trial. He points to the fact that counsel accepted a “guilty, but mentally ill” instruction at the guilt phase charge conference after initially opposing such an instruction. But we cannot see how Hightower suffered prejudice in this regard. Reasonably believing that a “not guilty” verdict was unlikely, counsel evidently felt that it was to Hightower's benefit for the jury to have an alternative to straight “guilty” verdicts. That the jury did not select this alternative is immaterial to a claim of ineffective assistance of counsel.
We must clarify that this ineffective assistance claim is wholly separate from a claim that Hightower raised in the state habeas court and the district court. Before those courts, he claimed that the trial judge erred by failing to give to the jury the complete “guilty, but mentally ill” instruction required by O.C.G.A. § 17-7-131(b)(3)(B). Both courts found this claim procedurally defaulted. The question before us is merely whether trial counsel were ineffective in not objecting to a “guilty, but mentally ill” instruction in the first instance. We conclude that they were not. As to the next question, i.e., whether the trial judge erred in giving an improper “guilty, but mentally ill” instruction, Hightower has not presented the question to us, and we therefore do not address it.
Hightower next claims that his attorneys were ineffective at trial for failing to challenge for cause or peremptorily strike two jurors who, in his view, appeared predisposed toward a death sentence.FN57 He also contends that defense counsel were ineffective on direct appeal for failing to enumerate as error the court's seating of these jurors. The district court found that even though counsel may have been deficient, Hightower failed to establish prejudice resulting therefrom. We agree.
FN57. Hightower also contends that counsel were ineffective at trial and on direct appeal because of their ignorance of the correct standard, i.e., Adams- Witt instead of Wainwright. See Part V. So stated, this claim misses the mark. Hightower cannot prevail on a claim of ineffective assistance without showing that he suffered prejudice. As to a reverse- Witherspoon-based claim of ineffective assistance, Hightower must show that counsel's ignorance of the correct standard resulted in the seating of jurors who were unconstitutionally biased in favor of death. Practically speaking, Hightower must show that because of their ignorance, defense counsel failed properly to deal with these unacceptable jurors, whether by neglecting to (1) challenge them for cause, (2) strike them peremptorily, or (3) claim on direct appeal that the trial judge erred by seating them. As with Hightower's main Witherspoon claims, we examine this ineffective assistance claim in a juror-specific manner.
We first consider his claim as to juror Paul Jensen. The relevant portion of defense counsel's voir dire of Jensen, i.e., that which revealed his attitude toward a death sentence, reads as follows: MR. BUICE: Mr. Jensen? Where are you on that? Would the fact that three people died ...? MR. JENSEN: He's convicted of three murders? MR. BUICE: Yes. MR. JENSEN: It would be very-it would determine-it [sic] would have to determine the case-the case would have to determine how I'd feel exactly, but it would be very hard for me not to vote for the death penalty because of three murders. MR. BUICE: Well, would the fact of three murders, then, tend to close your mind to other considerations? MR. JENSEN: Right now it would, but it would have to be determined by the severity of the case and what was involved in determining of the three murders.
Counsel challenged Jensen for cause on the grounds that (1) he was a college student whose worry about missed coursework would divert his attention, and (2) he appeared to favor a death sentence if drugs or alcohol had contributed to the commission of the crime. The court rejected the challenge.
We conclude that this brief voir dire exchange provides no basis for relief. FN58 Although Jensen suggested that he would favor a death sentence if three murders were established, he also indicated that he could not form an opinion on the sentences until he heard the evidence. Given the difficulty of reviewing such equivocal answers from the cold record, years after they were uttered, it is obvious why we accord great deference to trial judge determinations of juror bias. See, e.g., Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S.Ct. 844, 855, 83 L.Ed.2d 841 (1985) (holding that a trial court's determination of juror bias is a matter of fact, to be reviewed as such under 28 U.S.C. § 2254). The trial judge, in a superior position to observe Jensen's credibility and demeanor, refused to excuse Jensen for bias. We cannot say that Hightower suffered prejudice from counsel's failure to strike Jensen peremptorily or to allege on direct appeal that the court erred in seating him.
FN58. In support of his claim, Hightower offers no evidence beyond the excerpted portion of Jensen's responses that we reproduce here.
We next consider Hightower's claim as to juror Rufus Little. Defense counsel's voir dire of Little proceeded as follows: MS. GEORGE: ... I am going to again ask the same question and I am going to say this with two questions. If a person has been convicted of murder and the murder of three people, are you strongly in favor, somewhat in favor, or somewhat opposed to the death penalty? ... Okay, Mr. Little? MR. LITTLE: Strongly for it if it has been proven. MS. GEORGE: If it's been proven? MR. LITTLE: Yes. ... MS. GEORGE: If there were a conviction of three deaths [sic], three people involved, three people had died, could you vote for a life imprisonment, would that be severe enough punishment for you? ... How about you, Mr. Little? MR. LITTLE: I would have to hear the case. Three murders, you know, that's cruel, but there may be something out of it to prove without a doubt, well then a life would-I'd have to hear the case. ... MS. GEORGE: All right. How about you, Mr. Little? Would you automatically vote for the death penalty if there was a conviction of three people? MR. LITTLE: If they proved without a doubt he did it. MS. GEORGE: You would automatically do it? MR. LITTLE: If they proved without any doubt, based on the circumstances, I would. But it's hard to say until I hear the whole case. MS. GEORGE: But you did say if the person was convicted beyond a reasonable doubt, you would automatically vote for the death penalty? MR. LITTLE: Automatically-like I say I would automatically-like I say I would have to hear the case. Like I say I would automatically vote for the ... MS. GEORGE: That's all I have Your Honor.
Counsel did not (1) challenge Little for cause, (2) exercise a peremptory strike against him, or (3) claim on direct appeal that it was error to seat him. Again forced to review the cold record to detect bias,FN59 we decline to grant relief. In our view, Little's statements during voir dire, in their totality, do not reflect a pro-death sentiment sufficient to establish prejudice. Even as defense counsel sought to pin down his bias, Little continually expressed that he would need to hear the whole case before deciding on the proper punishment. We agree with the district court that Hightower failed to show that Little's views on the death penalty “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 424, 105 S.Ct. at 852.
FN59. Hightower produces no evidence as to Little beyond this excerpt of his examination.
We have considered Hightower's claims and find them to be without merit. The judgment of the district court is, accordingly,
Hightower v. Terry, 459 F.3d 1067 (11th Cir. 2006) (Habeas).
Background: Following affirmance on appeal for defendant's state convictions for murder and imposition of the death penalty, defendant filed petition for writ of habeas corpus. The United States District Court for the Middle District of Georgia, No. 96-00097-3-CV-DF, Duross Fitzpatrick, J., denied his application and the Court of Appeals. 365 F.3d 1008, affirmed. Certiorari was granted. The Supreme Court vacated judgment, and remanded to the Court of Appeals for further consideration in light of the Court's decision in Miller-El v. Dretke.
Holding: On remand from the United States Supreme Court, the Court of Appeals, Tjoflat, Circuit Judge, held that petitioner's failure to allege in his habeas petition to the district court that counsel were ineffective in the state supreme court for failing to advance his comparisons of black jurors struck by the prosecutor to white jurors accepted by the prosecutor precluded federal habeas court from entertaining the argument. Reinstating 365 F.3d 1008. Wilson, Circuit Judge, dissented and filed opinion.