Executed May 6, 2008 07:51 p.m. by Lethal Injection in Georgia
1st murderer executed in U.S. in 2008
1100th murderer executed in U.S. since 1976
1st murderer executed in Georgia in 2008
41st murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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(1) |
William Earl Lynd W / M / 33 - 53 |
Ginger Moore W / F / 26 |
Citations:
Final Meal:
Two pepper jack BBQ burgers with crisp onions, two baked potatoes with sour cream, bacon and cheese, one large strawberry milkshake, from a local restaurant.
Final Words:
Internet Sources:
Georgia Department of Corrections (William Earl Lynd)
Lynd, William EarlContact: Susan Phillips, Director of Public Information, Office of Public Affairs
For Immediate Release: Lynd Execution Media Advisory - Inmate requests last meal
Atlanta – Georgia Department of Corrections
James E. Donald, Commissioner
ATLANTA–Condemned murderer William Earl Lynd is scheduled for execution by lethal injection at 7:00 p.m. on Tuesday, May 6, at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Lynd was sentenced to death for the December, 1988 murder of Ginger Moore in Berrien County.
Media witnesses for the execution are Shannon McCaffrey, Associated Press; Donna Branch, WTHO-FM, Thompson Georgia, Josephine Bennett, Georgia Public Broadcasting, Debbie Cole, The Berrien Press, and Macon Telegraph.
Lynd has requested as his last meal two pepper jack BBQ burgers with crisp onions, two baked potatoes with sour cream, bacon and cheese, one large strawberry milkshake, from a local restaurant.
There have been 40 men executed in Georgia since the U.S. Supreme Court reinstated the death penalty in 1973. If executed, Lynd will be the 17th inmate put to death by lethal injection. There are presently 112 men and one female 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 4:00 p.m. on Tuesday.
"Lynd is First Person in U.S. Executed Since Moratorium," by Rhonda Cook. (May 06, 2008)
Jackson — Almost 20 years after murdering his ex-girlfriend, William Earl Lynd became the first person in the United States to die by lethal injection since an unofficial moratorium was placed on executions while the U.S. Supreme Court decided the constitutionality of the procedure.
Despite the last-ditch appeals to the state Board of Pardons and Paroles and the state and federal courts over the past few days, Lynd was executed and pronounced dead at at 7:51 p.m. Tuesday, 17 minutes after the first drug began flowing into his veins. He was the 41st man Georgia has executed since 1983, the 19th by lethal injection.
Lynd's execution is expected to be followed soon by several in Georgia and other states. There is one scheduled in Mississippi for May 21 and in Virginia for May 27, and more planned throughout the summer in Texas, Louisiana, Virginia and Oklahoma. "It's going to crank up again," said lethal injection expert and Fordam Law School professor Deborah Denno. "Life is going back to the way it was" before executions nationwide were unofficially put on hold last October until the U.S. Supreme Court could rule on the constitutionality of lethal injection, the method of execution used in Georgia and 36 other states. That decision upholding lethal injection came April 16.
While Lynd's execution was quickly scheduled, Georgia, Attorney General Thurbert Baker also asked the state Supreme Court to lift two stays issued last October. Both Jack Alderman, sentenced to die for the 1974 murder of his wife in Chatham County, and Curtis Osborne, condemned for a 1990 double murder in Spalding County, were schedule for executions that were called off last fall. Their stays have not been lifted yet. Another condemned killer, Samuel David Crowe, also could be executed soon for a 1988 murder and armed robbery in Douglas County, as the U.S. Supreme Court refused to hear his appeal just days after deciding last month lethal injection was constitutional.
With Lynd's execution, there were no last minute court-issued stays. The 34-minute delay was so the state's lawyers could make final checks with various courts.
As he was being executed, a dozen death penalty opponents stood in quiet protest about a mile from the sprawling Georgia Diagnostic and Classification Prison just outside of Jackson. They held signs proclaiming their opposition. "End state killing," one sign read. Another proclaimed "not in my name." They also stood in a circle while they prayed and sang. And just a few yards away, two women from High Falls waited in support of his execution and to show support for the victim's family. "They waited for news of Lynd's death at a picnic table a few yards from the death penalty protesters. "They shouldn't let so many years go by," said Claudia Bishop. "I feel for the victim's family and for his family but not for him."
Prison spokesman Paul Czachowski said Lynd spent much of his last day visiting with a sister and a girlfriend. He was "somber," and requested a mild sedative to calm him in the hours before going to his death. Lynd's brother and sister-in-law witnessed the execution while his mother and other relatives waited elsewhere in the prison. Lynd said only "no" when asked if he had a final statement. He also declined a prayer.
Lynd was sentenced to death in Berrien County in far South Georgia for killing his live-in girlfriend, Ginger Moore, on Dec. 22, 1988. According to testimony, Lynd and Moore got into an argument and he shot her in the face, wounding her. She followed Lynd to the front porch where he shot her a second time. Lynd put her in the trunk of a car and drove away. Trial testimony was that he killed her when he shot her a third time because she continued to thump on the trunk. But a medical examiner now says Moore was not alive when Lynd put her in the trunk, according to his appeals, and that should have made him ineligible for the death sentence because kidnapping does not apply to someone who is dead.
Lynd's attorney, Tom Dunn, said a lack of money prevented him from presenting those findings that might have spared Lynd from a death sentence. "In my 20 years of capital defense work, except for DNA exonerations, I have never had a clearer factual basis for relieve," Dunn said in a written statement. "No mincing of words. Just objective medical and physical evidence. Unfortunately, it came too late because of the lack of funds to hire the necessary experts."
"Lethal Injection Still Set Tonight; Clemency Denied, But Lawyers Hope For a Stay," by Bill Rankin. (May 6, 2008)
Condemned killer William Earl Lynd was denied clemency Monday, setting him on course to be executed by lethal injection tonight. Unless granted a stay, Lynd will be the first inmate executed nationwide since September when the U.S. Supreme Court decided to hear a challenge to lethal injection procedures. Last month, the court upheld the constitutionality of lethal injection, ending a de facto moratorium on executions.
Lynd, 53, was sentenced to death in Berrien County in South Georgia for the Dec. 22, 1988, murder of Ginger Moore, his live-in girlfriend. On Monday, the state Board of Pardons and Paroles rejected his clemency bid. Lynd's attorneys are now asking the Georgia Supreme Court to stay the execution. They contend Lynd's conviction was obtained with flawed testimony which has no basis in medical science. This argument apparently has caught the attention of the state Supreme Court, which has asked attorneys on both sides to answer questions about evidence presented to the jury at trial.
According to testimony, Lynd shot Moore in the face during an argument. Moore regained consciousness, followed Lynd outside, and he shot her again. Lynd put Moore in the trunk of a car and drove away. What happened next is in dispute. At trial, prosecutors argued Moore was still alive when Lynd put her in the trunk. According to testimony, Lynd heard a thumping sound, got out, opened the trunk and shot Moore a third time, killing her. But Lynd's lawyers now say there is no evidence that Moore was alive when she was put in the trunk.
Lynd later buried Moore's body in a shallow grave in Tift County and drove to Ohio, where he shot another woman, who told police about the shooting before she died. Lynd was arrested Dec. 31, 1988, and his account of Moore's killing to authorities was used against him at trial.
Lynd's jury found two aggravating factors that made the murder eligible for the death penalty —- kidnapping with bodily injury and aggravated battery. For Lynd to have kidnapped Moore, she had to still be alive when he put her in the trunk. Wayne Tillman, the medical examiner, told jurors he believed Moore was alive when she was put in the trunk. Though Tillman was not a licensed physician, he was referred to as "Doctor" by lawyers during the trial.
Lynd's lawyers say Moore was dead when she was in the trunk because of the absence of evidence of heavy bleeding from a head wound. In an affidavit, Tillman now says that after looking at photos of the trunk —- photos he says he was not shown before he testified —- Moore's heart "was most likely not pumping when she was put in the trunk of the car."
Lynd's lawyers told the state Supreme Court the killing was without premeditation and fueled by substance abuse. "Tragic —-yes. Cold-blooded —- no," they said.
The state attorney general's office said Lynd's own confession supports the conclusion Moore was alive when she was put in the trunk.
Lynd is to be executed at 7 p.m. He has requested his last meal: two pepper jack barbecue burgers with crisp onions; two baked potatoes with sour cream, bacon and cheese; and one large strawberry milk shake. Since the U.S. Supreme Court reinstated the death penalty in 1976, 40 men have been executed in Georgia. Lynd would be the 18th put to death by lethal injection. There are now 109 men and one woman on Georgia's death row.
"Georgia Man Executed, Ending 7-month Moratorium." (Associated Press May 6, 2008)
JACKSON, Ga. - A Georgia man who killed his live-in girlfriend was executed Tuesday, the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injections. William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press. It came less than an hour after the U.S. Supreme Court rejected efforts to block it.
The roughly three dozen states around the country that use lethal injection held off on carrying out any executions for more than seven months while the U.S. Supreme Court reviewed the constitutionality of the three-drug cocktail that's used. It was the longest pause in U.S. executions in a quarter century. The Supreme Court last month upheld the legality of lethal injections, and Georgia was the first state to carry one out.
Lynd, 53, was sentenced to die for kidnapping and shooting his live-in girlfriend, Ginger Moore, three times in the face and head two decades ago. After he buried Moore's body in a shallow grave near a south Georgia farm, authorities said Lynd fled to Ohio, where he shot and killed another woman who had stopped along the side of the road to help him.
Lynd has never denied killing Moore, 26, two days before Christmas in 1988. But his lawyers had sought a last minute reprieve from the courts, arguing that new forensic medical evidence showed he could not have kidnapped her because she was already dead when he stuffed her in the trunk of her car. Prosecutors allege that Moore was still alive when Lynd placed her in the trunk despite two gunshot wounds to the head. They say Lynd confessed to authorities that he fired the final, lethal shot when he heard her ``thumping around'' in the trunk. The kidnapping had been an essential ``aggravating'' circumstance that made Lynd eligible for the death penalty.
Lawyers say Lynd and Moore had a volatile relationship and were in a heated argument over a trip to Florida when he shot her. His attorney, Tom Dunn, argued that the shooting was not premeditated but, rather, took place during an argument and after taking Valium, marijuana and alcohol, and was not premeditated. In the days leading up to Lynd's execution, Dunn asked several courts, including the U.S. Supreme Court, to block it but was turned down each time.
Death penalty opponents staged vigils around the state Tuesday night to protest the first of an expected wave of executions around the country. Texas conducted the nation's last execution, putting Michael Richard to death on Sept. 25, 2007, the same day the Supreme Court agreed to consider a Kentucky case brought by two prisoners who claimed the lethal injection method violated the constitutional ban on cruel and unusual punishment.
William Earl Lynd was sentenced to death for the 1988 murder of his live-in girlfriend, Ginger Moore. Lynd and Ginger lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot Ginger in the face and went outside to smoke a cigarette. Ginger regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing Ginger "thumping around" in the trunk, Lynd got out, opened the trunk and shot Ginger a third time, killing her. Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried Ginger in a shallow grave.
He then drove to Ohio. Lynd later killed 42-year-old Detroit resident Leslie Joan Sharkey after attacking her on the side of a road near Chesapeake, Ohio. Leslie was shot on Christmas Day as she traveled to West Virginia for a family gathering. According to the Georgia attorney general's office, Lynd was able to convince Leslie Sharkey that her car was damaged after attracting her attention by flashing his headlights at her. When she pulled her car over to the side of the road, Lynd attacked her and shot her three times. Leslie was able to drive away and tell police what happened before she died. Lynd fled and later pawned the gun he used to kill both women. He traveled to Texas and Florida, then eventually returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and Ginger Moore's body was located based on information provided by Lynd. Testimony in the punishment phase showed that Lynd had also kidnapped and sexually assaulted another woman.
"Georgia Man Executed, Ending 7-Month Moratorium," by Shannon McCaffrey. (May 6, 2008)JACKSON, Ga. (AP) — A Georgia man who killed his live-in girlfriend was executed Tuesday, the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injections. William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press. It came less than an hour after the U.S. Supreme Court rejected efforts to block it.
The roughly three dozen states around the country that use lethal injection held off on carrying out any executions for more than seven months while the U.S. Supreme Court reviewed the constitutionality of the three-drug cocktail that's used. It was the longest pause in U.S. executions in a quarter century. The Supreme Court last month upheld the legality of lethal injections, and Georgia was the first state to carry one out.
Lynd, 53, was sentenced to die for kidnapping and shooting his live-in girlfriend, Ginger Moore, three times in the face and head two decades ago. After he buried Moore's body in a shallow grave near a south Georgia farm, authorities said Lynd fled to Ohio, where he shot and killed another woman who had stopped along the side of the road to help him.
Lynd has never denied killing Moore, 26, two days before Christmas in 1988. But his lawyers had sought a last minute reprieve from the courts, arguing that new forensic medical evidence showed he could not have kidnapped her because she was already dead when he stuffed her in the trunk of her car.
Prosecutors allege that Moore was still alive when Lynd placed her in the trunk — despite two gunshot wounds to the head. They say Lynd confessed to authorities that he fired the final, lethal shot when he heard her "thumping around" in the trunk. The kidnapping had been an essential "aggravating" circumstance that made Lynd eligible for the death penalty.
Lawyers say Lynd and Moore had a volatile relationship and were in a heated argument over a trip to Florida when he shot her. His attorney, Tom Dunn, argued that the shooting was not premeditated but, rather, took place during an argument and after taking Valium, marijuana and alcohol, and was not premeditated. In the days leading up to Lynd's execution, Dunn asked several courts, including the U.S. Supreme Court, to block it but was turned down each time.
Death penalty opponents staged vigils around the state Tuesday night to protest the first of an expected wave of executions around the country.
Texas conducted the nation's last execution, putting Michael Richard to death on Sept. 25, 2007, the same day the Supreme Court agreed to consider a Kentucky case brought by two prisoners who claimed the lethal injection method violated the constitutional ban on cruel and unusual punishment.
"Lynd's Execution Nears," by Dean Poling. (May 03, 2008)
As a group of reporters chatted during a recess in the 1990 murder trial of William Earl Lynd, former WALB-TV reporter Jerry Gunn said the case was like something out of a Willie Nelson outlaw song.
Lynd was on trial for brutally shooting his girlfriend, Virginia “Ginger” Moore, during an argument two days before Christmas 1988 at their Berrien County residence. Leaving her in a shallow grave, Lynd drove to the Ohio-West Virginia area, a region where he had lived during his youth. There, he shot a school teacher during a bungled robbery on Christmas day. The teacher died of complications from her wounds.
By then, Lynd was traveling to Texas where, according to some testimony, he considered killing a woman from his past. Instead, in Texas, he visited his brother, who talked William Earl Lynd into surrendering. Together, the Lynd brothers drove back to Georgia, where William Earl Lynd surrendered to the Berrien County Sheriff’s Department on New Year’s Eve 1988. In jail, after taking his confession, Lynd reportedly said helping authorities find Ginger Moore’s body was the right thing to do. Throughout the first week of 1989, Lynd tried recalling where he had buried Moore on the night of Dec. 23, until finally they found her remains.
No disrespect was intended by referring to these awful events as being similar to something from a Willie Nelson song. It was merely one reporter’s attempt to get a grip on that deadly week in Lynd’s life, which led to the deaths of two women. None of the other reporters who heard Gunn’s reference disagreed with him. Given that reporters write stories, it was a way to better understand the plot of the Lynd murder trial, which continued in the Berrien County Courthouse, every day, including a Saturday and Sunday, for nearly two weeks in late February 1990. The jury found Lynd guilty of kidnapping and murdering Moore and sentenced him to death.
Yet, for nearly 20 years, it has been a story without an end. That end likely comes this Tuesday evening when William Earl Lynd, now in his early 50s, is scheduled to die by lethal injection at the Georgia Diagnostic and Classification Prison in Jackson.
***
On Monday, if all goes as scheduled, William Earl Lynd, No. 437139, will be moved from his cell on the Jackson facility’s death row, where he’s been since 1990, to a cell next to the chamber, says Paul Czachowski, Department of Corrections office of Public Affairs manager.
He will be allowed visitation with family. Lynd has children, though it is not known if they will visit. On a prison Voices from the Inside Web site, Lynd wrote in 2005, “All friends and those I cared about over the last 16 years have all slowly drifted away and out of my life.” However, on the same site, he lies about his age by a decade, claiming he was 40 years old at a time when he would have been turning 50. After he has visitors, if he has visitors, a chaplain will visit Lynd.
There will be a last meal. An inmate facing execution is allowed anything he wishes, Czachowski says, within reason. Lynd has selected and will receive two pepper-jack barbecue burgers, two baked potatoes with sour cream, bacon and cheese, and a strawberry milkshake.
As Tuesday progresses, Department of Corrections will implement what they rehearsed without Lynd this past Friday afternoon. Tuesday will be no rehearsal, and Lynd will be very much involved.
As the 7 p.m. execution draws near, Lynd will be offered a mild sedative, which he can accept or refuse. At 7 p.m. Tuesday, unless Gov. Sonny Perdue stays the execution, Lynd will be removed from his cell and placed on a gurney. He will be escorted by a team to the chamber, where officers will strap him to the gurney. A registered nurse will put a line into each of Lynd’s arms; one line serves as a back-up.
Georgians for Alternatives to the Death Penalty
Georgia to End National Freeze on Executions
Opponents to Hold Vigils Around the State
Atlanta – Tonight, Tuesday, May 6, opponents of the death penalty will observe seven vigils across Georgia as the state plans to execute William Earl Lynd by lethal injection at 7pm. Yesterday, the Georgia Board of Pardons and Paroles denied clemency. The Georgia Supreme Court is still reviewing the case.
Lynd’s pending execution is the first to be scheduled in the nation following the decision handed down on April 16 by the US Supreme Court in Baze v. Rees. The Court affirmed the lethal injection protocol used in Kentucky, which effectively lifted the national moratorium on executions.
“In light of the many well-documented problems with our death penalty system, it is disturbing that Georgia is rushing to lead the country in resuming the death penalty machinery,” said Laura Moye, Chair of Georgians for Alternatives to the Death Penalty (GFADP). As is the usual practice, Georgians opposed to the death penalty will gather to observe vigils on the night of the pending execution at death row, the state capitol and other locales to protest the state’s power to end human life.
In the Baze decision, Justice Stevens challenged the utility of the death penalty. He stated that the main justifications for capital punishment are no longer being accomplished. Many studies have shown that the death penalty does not serve as a deterrent to murder and costs more than life without parole. Further, it is riddled with problems of racial and economic bias, arbitrariness and mistakes that lead to 80% of cases being reversed.
Seven vigils are currently scheduled. “We will be taking a public stand against the state killing in our name as a futile and brutalizing exercise that we believe make us no less safe nor whole,” said Moye.
ATLANTA, Georgia (CNN) -- A Georgia man convicted of kidnapping and killing his girlfriend was executed Tuesday. A Geogia official says executed killer William Earl Lynd did not make a final statement. William Earl Lynd was the first inmate to die by injection since September, when the U.S. Supreme Court agreed to consider whether the three-drug combination represented cruel and unusual punishment.
The process began at 7:34 p.m. and ended 17 minutes later at 7:51 p.m., said Paul Czachowski, public affairs manager for the Georgia Department of Corrections. "The condemned declined to make a last statement or accept a prayer; he remained quiet and calm throughout the whole procedure," he said.
Lynd, 53, had requested as his last meal two pepper jack BBQ burgers with crisp onions, two baked potatoes with sour cream, bacon and cheese and a large strawberry milkshake -- all from a local restaurant. The U.S. Supreme Court had refused to stay Lynd's execution hours earlier Tuesday. "The application for stay of execution of sentence of death presented to Justice [Clarence] Thomas and by him referred to the court is denied," the court said.
Georgia became the first state to resume executions since the court validated the lethal injection process last month with a ruling in a Kentucky case. All but one of the 36 states with capital punishment use a three-drug mixture: an anesthetic, a muscle paralyzer and a heart-stopping substance. Death penalty opponents have argued that if inmates are not given enough anesthetic, they could be conscious enough to suffer excruciating pain without being able to express it because of the paralyzer.
The court's decision in the Kentucky case prompted about a dozen states to announce they would resume executions. Watch a report on the decision » On Monday, Texas officials said they plan to execute Mexican-born Jose Medellin in August for the gang rape and murder of two teenage girls 15 years ago in Houston. In Mississippi, authorities had planned to execute Earl Wesley Berry on Monday, but the state Supreme Court set the date for May 21. Berry was convicted of kidnapping a woman from a church parking lot in 1987, beating her to death and dumping her body in a wooded area.
In the Georgia case, Lynd was convicted of fatally shooting his girlfriend, Virginia "Ginger" Moore, in Berrien County in 1988. During the trial, prosecutors painted Moore's death as especially agonizing and lengthy. According to trial testimony, Lynd shot Moore in the face, and she fell unconscious onto a bed. He then went outside to smoke a cigarette. Moore regained consciousness and staggered outside, where she was shot a second time and put into the trunk of her car. After driving to a nearby farmhouse, Lynd said he heard Moore kicking inside the trunk, according to testimony. He opened the trunk and shot her a third time, this time fatally.
As the sentence was being carried out, about 20 opponents of the death penalty prayed and sang songs outside the prison, located 45 minutes south of Atlanta, said Laura Moye, chairwoman of Georgians for Alternatives to the Death Penalty. "We're here to express our opposition to the state of Georgia taking human life on behalf of U.S. citizens of Georgia," she said. "We are sad and upset that our state is leading the country in resumption of executions. We think this rush to executions is irresponsible in light of the many well-documented problems that have been revealed about the death penalty."
Human rights groups have also raised the possibility that an innocent person could be put to death. They pointed to Friday's release in North Carolina of Levan "Bo" Jones, an African-American inmate who spent 14 years on death row before a judge said the evidence was faulty and overturned his murder conviction. The charges have been dropped. Georgia prosecutors, however, maintain that the death penalty is carried out fairly in their state. "There's been no evidence in this state -- and I'm not aware of any in the country -- that any demonstrably innocent person has been put to death," said Tommy Floyd, chairman of the Prosecuting Attorneys' Council of Georgia. "No prosecutor I know wants to execute an innocent person."
There have been 40 executions in the state since the Supreme Court reinstated the death penalty in 1976, ruling in a Georgia case. Lynd was the 17th inmate executed by injection in the state.
In Virginia, a May 27 execution date has been set for death row inmate Kevin Green, and the state is proceeding on schedule, said David Clementson of the Virginia attorney general's office. Four executions are set in Texas for June and July; in Louisiana, former New Orleans police officer Antoinette Frank is set to die in July. If she is executed, she would be the first woman put to death in three years.
South Dakota, which has sent one inmate to death in three decades, has scheduled a lethal injection in October. Florida, Alabama, Arkansas, Illinois and Oklahoma have said they will resume capital punishment as soon as possible. Nebraska is the only state that does not use lethal injection, but its use of the electric chair was ruled unconstitutional in February. Texas and Mississippi are among the states that use 2 grams of sodium thiopental, the anesthetic used to render condemned inmates unconscious. Kentucky and other states use 3 grams, a standard that the Supreme Court judged to be constitutional.
Lynd v. State, 262 Ga. 58, 414 S.E.2d 5 (Ga. 1982) (Direct Appeal).
Defendant was convicted of kidnapping with bodily injury and murder, and sentenced to death, following jury trial in the Superior Court, Berrien County, W.D. Knight, J., and defendant appealed. The Supreme Court, Hunt, J., held that: (1) trial court properly excused for cause juror opposed to death penalty; (2) trial court properly refused to disqualify juror with pro-death penalty bias; (3) enumerations of error not timely raised are waived, except plain error; (4) trial court properly appointed counsel, even though defendant had retained counsel; (5) evidence of subsequent murder was admissible; and (6) sentence of death was not excessive. Affirmed. Benham, J., filed concurring opinion.
HUNT, Justice.
William Earl Lynd was convicted in Berrien County of kidnapping with bodily injury and murder and sentenced to death. He appeals. We affirm. FN1
FN1. The crime occurred December 22 or 23, 1988. The defendant was arrested on December 31, 1988. He filed a special plea of incompetence, which was tried before a jury on October 23 through 25, 1989. Having been found competent to stand trial, the trial of the case-in-chief began on February 19, 1990 and concluded on February 27, 1990. A motion for new trial was filed the next month and denied after hearing on March 5, 1991. The case was docketed in this court on May 16, 1991, and argued orally on September 11, 1991.
1. Lynd and the victim lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot the victim in the face and went outside to smoke a cigarette. The victim regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing the victim “thumping around” in the trunk, Lynd got out, opened the trunk and shot the victim a third time, killing her.
Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried the victim in a shallow grave. He then drove to Ohio. Lynd shot and killed another woman in Ohio and then sold the gun he used to kill her and the victim in this case. Eventually, Lynd returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and the victim's body was located based on information provided by Lynd. The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The denial of sequestered voir dire was not an abuse of discretion. Sanborn v. State, 251 Ga. 169(3), 304 S.E.2d 377 (1983). There was no denial of individual voir dire. State v. Hutter, 251 Ga. 615, 307 S.E.2d 910 (1983).
3. The record supports the trial court's conclusion that the defendant could receive a fair trial in Berrien County and that a fair and impartial jury was selected in this case. There was no error in the denial of the defendant's motion for change of venue. Isaacs v. State, 259 Ga. 717(15), 386 S.E.2d 316 (1989).
4. “A trial court retains the discretion to determine how late to hold court before recessing for the evening.” Spencer v. State, 260 Ga. 640, 647(9), 398 S.E.2d 179 (1990). Lynd has not shown that the trial court maintained an “oppressive” trial schedule which left defense counsel insufficient time to review each day's proceedings or to prepare for the next.
5. The trial court did not err by excusing for cause a prospective juror who testified he was opposed to the death penalty and could not vote for a death sentence in any case regardless of the evidence. Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985).
6. Nor did the court err by refusing to disqualify another prospective juror for pro-death penalty bias. Although the juror was somewhat confused by the initial questions about the death sentence, the juror ultimately testified that he could consider and possibly vote for a life sentence after hearing all the evidence, and that he would “not just automatically” vote for a death sentence in the event the defendant was convicted. The trial court was authorized to conclude that the juror's views would not “ ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ [Cits.]” Alderman v. State, supra. Compare Pope v. State, 256 Ga. 195(7e), 345 S.E.2d 831 (1986).
7. In the final enumeration of error of his original brief, Lynd contends the evidence fails to support the jury's findings of statutory aggravating circumstances. The jury found: (1) The offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: kidnapping with bodily injury [see OCGA § 17-10-30(b) (2) ]. (2) The offense of murder was committed while the offender was engaged in the commission of an aggravated battery. [See ibid.].
Lynd argues he did not commit the offense of kidnapping with bodily injury because the victim was unconscious after the second shot. However, even if we were to accept the untenable assumption the victim could not have been taken “against her will,” see OCGA § 16-5-40(a) (defining kidnapping), if she were unconscious the entire time, see Taylor v. State, 194 Ga.App. 871(2), 392 S.E.2d 57 (1990), the evidence is persuasive that she regained consciousness and vigorously protested her confinement in the trunk of her car before Lynd shot her a third time and killed her.
As to the aggravated battery finding, the evidence shows that Lynd seriously disfigured the victim with his first shot beneath her left eye. See OCGA § 16-5-24 (defining aggravated battery). The evidence supports the jury's findings of statutory aggravated circumstances. OCGA § 17-10-35(c)(2).
8. Over two months after this case was argued orally to this court, Lynd filed a “supplemental brief” raising and arguing eight additional enumerations of error not raised or argued previously. The Attorney General has moved to exclude these supplemental enumerations as untimely, relying on Cohran v. Carlin, 254 Ga. 580(1a), 331 S.E.2d 523 (1985), which holds that “[a]rguments asserted for the first time in a post-oral argument brief are untimely, and will not be considered.” Id. at 584, 331 S.E.2d 523.
Our Georgia Unified Appeal Procedure states: “The Supreme Court shall review each of the assertions of error timely raised by the defendant during the proceedings in the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court. However, except in cases of plain error, assertions of error not raised on appeal shall be waived.” [UAP, § IV(B)(2).]
If assertions of error “not raised” are waived, it follows that assertions of error not timely raised are also waived. Because there may have been some reasonable question about the applicability of the Cohran v. Carlin rule to death penalty cases, we will not apply it to this case, and we therefore deny the Attorney General's motion to exclude. See Ford v. State, 257 Ga. 661, 665, 362 S.E.2d 764 (1987) (Gregory, J., dissenting). In the future, however, except in cases of “plain error,” FN2 enumerations of error not timely raised and/or argued shall be waived.
FN2. “Plain error” is that which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice” or which “seriously affects the fairness, integrity or public reputation of a judicial proceeding.” U.S. v. Fuentes-Coba, 738 F.2d 1191, 1196 (11th Cir.1984).
9. Initially, an attorney was appointed for the defendant. Soon thereafter, the defendant retained an attorney to represent him. At a hearing on March 24, 1989, the trial court questioned the two attorneys about their experience and qualifications. The retained attorney testified that he had graduated from law school in 1986 and had been admitted to the Georgia bar in September of 1987. He had maintained a law office and a full-time practice in the year and a half since being admitted to the bar. He testified that although he had handled “probably” 25 criminal cases, he had actually tried only one felony case before a jury. This was his first death-penalty case.
The appointed attorney had been admitted to the bar for a little longer than 6 months and had not tried any cases before a jury.
After questioning these two attorneys, the trial court told Lynd it was troubled by his attorneys' lack of experience. As a consequence, notwithstanding that Lynd had expressed his satisfaction with his two attorneys, the court was going to require Lynd either to retain a more experienced attorney (in addition to or in lieu of his present retained attorney) or-if he could not afford to do that-to accept the appointment of a more experienced attorney to act as lead counsel in the case.
At the next hearing, on May 19, 1989, the court announced for the record that Lynd's original appointed attorney had been “relieved of any further responsibility in this case” and that another, more experienced attorney had been appointed by the court to represent the defendant and to act as lead counsel. Although he had been satisfied with his previous court-appointed attorney, Lynd now objected to the appointment of a “government-paid” attorney to represent him. According to his retained attorney, Lynd had been in “trouble in a lot of states, had a lot of trouble with the government, and he just does not trust a court-appointed attorney.”
Late in July, the defendant told the court he was financially “capable now of hiring my own attorney,” and asked the court to relieve his appointed attorney. However, when the court asked Lynd whom he intended to retain, Lynd stated he had only become “aware” of his new resources the previous evening and had not yet contacted any attorneys. The court declined to relieve Lynd's appointed attorney at that time, stating Lynd could not “just take lawyers on and off” and “drag” the case on for years. Later (hearing of August 25, 1989 at p. 5), when the defendant again claimed he could retain an additional attorney,FN3 the court ruled that the appointed attorney
FN3. The defendant had earlier filed an “affidavit of poverty” claiming he had no assets and no income. is going to stay on the team until such time as I see who this attorney is. And if such attorney that's employed is [sufficiently capable and experienced] ... then at such time, I will remove [the appointed attorney].
The defendant, however, never retained any additional attorneys, and was represented at trial by the appointed attorney as lead counsel and by his retained attorney as associate counsel.
(a) Lynd contends he was denied his 6th Amendment right to retain and be represented by the attorney of his own choosing.
A criminal defendant who is financially able to retain the services of an attorney has a constitutional right under the Sixth Amendment to “secure counsel of his own choice.” U.S. v. Friedman, 849 F.2d 1488, 1490 (D.C.Cir.1988). However, “[t]his does not mean that a defendant may retain any counsel at any time he wishes; there are limits to a defendant's right to counsel of choice.” U.S. v. Campbell, 874 F.2d 838, 848 (1st Cir.1989). A defendant's right to counsel may not “be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.” U.S. v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978). Moreover, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to insure that a defendant will inexorably be represented by the lawyer whom he prefers. [ Wheat v. U.S., 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988).]
A trial court therefore has the responsibility to balance a defendant's constitutional right to retain counsel of his choice against the need to maintain the highest standards of professional responsibility, the public's confidence in the integrity of the judicial process and the orderly administration of justice. [ U.S. v. Collins, 920 F.2d 619, 626 (10th Cir.1990).]
The trial court in this case fulfilled this responsibility. While the defendant's retained attorney was not presumptively incompetent to represent a defendant in a death-penalty jury trial, see U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), his inexperience was justifiably a matter of concern in a case sufficiently more complicated than the run-of-the-mill criminal trial to give pause even to far more experienced attorneys. Claims of ineffectiveness are routine in death-penalty cases, and not the less so in cases in which trial counsel was retained rather than appointed. See, e.g., Black v. State, 261 Ga. 791(19), 410 S.E.2d 740 (1991); Hammond v. State, 260 Ga. 591(10), 398 S.E.2d 168 (1990); Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244 (1990); Cook v. State, 255 Ga. 565(17), 340 S.E.2d 843 (1986). Given the serious potential for a post-trial claim of ineffectiveness resulting from retained counsel's almost total lack of criminal trial experience, the trial court acted within its discretion to require the defendant either to retain a more experienced attorney or accept the appointment of one.
(b) The defendant argues that he was not “allowed” to retain an additional attorney “although he was willing to go that far.” We disagree. Although Lynd stated to the court that he was willing and able to retain an additional attorney, he never did so. The trial court did not err by insisting that the appointed attorney remain on the case until such time as Lynd retained an additional attorney and presented him to the court.
(c) Lynd also argues that the attorney appointed by the court was laboring under a conflict of interest. Years previously, the appointed attorney had represented the victim's ex-husband in “a bankruptcy or something.” The attorney testified that he likely had represented the victim also, but he could not remember her. The victim's husband presently resides in Melbourne, Florida, according to the record, and did not testify in this case. The appointed attorney stated to the court that he was merely bringing the matter to the court's attention. Neither he nor the retained attorney suggested to the court how there was either an actual or serious potential for a conflict of interest. See Mitchell v. State, 261 Ga. 347, 405 S.E.2d 38 (1991).
(d) Finally, Lynd argues that the court's appointment interfered with retained counsel's independent decisions about how to conduct the defense. Of course, it is to be expected that the appointment of a lead counsel would diminish to some extent the right of retained counsel to make “independent” decisions about how to conduct the defense. But all Lynd can demonstrate is that the trial court refused to allow his retained attorney “to object anytime I want to.” A trial court acts well within its discretion when it requires that only one of two or more co-counsel conduct the examination of each witness, including interposing objections during the opposing party's examination of the witness. Cf. Isaacs v. State, 259 Ga. 717, 731(24), 386 S.E.2d 316 (1989).
“[T]he sheriff is an officer of the court, and may be excused from the rule [of sequestration of witnesses] on the court's own initiative. [Cits.]” Childs v. State, 257 Ga. 243, 251(11), 357 S.E.2d 48 (1987). The record does not show that any of the jury bailiffs were trial witnesses. Compare Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
11. The trial court did not err by excluding testimony of the defendant's mental health experts where the defendant refused to submit to an examination by mental health experts chosen by the state. Motes v. State, 256 Ga. 831, 832, 353 S.E.2d 348 (1987); Strickland v. State, 257 Ga. 230, 233, 357 S.E.2d 85 (1987). Such an exclusion is justified “by the State's overwhelming difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused and by the need to prevent fraudulent mental defenses.” Battie v. Estelle, 655 F.2d 692, 702 (5th Cir.1981). A criminal defendant can no more present psychiatric testimony without submitting to an examination by a state-selected psychiatrist than he may testify at trial without submitting to a cross-examination. FN4
FN4. We note that, according to the defendant's evaluation by his own experts (sealed by order of the trial court and included in the record on appeal), the defendant was competent to stand trial and was not insane at the time of the crime. Cf. Lindsey v. State, 252 Ga. 493(II), 314 S.E.2d 881 (1984).
12. Less than two days after Lynd killed the victim in this case, he was in southern Ohio, still driving the victim's car. Using the same gun he used to kill the victim in this case, he shot and killed a woman in Ohio. He pawned the murder weapon in nearby Huntington, West Virginia, and drove to Texas, where he abandoned the victim's car. Lynd contends the extrinsic homicide should not have been admitted in evidence. See OCGA § 24-2-2. We disagree. The Ohio homicide and the instant homicide “were part of a continuous course of conduct, closely connected in time ... and manner of commission.” Putman v. State, 251 Ga. 605, 608(2), 308 S.E.2d 145 (1983). It was as a consequence of the Ohio homicide investigation that the murder weapon was recovered. Moreover, evidence concerning this crime was strong evidence of the defendant's state of mind at a relevant time, and tended to rebut his contention that the homicide on trial was the result of the defendant's sudden heat of passion resulting from serious provocation. OCGA § 16-5-2 (defining voluntary manslaughter). This evidence was properly admitted. Ingram v. State, 253 Ga. 622, 632-34(6), 323 S.E.2d 801 (1984); Todd v. State, 261 Ga. 766(7), 410 S.E.2d 725 (1991).
The relevance of a previous incident in Tifton in which the defendant kidnapped and sexually assaulted another woman is less obvious; however, we conclude that any error in the admission of this testimony at the guilt phase of the trial was harmless in view of the overall strength of the evidence.
13. Extrinsic-offense evidence was not inadmissible simply because the defendant had not at the time of this trial been convicted of the extrinsic offenses. Hammond v. State, 260 Ga. 591(6), 398 S.E.2d 168 (1990). All of the extrinsic-offense evidence was properly considered at the sentencing phase of the trial. OCGA § 17-10-2. Hicks v. State, 256 Ga. 715(19), 352 S.E.2d 762 (1987).
14. The prosecutor's proffered explanations for peremptorily striking three black prospective jurors at the competency trial were sufficient to rebut any reasonable inference of racial discrimination. Hall v. State, 261 Ga. 778(2), 415 S.E.2d 778 (1991).FN5
FN5. The prosecutor struck one juror because he had information that the juror was a drug dealer, another because he had prosecuted the juror's son, and the third because her husband was the target of an ongoing criminal investigation. 15. The trial court's instructions on “reasonable doubt” were not erroneous. Potts v. State, 261 Ga. 716(14), 410 S.E.2d 89 (1991).
16. We find that the sentence of death was not imposed as the result of passion, prejudice or other arbitrary factor. OCGA § 17-10-35(c)(1). The sentence of death is not excessive or disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3). The similar cases listed in the Appendix support the imposition of a death sentence in this case.
Judgment affirmed. CLARKE, C.J., WELTNER, P.J., and BELL and FLETCHER, JJ., concur. BENHAM, J., concurs specially.
BENHAM, Justice, concurring specially.
Though I agree with the majority opinion's affirmance of appellant's murder conviction and death sentence, I write separately to shed more light on the issue of challenges to venirepersons under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Appellant contends the trial court erred in excusing one juror who had reservations as to his ability to impose the death penalty and in retaining another juror who expressed support for the death penalty. The majority opinion correctly states the rule as to how Witherspoon and “reverse- Witherspoon ” issues are to be handled. Majority opinion, Divisions 5 and 6. However, I write separately to focus attention on the need for trial courts to give as much attention to “reverse- Witherspoon ” challenges as that given to Witherspoon challenges. In the case in chief, appellant contends there are some structural imbalances in the present approach which allow the trial court to weed-out jurors with qualms about the death penalty and weed-in jurors who were prone to impose the death penalty. While the majority opinion, with which I agree, finds that the trial court's treatment of the matter was even-handed, we must continue to bring to the attention of trial courts the need to expend an equal amount of effort in rehabilitating jurors with qualms about imposing the death penalty as is expended in rehabilitating jurors who are death-prone.
Both the United States Constitution and the Georgia Constitution guarantee the right to a jury made up of a cross-section of the community. Sixth and Fourteenth Amendments to U.S. Constitution; 1983 Ga. Const. Art. I, Sec. I, Para. XI. Therefore, trial courts, in carrying out their obligations under Uniform Superior Court Rule 10.1, should endeavor to include rather than exclude jurors who have responded to the call to serve. Under Witherspoon, as modified by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), considerable attention has been focused on the need to challenge for cause those veniremen who cannot abide by the oath and instructions and impose the death penalty when the circumstances warrant. Unfortunately, an equal amount of attention has not been given to the need to assure that the jury is not composed only of death-prone jurors. To have such a constituted jury would be fundamentally unfair. .
Lynd v. Schofield, 470 F.3d 1308 (11th Cir. 2006) (Habeas).
Background: Following affirmance of his capital murder and kidnapping with bodily harm convictions and sentences, 414 S.E.2d 5, and denial of his state court habeas application, petitioner sought federal writ of habeas corpus. The United States District Court for the Middle District of Georgia, No. 01-00095-CV-HL, Hugh Lawson, J., 2005 WL 2877690, denied petition and granted certificate of appealability (COA) on two claims.
Holdings: The Court of Appeals, held that:
(1) petitioner could not obtain federal review of his Ake claim that had been state procedurally barred;
(2) state habeas court's conclusion that trial court properly excluded testimony of petitioner's mental health expert was not contrary to or an unreasonable application of clearly established federal law;
(3) state court's rejection of petitioner's claim that counsel was ineffective in advising him to refuse to submit to state mental health evaluation was not an objectively unreasonable application of Strickland or an unreasonable factual finding;
(4) state court's rejection of petitioner's claim that counsel was ineffective in failing to investigate mitigation evidence of petitioner's background, mental health, and substance abuse problems, was not an objectively unreasonable application of Strickland or an unreasonable factual finding;
(5) state court's rejection of petitioner's claim that he was prejudiced by counsel's failure to investigate whether victim could have regained consciousness after being shot twice in the head, precluding his conviction on kidnapping charge, was not an objectively unreasonable application of Strickland or an unreasonable factual finding; and
(6) state court's rejection of petitioner's claim that counsel was ineffective due to a conflict of interest based on his previous representation of victim and her ex-husband in a bankruptcy proceeding, was not an objectively unreasonable application of Strickland or an unreasonable factual finding. Petition denied.
PER CURIAM:
William Earl Lynd appeals from the denial of his petition, under 28 U.S.C. § 2254, for habeas corpus relief. Pursuant to 28 U.S.C. § 2253(c)(1)(A), we review on appeal the two issues specified in the Certificate of Appealability (“COA”). First, we review whether Lynd was deprived of his right to assistance from necessary and competent experts at his competency trial and at both phases of his capital trial. Second, we review whether Lynd was denied effective assistance of counsel because: (1) his retained counsel unreasonably advised him not to cooperate with a state mental health evaluation; (2) his counsel failed to conduct an investigation into Lynd's background, including his mental health and substance abuse problems; (3) his counsel failed to investigate adequately the State's case; and (4) his court-appointed counsel had a conflict of interest.
I. Background
The facts of the crime are described by the Georgia Supreme Court as follows:
Lynd and the victim [Virginia “Ginger” Moore] lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot the victim in the face and went outside to smoke a cigarette. The victim regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing the victim “thumping around” in the trunk, Lynd got out, opened the trunk and shot the victim a third time, killing her. Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried the victim in a shallow grave. He then drove to Ohio. Lynd shot and killed another woman in Ohio and then sold the gun he used to kill her and the victim in this case. Eventually, Lynd returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and the victim's body was located based on information provided by Lynd. Lynd v. State, 262 Ga. 58, 414 S.E.2d 5, 7 (1992).
Lynd was convicted of murder, in violation of O.C.G.A. § 16-5-1, and kidnapping with bodily injury, in violation of O.C.G.A. § 16-5-40(b). He was sentenced to death for the murder, and given a life sentence for the kidnapping. His conviction and sentences were affirmed on direct appeal. Lynd, 414 S.E.2d at 5. The Supreme Court of the United States denied certiorari. Lynd v. Georgia, 506 U.S. 958, 113 S.Ct. 420, 121 L.Ed.2d 342 (1992).
Lynd then filed a state petition for a writ of habeas corpus pursuant to O.C.G.A. §§ 9-14-40 et seq. , which was denied after an evidentiary hearing. The Supreme Court of Georgia denied Lynd's application for appeal and his motion for reconsideration and the Supreme Court of the United States denied certiorari and his petition for rehearing. Lynd v. Turpin, 533 U.S. 921, 121 S.Ct. 2533, 150 L.Ed.2d 703 (2001); Lynd v. Turpin, 533 U.S. 971, 122 S.Ct. 16, 150 L.Ed.2d 798 (2001).
Lynd next filed the instant federal habeas petition, raising twenty-three grounds for relief.FN1 The district court denied each of Lynd's claims, finding some to be procedurally barred and others to be meritless.FN2 Lynd v. Terry, No. Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D.Ga. Oct. 31, 2005). We address only the two claims for which the district court issued a COA.
FN1. Lynd also filed a “Motion for Leave to Conduct Discovery and Authorization and Payment of Necessary Expert and Investigative Services,” in which he requested funds for an expert investigator, a pathologist, a crime scene reconstruction expert, a mental health expert, a media content analyst, and a social psychologist. In separate motions, Lynd requested an evidentiary hearing and oral argument. Although the district court denied these motions, it noted that the COA should include the ancillary issues of the denial of Lynd's requests for discovery and an evidentiary hearing, and to hold the proceedings in abeyance. FN2. The district court found that sixteen of Lynd's claims were defaulted because Lynd failed to brief them, and that two other claims were defaulted for other reasons. In addition to the two claims that were certified on appeal, the district court rejected three more claims on the merits:1. The trial court's refusal to allow Petitioner to retain and be represented by counsel of his own choosing, and the trial court's continual interference with counsels' division of responsibility, violated Petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.2. The trial court's instructions to the jury in the guilt/innocence phase of Petitioner's trial violated Petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.3. The State withheld material exculpatory evidence and presented false and misleading testimony in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the analogous provisions of the Georgia Constitution. See Lynd v. Terry, No. Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D.Ga. Oct. 31, 2005).
II. Denial of the Use of Expert Mental Health Testimony
Lynd argues that he was deprived of his right to the assistance of necessary and competent mental health experts, and that the trial court's exclusion of available mental health testimony from his competency trial and from both phases of his capital trial violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution. The district court treated this claim as asserting two separate grounds for relief. We address each ground in turn.
First, Lynd argues that he was deprived of his right to the assistance of necessary and competent experts in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the Supreme Court held that “when a defendant demonstrates ... 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.” Id. at 83, 105 S.Ct. 1087; see also Conklin v. Schofield, 366 F.3d 1191, 1206 (11th Cir.2004) (setting forth elements of an Ake claim).
Lynd's counsel requested and received the appointment of an expert witness. Ultimately, for reasons discussed below, the trial court excluded the expert's testimony. Lynd argues that this exclusion constituted a de facto denial of his request for expert assistance, and that such denial rendered the trial fundamentally unfair.
[1] We may not consider the merits of this argument here because Lynd failed to raise it on direct appeal in the state courts. The first time Lynd raised his Ake claim was in his state habeas petition. Under Georgia law, a petitioner's “failure to ... pursue [an issue] on appeal ordinarily will preclude review by writ of habeas corpus,” unless the petitioner can show either “adequate cause” for his failure to pursue the issue and “actual prejudice,” or that a miscarriage of justice, caused by a substantial denial of constitutional rights, will occur. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754, 755 (1985). Because Lynd failed to raise his Ake claim on direct appeal, the state habeas court found that Blackprecluded review. The state habeas court also found that Lynd failed to establish that he qualified for an exception to the procedural bar.FN3 Accordingly, the state habeas court dismissed the claim as procedurally barred by a rule of state law. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir.1999) (Procedural default arises when “the state court correctly applies a procedural default principle of state law to arrive at the conclusion that the petitioner's federal claims are barred.”).
FN3. Specifically, the state habeas court found that Lynd failed to make the requisite showing of adequate cause and actual prejudice to justify his failure to pursue the claim on direct appeal, and failed to establish that a miscarriage of justice would occur if the habeas court did not review the claim. [2] [3] A procedural bar precludes federal review when it provides an adequate and independent state ground for denial of a claim.FN4 See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir.1995). Because the state habeas court found that these claims are procedurally barred, this Court cannot review the merits of Lynd's Ake claim unless he qualifies for at least one exception to the procedural bar.
FN4. To determine whether a state procedural bar constitutes an independent and adequate state rule of decision, the last state court rendering judgment must clearly and expressly state that it is relying on a state procedural rule to resolve the federal claim, must not decide the claim on the merits, and must base its decision entirely on an “adequate” state procedural rule. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). An adequate rule is one that is firmly established and regularly followed-that is, not applied in an arbitrary or unprecedented fashion. Id. Lynd has presented no evidence, nor made any argument, that the state habeas court applied Black's procedural rule in an inconsistent or unfair manner. In his brief, Lynd simply states that the Ake issue was “both factually and legally raised” on direct appeal, without any citation or argument to support the statement. [4] [5] A federal habeas petitioner may still obtain federal review of a claim that has been procedurally barred if he can demonstrate either (1) “cause for the [procedural] default and actual prejudice as a result of the alleged violation of federal law,” or (2) that the court's “failure to consider the [federal] claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Lynd fails to address either of these possibilities. He has not shown cause for his failure to raise the Ake claim on direct appeal; nor has he shown any actual prejudice. Further, he has not established that this Court's failure to consider the Ake claim will result in a fundamental miscarriage of justice. Therefore, this Court is precluded from reviewing Lynd's Ake claim on the merits.
Lynd's second ground for relief within Claim One is that the state trial court violated his constitutional right to present witnesses in his own defense when, due to Lynd's refusal to submit to a state mental health evaluation, the court excluded his mental health expert testimony from his competency trial and both phases of his capital trial. Lynd argues that this exclusion was improper because it could have provided mitigating information relevant to both his state of mind at the time of the crime and his ultimate sentence.
[6] [7] When a state trial court's evidentiary rulings violate a habeas petitioner's fundamental constitutional right to present witnesses in his own defense, a federal court must grant the petition. Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (identifying “the calling and interrogation of favorable witnesses” as a constitutional right “basic to our adversary system of justice”); United States v. Hurn, 368 F.3d 1359, 1363-66 (11th Cir.2004); Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984). However, a defendant's right to present witnesses is not unlimited. A state trial court has wide discretion in determining whether to admit evidence at trial, and may exclude material evidence when there is a compelling reason to do so. Boykins, 737 F.2d at 1543-44. A defendant's refusal to submit to an evaluation by a state expert, based on his own choice and not on the advice of ineffective counsel, may provide a compelling reason to exclude the defendant's expert testimony, even when the testimony is material. See, e.g., Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (stating in dicta that “[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case.”).FN5
FN5. We use the word “may” because there is no clearly established federal law on this issue. When there is only Supreme Court dicta addressing a particular question, a state court's conclusion cannot be contrary to clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that dicta in a United States Supreme Court opinion does not constitute clearly established federal law); Henderson v. Campbell, 353 F.3d 880, 890 n. 15 (11th Cir.2003) (internal citations omitted).
In denying this claim on direct appeal, the Georgia Supreme Court held that “the trial court did not err by excluding testimony of the defendant's mental health experts where the defendant refused to submit to an examination by mental health experts chosen by the state.” Lynd, 414 S.E.2d at 11. The state trial record indicates that Lynd refused to be interviewed by the state's expert on four separate occasions. Lynd testified in a pretrial hearing on October 5, 1989 that he would not speak with the state expert because he believed the expert had lied to him. On May 5, 1997, the state habeas court conducted an evidentiary hearing, at which Lynd's trial counsel testified, and found that “it was the Petitioner's refusal to be examined by the State's mental health professionals [and not his counsel's advice] that led to the exclusion of any mental health evidence regarding Petitioner's mental state and culpability.”
Because the Georgia Supreme Court denied this claim on the merits, and the state habeas court made factual findings concerning this claim, we must evaluate whether those rulings were either “contrary to, or involved an unreasonable application of, clearly established Federal law,” as determined by the United States Supreme Court, or were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). An independent review of the record indicates that there were sufficient facts to support the state habeas court's findings that Lynd refused a state evaluation for reasons unrelated to his counsel's advice. We cannot say that those findings were unreasonable. Nor can we say that the Georgia Supreme Court's ruling was contrary to federal law or an unreasonable determination of the facts. Accordingly, we deny this claim.
III. Ineffective Assistance of Counsel
Lynd's second claim is that he was denied effective assistance of counsel. Specifically, he argues that: (1) his retained counsel unreasonably advised him to refuse examination by a state mental health expert, resulting in the exclusion of defense expert testimony; (2) his trial counsel failed to investigate reasonably Lynd's background, mental health, and substance abuse problems, which could have revealed evidence providing support for a lesser conviction and sentence; (3) his trial counsel failed to investigate sufficiently the State's case, particularly medical testimony concerning the timing of the victim's death and the victim's ability to regain consciousness after being shot; and (4) his court-appointed counsel had a conflict of interest because he had previously represented the victim and her ex-husband in an unrelated bankruptcy proceeding.
For a petitioner to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he must show (1) that counsel's performance was deficient and (2) that the deficiency prejudiced him. Id. at 687, 104 S.Ct. 2052. Counsel's conduct is deficient when it falls “below an objective standard of reasonableness,” Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir.2000), in that it is “outside the wide range of professionally competent assistance,” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. To establish prejudice, there must be a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
The state habeas court held an evidentiary hearing on these issues on May 5, 1997, and ruled against Lynd on the merits. In reviewing this holding, we must determine whether the state court applied Strickland to the facts of the case in an objectively unreasonable manner or whether clear and convincing evidence compels the conclusion that its factual findings were unreasonable. Crawford v. Head, 311 F.3d 1288, 1311 (11th Cir.2002).
A. Counsel's Advice Concerning Lynd's Submission to State Evaluation
Lynd claims that his retained counsel was ineffective because he advised Lynd to refuse to submit to a state mental health evaluation. He argues that this conduct was unreasonable because Lynd's mental health was at issue during the trial and sentencing and his failure to submit to the evaluation resulted in the prejudicial exclusion of his expert testimony. See Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir.1983) (holding that defense counsel “must be familiar with the facts and the law in order to advise the defendant of the options available” such that the advice is “within the realm of competence demanded of attorneys representing criminal defendants”) (citations omitted).
As discussed above, at a pretrial hearing on October 5, 1989, Lynd testified that he would not submit to a state evaluation because he did not want to speak with the state expert. He believed the expert lied about what he said during a previous interview and did not want the expert to distort anything else he said. At the May 5, 1997 evidentiary hearing, Lynd's retained counsel stated, for the first time in the course of the proceedings, that he advised Lynd not to submit to a state expert evaluation because he believed the state trial court incorrectly denied Lynd a defense expert and “until [Lynd] got one there was no sense in giving [the State] the evaluation.” Based on the foregoing testimony, the state habeas court found that Lynd did not want to speak with the state expert because he did not trust him and that Lynd decided, of his own accord and apart from any advice given by counsel, to refuse to submit to an evaluation. Therefore the reasonableness of counsel's advice was immaterial. A review of the record indicates that the evidence supports the state habeas court's finding that Lynd did “not [make] the requisite showing that trial counsel's performance was inadequate.” Therefore, we cannot find that the state court applied Strickland to this case in an objectively unreasonable manner or made an unreasonable factual finding in light of the evidence presented in the state court proceedings.
B. Counsel's Failure to Investigate Lynd's Background
Lynd also claims that his trial counsel was ineffective for failing to conduct a reasonable investigation into Lynd's background, mental health, and substance abuse problems. Such an investigation, Lynd argues, would have yielded mitigating evidence relevant to both the guilt and sentencing phases of the trial.
A counsel's decision not to investigate and develop favorable evidence must be reasonable and fall within the range of professionally competent assistance. Strategic choices to forego further investigation into an issue are not deficient when a reasonable professional judgment based on a sufficient initial inquiry supports the decision to terminate the investigation. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. When counsel “totally fails to inquire into the defendant's past or present behavior or life history” in a capital case, his conduct is deficient. Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.2001); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.1995) (holding that representation is beneath standards of professional competence where counsel does not conduct sufficient investigation to formulate an adequate life profile of a defendant).
The state habeas court concluded that Lynd did not establish that his attorneys' conduct was deficient because his counsel adequately investigated his life history. In reaching this conclusion, the state habeas court found that Lynd had “not shown what further investigation could have been done by trial counsel which would have uncovered ‘important evidence.’ ” A review of the record indicates that counsel asked for, and ultimately received, a mental health expert witness who interviewed Lynd several times and prepared reports detailing his mental health issues, substance abuse problems, and background. Lynd's counsel also interviewed many lay witnesses to testify on Lynd's behalf at trial and sentencing on such topics as his relationship with the victim, his drug abuse, and his qualities as a person. Counsel also hired a private investigator and sent letters to schools, hospitals, the military, and other institutions with which Lynd had contact.
We find that the state habeas court applied Strickland in a manner consistent with federal law when it found that Lynd's trial counsel's conduct was not deficient. Further, the state habeas court's finding that counsel adequately investigated Lynd's background, mental health, and substance abuse is supported by evidence in the record. We therefore find this claim to be without merit.
C. Counsel's Failure to Investigate State's Case and Possible Defenses
Lynd's third argument is that his counsel was ineffective when he failed to investigate whether the victim could have regained consciousness after being shot twice in the head.FN6 Lynd argues that his counsel's failure to investigate such evidence prejudiced him because if the victim could not have regained consciousness after the second shot-and before he placed her into his trunk-he could not have been convicted of kidnapping.FN7
FN6. Lynd also argued that his counsel failed to adequately investigate the bad character evidence offered by the state. With respect to this issue, the record indicates that Lynd's trial counsel moved to have the evidence excluded. The trial court admitted the evidence over objection, and the admission was upheld by the Georgia Supreme Court. The state habeas court denied this claim on the merits, stating that the “Georgia Supreme Court ruled on the admissibility of the similar transactions and bad character evidence and found adversely to Petitioner. Petitioner has not made the requisite showing that trial counsel's performance was deficient.” We find no error in this regard.
FN7. On direct appeal, Lynd made the related argument that there was insufficient evidence to support the jury verdict that he murdered the victim while engaging in the commission of another capital felony, to wit, kidnapping with bodily injury. Because the victim could not have regained consciousness, he argues that he could not have been guilty of kidnapping her. The Georgia Supreme Court denied this claim, holding:Lynd argues he did not commit the offense of kidnapping with bodily injury because the victim was unconscious after the second shot. However, even if we were to accept the untenable assumption the victim could not have been taken “against her will,” see O.C.G.A. § 16-5-40(a) (defining kidnapping), if she were unconscious the entire time, see Taylor v. State, 194 Ga.App. 871(2), 392 S.E.2d 57 (1990), the evidence is persuasive that she regained consciousness and vigorously protested her confinement in the trunk of her car before Lynd shot her a third time and killed her. Lynd, 414 S.E.2d at 8. The state habeas court denied this claim on the merits, holding that Lynd's “attorneys asked for and received monies to hire an investigator, who subsequently performed an investigation and testified at trial .... Petitioner has not made the requisite showing that trial counsel's performance was deficient.” An independent review of the record reveals that Lynd's counsel adequately investigated the state's case and possible defenses, prepared and argued this defense in particular, and elicited favorable trial testimony on this issue from the state's expert witness. During cross examination, Lynd's counsel obtained the following concessions from the state expert witness: (1) although the victim could have regained consciousness, the majority of victims would not regain consciousness after receiving the second shot; (2) it was possible that the victim in this case did not regain consciousness; and (3) nothing in the autopsy report indicated that the victim regained consciousness. Lynd has not pointed to any other information that his counsel could have discovered through additional investigation of this defense.
Accordingly, we cannot hold that the state habeas court's denial of this claim was contrary to federal law or was based on an unreasonable factual determination.
D. Court-Appointed Counsel's Conflict of Interest
Lynd's final argument is that he was denied effective assistance of counsel because his court-appointed counsel had a conflict of interest resulting from his previous representation of the victim and her ex-husband in a bankruptcy proceeding. Lynd argues that, by appointing the attorney, the trial court compelled him to waive the conflict of interest in violation of the Sixth Amendment.FN8
The Sixth Amendment right to effective assistance of counsel encompasses the right to counsel untainted by conflicts of interest. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). This right is violated when the defendant's attorney has an actual conflict of interest that adversely affects the lawyer's performance. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993).
This issue likewise was addressed and rejected by the Georgia Supreme Court:
Lynd also argues that the attorney appointed by the court was laboring under a conflict of interest. Years previously, the appointed attorney had represented the victim's ex-husband in “a bankruptcy or something.” The attorney testified that he likely had represented the victim also, but he could not remember her. The victim's husband presently resides in Melbourne, Florida, according to the record, and did not testify in this case. The appointed attorney stated to the court that he was merely bringing the matter to the court's attention. Neither he nor the retained attorney suggested to the court how there was either an actual or serious potential for a conflict of interest. See Mitchell v. State, 261 Ga. 347, 405 S.E.2d 38 (1991).
Lynd, 414 S.E.2d at 10.
In denying this claim on the merits, the Georgia Supreme Court did not find the existence of an actual or even potential conflict. Lynd has presented no argument demonstrating that the Georgia Supreme Court unreasonably applied clearly established federal law nor any evidence to rebut the court's factual finding that no conflict existed. After reviewing the record, we find no misapplication of federal law and no evidentiary support for the existence of an actual conflict of interest. Accordingly, this Court cannot find that the Georgia Supreme Court erred when it denied this claim.
For all of the foregoing reasons, Lynd's petition is DENIED.