IN THE

STATEMENT OF JURISDICTION

Jurisdiction in this Court is proper under 28 U.S.C. §1291. This is an appeal from a final decision of the U.S. District Court for the Northern District of Georgia.

STATEMENT OF THE ISSUES

Whether trial counsel’s failure to investigate, develop, and present, relevant, and material evidence from experts and laypersons regarding Appellant’s mental state and disabilities denied effective assistance of counsel?

Whether introduction of unadjudicated crimes at sentencing without any standard of proof denied Mr. Housel a reliable capital sentencing determination?

Whether the trial court erred in failing to suppress statements that were the product of coercion and deception?

Whether, when all of the errors set forth above and in the petition below are considered cumulatively, Mr. Housel was denied his right to a fundamentally fair trial?

STATEMENT OF THE CASE

I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW

Appellant is incarcerated under a death sentence at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. On June 4, 1985, Appellant was indicted by a Gwinnett County Grand Jury for the offenses of murder, rape, automobile theft, and financial transaction card theft. 1-10-5-16-18.[1] On September 23-24, 1985, the trial court held a pre-trial hearing regarding the admissibility of two statements taken from Appellant, and ultimately ruled both admissible. R1-10-5-141,177.

After jury selection, Appellant pled guilty to malice murder and motor vehicle theft. The state dismissed the rape charge, but the court and the parties advised the jury that “they” would not determine guilt or innocence of that charge (erroneously implying the charge was still pending and some other jury would hear that case). Jurors were not advised that the rape charge had been dismissed. The three counts of financial transaction card theft had been previously dismissed.

During sentencing, the trial court, the prosecutor, and even defense counsel, discussed the rape charge in the presence of the jury. The prosecution introduced testimony – including the two statements – regarding the crime to which Appellant had pled guilty, and regarding three other un-convicted, uncharged offenses. After testimony and arguments by counsel, the jury found one statutory aggravating factor, O.C.G.A. § 17-10-30(b)(7), and sentenced Appellant to death on February 7, 1986. R1-10-14-2034,2049.

On direct appeal, the Georgia Supreme Court affirmed Appellant’s sentence of death. Housel v. State, 257Ga.115, 355S.E.2d 651 (Ga.1987). Reconsideration was denied June 3, 1987. Certiorari was denied on June 30, 1988. Housel v. Georgia, 487U.S.1240 (1988), and rehearing was denied August 25, 1988.

On December 15, 1988, volunteer counsel filed a Petition for Writ of Habeas Corpus in state court. After an evidentiary hearing on August 16, 1990, the state court entered an order denying relief on all claims on the merits on December 21, 1990. R1-10-25. The Georgia Supreme Court denied a Certificate of Probable Cause on March 1, 1991, and the United States Supreme Court denied certiorari on October 7, 1991.

On May 3, 1994, Appellant filed a federal habeas corpus petition, which was amended on February 1, 1995. After an evidentiary hearing on the issues of ineffective assistance and unlawful confession, the court denied the petition. This appeal followed.

II. STATEMENT OF FACTS

A. Trial

Appellant was arrested by Daytona Beach, Florida, police on April 14, 1985, for the murder of Jeanne Drew in Gwinnett County, Georgia. After his arrest, Appellant gave a statement to Daytona Beach police concerning the Gwinnett County murder, which was played to the jury at his trial. R1-10-12-1601. Appellant was transported from Florida to Gwinnett County and arrived on April 19, 1985.

On April 26, 1985, a commitment hearing was held in Gwinnett County magistrate’s court. Appellant was represented by Joseph McLaughlin at that hearing; that same day, the trial court appointed Walt Britt to represent Appellant, and McLaughlin was released. R1-10-5-9. Mr. Britt represented Appellant throughout the pre-trial, trial, and direct appeal proceedings.

On May 10, 1985, according to the pre-trial testimony of detective John Latty, Appellant provided a statement regarding a Texas homicide. R3-28-270. That statement was played for the jury at trial. R1-10-13-1753. Defense counsel’s counsel motion to suppress was denied on September 24-25, 1985.

The State introduced evidence of three unadjudicated, uncharged crimes. Witnesses from Iowa, New Jersey and Texas testified concerning alleged crimes occurring in the six weeks preceding the murder of Jeanne Drew. The trial court refused to instruct the jury on any standard of proof for considering this evidence.

The defense called three witnesses, his mother, the mother of his son, and a girlfriend. R-1-10-13-1789-1828. These witnesses presented general information about Appellant’s background, testifying he was a good son, father and stepfather. Appellant also testified, focusing on the charged offense and unadjudicated crimes. Importantly here, Appellant testified he was under the influence during both homicides. The jury ultimately delivered a verdict of death. R1-10-14-2037.

B. Habeas

Two competent and independent mental health experts, Dr. James Merikangas and Dr. Brad Fisher, evaluated Appellant during state habeas corpus proceedings. They concluded Appellant suffers from brain damage and severe psychological impairments. They also concluded he has a poly-substance abuse addiction and that Appellant’s debilitating mental diseases and defects were the reason for his drug and alcohol addiction problems. They concluded that this drug/ alcohol use, combined with brain impairment, “substantially impaired Appellant’s ability to intend the consequences of his acts, to understand and comport his actions with the requirements of the law, and to appreciate the criminality of his conduct.” R3-21-9. These experts also documented underlying psychological disorders that exacerbated Appellant’s mental difficulties. They agreed Appellant’s mental condition during each criminal episode may have eliminated his ability to intend his actions, and provided strong mitigating circumstances. These experts also testified that because of Appellant’s mental problems, his pre-trial statements were not the result of knowing, intelligent, and voluntary waivers of his constitutional rights, and the plea entered by Appellant was not a voluntary, knowing, and intelligent one. Drs. Merikangas and Fisher both concluded that there was a substantial question regarding Appellant’s sanity at the time of the offenses, and that Appellant’s mental condition, in combination with his intoxication, negated the ability to form specific intent. R3-219; R1-10-24-337-353. Dr. Merikangas also speculated that Appellant suffered from hypoglycemia, and felt that a glucose tolerance test was necessary. R1-10-24-348-349.

Dr. Buris Boshell, M.D., an expert in the field of endocrinology with a specialty in diabetes, evaluated Appellant during federal habeas proceedings and reviewed background materials relating to Appellant case. Dr. Boshell found that Appellant not only suffers from hypoglycemia, but that in particular he underwent a hypoglycemic episode on the night of the crime in Gwinnett County which undermined his mental capacity to distinguish between right and wrong at the time of this homicide. R3-22-9.

Dr. Boshell’s unrebutted findings, based on established medical and scientific testing, bear particular emphasis here. After administering standard medical tests, Dr. Boshell determined that Appellant is not only hypoglycemic now, but that he was hypoglycemic at the time of the crime in April of 1985. R3-22--6-7. Based on undisputed information about Appellant’s behavior and actions prior to the homicide, which confirm his drinking, drug abuse, and erratic behavior, Dr. Boshell also concluded that the combination of excessive alcohol consumption and lack of food produced a state of alcohol induced hypoglycemia on the night of the offense. R3-22-8. Based on the facts of the crime as reported by the Georgia Supreme Court and in Appellant’s statements, Dr. Boshell concluded that Appellant underwent “an acute state of hypoglycemia, exacerbated by alcohol, at the time of the crime” R3-22-8-9.

Critically here, Dr. Boshell found:

when in the throes of a hypoglycemic episode, as [Mr. Housel] was at the time of this crime, Mr. Housel did not have the mental capacity to distinguish between right and wrong.... In Mr. Housel’s case, these conditions combined to cause the inability to recognize the wrongfulness of his conduct at the time of his crime and the inability to control his behavior.... It is my professional belief that Mr. Housel was unable to specifically intend his actions....

R3-22-9-10.

Dr. Boshell’s testimony in this regard, as well as that of Drs. Merikangas and Fisher, was unrebutted by Appellee. There exists no conflicting expert testimony in this case regarding Appellant’s medical/mental health conditions and mental state at the time of the offense.

Habeas courts also admitted testimony from twenty lay witnesses who described Appellant’s impoverished and abused childhood and behavior before the crime. These witnesses included family, neighbors, family friends and teachers who knew Appellant and his family in Rhode Island where he spent his childhood, in North Carolina where he lived as a small child, and in Iowa where he lived shortly before this crime. The picture painted by these witnesses is in marked contrast to that presented by trial counsel.

Tracy Housel’s mother, Lula, was fourteen years old when she married Tracy’s father, Bill, who was forty three. Lula came from an impoverished background in North Carolina and had a family with a long history of health problems, including diabetes and low blood sugar. Lula herself suffered from severe arthritis and low blood sugar. Lula and Bill moved to Bermuda shortly after they were married. Tracy was born within a year of the marriage and he was a month premature and weighed only 3.5 pounds. He remained in an incubator after Lula’s discharge from the hospital. Tracy was sickly from birth and suffered such bad health that the family moved to North Carolina. R1-10-24-316,326.

As a youngster, Tracy suffered constant headaches and fevers. At the age of six he sustained a fever of 105 degrees for which he did not receive any medical treatment – his father did not “believe in” medical doctors. He was small for his age and accident prone. At age seven he fell off the roof and knocked unconscious. Again, no medical treatment was provided, even though his pupils remained dilated for several days. He was also knocked unconscious when another child accidentally hit him in the head with a baseball bat. Another time, he fell off the arm of the couch and broke his collarbone. At the age of eleven, he sustained head injuries from an auto accident. Id.; R3-22.

While Tracy was still young, he and his parents and three brothers moved to a neighborhood known as Columbia Heights in Rhode Island. Columbia Heights was a poor neighborhood in a former mill town. The mill had moved out, and when Tracy was a child, the neighborhood was nothing more than a “white ghetto.” The Housel family was among the poorest in the area. Children as young as ten were often seen out on their own late at night with no parental supervision. Tracy was no exception. Drugs and alcohol were prevalent among children and adults. R4-36-3,4,5,6,7,8; P. Exh. 26.

Lula was a well-known alcoholic throughout Tracy’s childhood. A co-worker described how she drank straight alcohol from a thermos and get drunk at work. Lula would often show up at the Legion Hall drunk, and would frequently be asked to leave, or carried out. Bill Housel, also an alcoholic, was violent toward Lula. They argued with each other at the Legion Hall, often elevating into fist fights. Lula had a reputation for promiscuity, also causing may arguments with her husband. R4-36-3,4,5,6,7,8,10,11; P. Exh. 26.

As a teenager, Tracy tried to break up these fights, which would often backfire, with both parents turning on him. After one such incident, when he was about 14, he went to the home of his mother’s co-worker. When the co-worker called his mother, Lula responded, “If you’ve got him, you can f**king keep him, come get his s**t.” Tracy did stay, for about three months, and during this time was well-behaved, responsible and helped the co-worker with her infant daughter by babysitting and readying her daughter for bed. R4-36-10.

Tracy’s father Bill had a reputation for unpredictable violence. He frequently hit his children in the head and face with his hands, and often beat them with a belt. Tracy and his brothers often came to school with black eyes, broken noses and bruises. One neighbor recounted a time when another young neighborhood boy hit one of the Housel children; Bill chased the child, caught him, and beat him. R10-24-326; R4-36-4,6,7,8,9; P. Exh. 25-26.

Despite such horrendous home circumstances, Tracy was obedient and well behaved at school. Teachers were well aware of his poverty. They describe him as a troubled child, but not a troublemaker. His sixth grade math teacher said he was an over-achiever for his social situation and was impressed by Tracy’s efforts. R4-36-1,2,11.

These teachers also testified, however, that Tracy was in need of special help and attention because of his troubled home life. Katherine Caroselli, who was both a teacher and a trained social worker, testified that although never disrespectful, Tracy just “wasn’t there” in school. Irene Hutton testified how Tracy was unfocused and unable to concentrate on his schoolwork. She said that although he was quiet and never said much in class, “his sad eyes spoke a lot.” Id.

Iowa witnesses who knew Tracy immediately prior to these crimes also provided testimony at the habeas hearing.[2] When Tracy arrived in Iowa in late 1984 he was drinking and taking drugs. In marked contrast to his persona while sober, when intoxicated he became incoherent. He suffered blackouts and later have no memory of his actions. P.Exh. 28-30.

When he began dating Robin Banks his drinking stopped and his behavior changed. During this period, he is described as a kind and easy going person, a pleasure to be around. Robin was a widow, and he helped her around her home with repair jobs, cooking and laundry. He cared for her three children, taking them to play ball or fish. He spent large amounts of time with the children, individually and as a group, and treated them as a father would treat his own children. Id.

Ms. Banks testified that Tracy had a sad side too. At times he would sit in one place staring into space for hours. Tracy did do some drugs while with Ms. Banks, and she confirmed that he was a completely different person at these times, acting strangely, sometimes snapping at Ms. Banks for no reason, other times on the verge of tears for no reason. When sober and eating three square meals a day, he was fine; if he got off schedule eating, these erratic behaviors would return. See P. Exh. 29.

This information confirms Dr. Boshell’s medical findings. As Dr. Boshell testified, Appellant’s hypoglycemia makes him more susceptible to complications resulting from the consumption of alcohol. When a hypoglycemic person drinks alcohol or fails to eat a stable, regular diet, he is more at risk of a hypoglycemic episode. A person in the throes of a hypoglycemic episode loses inhibitions and judgment and the ability to make rational decisions. R3-22. This is consistent with the testimony of these witnesses, who noticed a marked contrast between Tracy’s sober personality and that while on drugs/alcohol.

These witnesses attested to their willingness to have come forward at trial in 1985 to testify on Appellant’s behalf had they been asked – an astonishing number of people from throughout his life. Except for Ms. Banks, however, none were even contacted prior to trial.

III. STANDARD OF REVIEW

Each issue raised in this appeal requires de novo review by this Court. Findings of fact by the district court are reviewed under a clearly erroneous standard. Cunningham v. Zant, 928 F. 2d 1006, 1011 (11^th Cir. 1991). Mixed questions of law and fact are reviewed de novo, Jacobs v. Singletary, 952 F. 2d 1282, 1288 (11^th Cir. 1992), as are questions of law. Davis v. Heyd, 479 F.2d 446, 449 (5^th Cir. 1973).

SUMMARY OF ARGUMENT

Trial counsel’s failure to investigate, develop, and present, relevant, and material evidence from experts and laypersons regarding Appellant’s mental state and disabilities denied him the effective assistance of counsel. The introduction of unadjudicated crimes at sentencing without any standard of proof denied Mr. Housel a reliable capital sentencing determination. The trial court erred in failing to suppress statements that were the product of coercion and deception. Finally, when all of the errors set forth above and in the petition below are considered cumulatively, Mr. Housel was denied his right to a fundamentally fair trial.

It is axiomatic that an attorney’s failure adequately to investigate and advise a criminal defendant about a specific-intent or insanity defense, when that is the only plausible defense, amounts to ineffective assistance of counsel. See Wood v. Zahradnick, 430 F. Supp. 107 (E.D. Va. 1977). When a defendant has the right to an expert, Ake v. Oklahoma, 470 U.S. 68 (1985), and the right to make a decision based upon that expert’s opinions, Wood, and defense counsel unreasonably fails to seek the assistance of such an expert, the defendant’s rights are violated. This Circuit has reiterated this principle repeatedly. Blake v. Kemp, 758 F.2d 523, 531 (11^th Cir. 1985) (“[T]he courts have ‘long recognized a particularly critical relationship between expert psychiatric assistance and minimally effective assistance of counsel.’”) (citations omitted); Elledge v. Dugger, 823 F.2d. 1439, 1444-45 (11^th Cir. 1987) (“[C]ounsel’s failure at least . . . to seek out an expert witness was outside the range of competent assistance.”); Middleton v. Dugger, 849 F.2d 491, 495 (11^th Cir. 1989) (“This kind of psychiatric evidence, it has been held, has the potential to totally change the evidentiary picture . . .”).

In this case, prejudice should be presumed. Where counsel failed altogether to act on such a critical issue by failing to investigate and develop the defendant’s only viable set of defenses at the guilt-innocence phase of trial, and then in that information vacuum, advised his client to plead guilty to capital murder, reversal should be automatic. The failure of counsel to develop the only defense at guilt/innocence is the equivalent of the actual denial of an attorney, and does not fulfill the Sixth Amendment guarantee to counsel. See U.S. v. Kauffman, 109 F. 3d 186 (3^rd Cir. 1997)(Defense counsel’s failure to investigate mental health defense and allow his client to plead guilty despite red flags denied client of meaningful representation); Evitts v. Lucy, 469 U.S. 387, 396 (1985); Penson v. Ohio, 488 U.S. 75, 88 (1988); Holloway v. Arkansas, 435 U.S. 475, 490 (1978); McGill v. Dugger, 824 F.2d 879, 886 at n.11, n. 14 (11^th Cir. 1987) (“As the commentary following ABA Standards for Criminal Justice 4-4.1 states: ‘The lawyer’s duty to investigate is not discharged by the accused’s admission of guilt to the lawyer or by the accused’s stated desire to enter a guilty plea.’”)(emphasis added); Lombard v. Lynaugh, 868 F.2d 1475, 1484 (5^th Cir. 1989); Martin v. Rose, 744 F.2d 1245, 1250-51 (6^th Cir. 1984) citing and quoting, U.S. v. Cronic, 466 U.S. 648, 659 n.25 (1984).

Moreover, this is not a case where Appellant has failed to demonstrate that evidence existed which would have changed the guilty plea decision. See Thompson v. Wainwright, 787 F.2d 1447 (11^th Cir. 1986) (ineffectiveness rejected with regard to entry of guilty plea, because no prejudice where “Thompson has not identified anything [the attorney] could have done that would have changed the outcome of the plea proceeding”). Not only has Appellant presented evidence which, if utilized by a reasonable attorney would have changed the outcome of the plea proceeding; his trial attorney has admitted this evidence would have done so.

D. Penalty Phase

Trial counsel’s failures also impacted the penalty trial. Proper investigation coupled with expert assistance would have allowed counsel to present a wealth of mitigating evidence regarding Appellant’s background, including evidence that he was severely abused as a child, that he grew up in extremely difficult conditions, and that he suffered from genetic, environmental, neurological, and psychological dysfunctions that seriously limited his culpability, and which pre-disposed him to substance abuse. Experts could have presented and interpreted actual test data showing Appellant’s medical, psychological and neurological impairments, thus “translat[ing] a medical diagnosis into language that [would] assist the trier of fact, and therefore offer[ing] evidence in a form that has meaning for the task at hand.” Ake, 470 U.S. at 80.

Because trial counsel did not adequately investigate and/or obtain the services of independent experts, Appellant’s sentencing jury did not know that, through no fault of his own, he had little chance of developing normally, and his medical/mental health problems strongly impacted his behavior. The jury was precluded from considering a wealth of information that would have explained the seemingly inexplicable, in a way that would militate in favor of a life sentence.

E. Trial Counsel’s Failures Were Not The Result of Tactics Or Strategy

Trial counsel made no request for the assistance of an independent psychiatric expert. He did request, and his client received, an evaluation for competency to stand trial by a non-independent state examiner. R1-10-5-121;[7] however, no mental health evaluation, independent or otherwise, was ever conducted on the issues of intent, ability to understand and waive constitutional rights, or mitigating circumstances.

This is so despite the fact that Britt was aware of sufficient information that should have triggered a request for expert assistance. For example, Britt was aware that his client had been evaluated for psychiatric and psychological illnesses by court order in California eight months before the offense involved here, and even discussed this report with Appellant. R13-206,214. This prior evaluation, standing alone, should have caused Britt to seek experts. The report found that Appellant had a “severe problem with alcohol,” “psychological difficulties,” and that his bad childhood and other factors made him “highly prone to the use of drugs/alcohol.” See R1-10-24-193. Evaluators noted future potential criminal conduct would be directly tied to Appellant’s alcohol/drug use. Id.

Britt was independently aware of his client’s drug/alcohol problem, and that he had been using at the time of the offense. R13-209,213,215,313. He was aware his client would frequently rage while on drugs or alcohol, and of family history of alcoholism. R13-216, R13-217,313.

Britt was aware that Appellant’s drug/alcohol use would contribute significantly to the State’s evidentiary presentation. The trial record is replete with evidence demonstrating that Appellant constantly used drugs/alcohol, and that his crimes revolved around such abuse.[8] Britt’s trial strategy was to “blunt the impact” of this evidence. R13-269. Yet, the massive amount of such evidence made it impossible to do so by Britt’s strategy of “staying away from it” and “the less said...”. R13-269. Finally, Britt knew his client had suffered head injuries, but did not realize the significance these would have for his client’s medical/mental health condition. R13-209;R1-10-24-193;R13-280,282.

At the evidentiary hearing below, Britt admitted that his failure to seek experts was not a result of an affirmative strategy: rather, he just failed to give it serious consideration. R13-225,272. He did not discuss it with his client. Id. He did not file a motion with the trial court. R13-271. Britt testified that he had no independent strategic reason for failing to seek expert assistance. R13-272. Indeed, he testified that the expert evidence offered by Appellant in habeas proceedings would have been consistent with his trial strategy in this case, R13-275,279-81, and that had he developed it, he would have used it at both phases. R13-275,279.

Britt’s failure to present non-expert testimony regarding Appellant’s background was also admittedly not the result of any strategic decision. He knew his client was from Rhode Island; he knew he had friends in Iowa; and, his sentencing strategy was to “humanize” his client through presentation of evidence to explain Appellant’s crimes and drug/alcohol problems. Britt’s failure even to investigate and interview these witnesses was not the result of a tactical decision not to do so; indeed, it would have been fully consistent with such strategy to have done so. Instead, by his own admission, he just did not do his job. R13-256-57, 307-08.

F. The Ruling By The District Court

In denying relief on this claim, respectfully, the district court ignored the record and misapplied federal law. The court relied upon Bolender v. Singletary, 16 F. 3d 1547, 1558 (11^th Cir. 1994) and Rogers v. Zant, 13 F. 3d 384, 387 (11^th Cir. 1994 ) for the proposition that it could not fault counsel’s decision not to perform a complete investigation when it is supported by reasonable professional judgment. Yet, Britt testified he made no strategic judgment not to seek experts or develop more background evidence, and he would have presented this evidence and not pled his client if he had obtained it. No “professional judgment” was involved here.

Additionally, Bolender and Rogers are easily distinguishable. Counsel in Bolender actually interviewed the mother and sister and made a strategic decision not to have them testify. Counsel there wanted the jury to begin their deliberations immediately, feeling that he had sufficient testimony for penalty phase; he also believed their testimony was more aggravating than mitigating, and knew the judge was unsympathetic to character evidence. 16 F.3d at 1558. By contrast, Britt never spoke with any of the witnesses from Rhode Island, Iowa or Georgia (except for Banks), and admitted that their testimony was fully consistent with what he had hoped to present to the jury. In Rogers, counsel made a tactical decision not to investigate or pursue evidence of drug use because it was counter to the defense strategy. Rogers, 13 F.3d at 387. Britt testified that although he did not wish to rely solely on drug/alcohol evidence standing alone, he would have used evidence of the sort developed in habeas where it was coupled with other explanatory mitigating facts.[9] Also, Britt did confirm his affidavit was an accurate statement of his position on these issues. R13-263-264. While he did not feel that Appellant’s drug/alcohol abuse, “standing alone,” was helpful, he did believe it should have been explained and/or softened in precisely the manner developed by habeas counsel. R4-44-3-6.

The court found that Britt had no reason to believe a psychological defense was viable, R7-76-23; this view, however, ignores evidence of which Britt was aware indicating the need for experts. Evidence that Appellant may have had a personality disorder, a history of head injuries, and substance abuse correlated with outbursts, presents classic “red flags” which other courts have identified as indicating the need for further investigation. The court’s finding to the contrary, R7-76-26, is unsupported by the record and existing case law.

The court’s holding that there was no “readily obtainable, unquestionably helpful evidence” that could have been presented, id., is equally unsupported. Appellant presented considerable helpful evidence useable at both trial phases; Appellee presented no rebuttal evidence. Each witness testified they would have come to trial if called. Britt testified this evidence was consistent with trial strategy and he would have presented it had he developed it himself. R13-274-74,279-80,287. This evidence would have vastly altered the complexion of both phases of trial.

The district court’s finding that Britt did investigate Appellant’s mental state by obtaining a state competency exam, R7-76-24, is equally unavailing. Such an exam was limited and failed to address Appellant’s sanity at the time of the offense and/or mitigating factors or any other mental health problems that might have been relevant at both phases. Also, this finding contrasts with Britt’s testimony that he believed Appellant’s medical/mental health condition needed investigating and he had no strategic reason for failing to seek expert assistance. R13-271-72,274-75,279-80. Despite the court’s holding, Britt fully understood that a competency evaluation was not the sort of independent investigation needed here.[10]

G. Existing Case Law Mandates A New Trial And Sentencing

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to competent counsel, a right fundamental to our criminal justice system. Strickland v. Washington, 466 U.S. 688 (1984). To that end, the Supreme Court has repeatedly emphasized the “fundamental” role of counsel in ensuring that a criminal defendant receives a fair trial. See, e.g., U.S. v. Cronic, 466 U.S. 648 (1984); Argersinger v. Hamlin, 407 U.S. 24, 31 (1972); Gideon v. Wainwright, 372 U.S. 335, 343-44 (1963). In this case, trial counsel’s advocacy fell far short of the effectiveness guaranteed under the Sixth Amendment.

In a criminal case, one of counsel’s highest duty is to investigate and prepare. Where, as here, counsel unreasonably failed to investigate and prepare his case in such fundamental respects, the defendant is denied a fair, adversarial testing process and the results of the proceedings are unreliable. The law in this Circuit, and elsewhere, confirms this view.

“In a capital case the attorney’s duty to investigate all possible lines of defense is strictly observed.” Coleman v. Brown, 802 F.2d 1227 (11^th Cir. 1986). See also Kimmelman v. Morrison, 477 U.S. 365, 384-88 (1986) (failure to request discovery based on mistaken belief state obliged to hand over evidence); Henderson v. Sargent, 926 F.2d 706 (8^th Cir. 1991)(failure to conduct pretrial investigation deficient); Chambers v. Armontrout, 907 F.2d 825, (8^th Cir. 1990)(en banc)(failure to interview potential self-defense witness ineffective); Nixon v. Newsome, 888 F.2d 112 (11^th Cir. 1989)(failure to obtain transcript of witness’ testimony at co-defendant’s trial ineffective assistance); Code v. Montgomery, 799 F.2d 1481, 1483 (11^th Cir. 1986) (failure to interview potential alibi witnesses); Macias v. Collins, 979 F.2d 1067 (5^th Cir. 1992) (failure to mitigate impact of drug use evidence through available information ineffective).

Numerous courts have held counsel ineffective where, as here, they have failed in their duty to investigate available defenses and mitigating information in capital cases. See e.g., Agan v. Singletary, 9 F.3d 900 (11^th Cir. 1993) (ineffectiveness found where defendant pled guilty to capital murder and received death sentence, and lawyer made no independent inquiry into psychiatric background, which would have revealed mental health history and then-current use of psychotropic medication); Cave v. Singletary, 971 F.2d 1513 (11^th Cir. 1992) (counsel’s failure to prepare for penalty phase and specifically to offer family member character witnesses or evidence of petitioner’s lack of criminal record ineffective and prejudicial); Cunningham v. Zant, 928 F.2d 1006 (11^th Cir. 1991) (failure to present evidence of mental retardation and head injury ineffective at sentencing); Horton v. Zant, 941 F.2d 1449 (11^th Cir. 1991) (no tactical decision where made without investigation; counsel may not decide that presentation of mitigating evidence would be inappropriate in any capital case).

Britt failed in this duty. He did not consider or even attempt to obtain expert medical or mental health assistance, nor attempt to investigate or interview witnesses from Appellant’s childhood who could have provided critical information relevant to both phases of trial. R13-225-26,257.

Britt had no tactical motives. The law is clear that no such motive can be ascribed to an attorney whose omissions are based on ignorance of law, Harrison v. Jones, 880 F.2d 1279 (11^th Cir. 1989), or of the facts due to a failure to investigate. See Kimmelman, Chambers, Nixon, supra.

Here, Britt admitted the lack of any strategic justification for his failure to obtain expert assistance or to investigate more fully his client’s background and childhood. R13-272. Although courts normally should not question informed strategic and tactical choices made by counsel, the law is also clear that “when counsel’s choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel.” U.S. v. DeCoster, 487 F.2d 1197, 1201 (D.C.Cir. 1973).

In the instant case, defense counsel did not investigate mental health issues, did not advise Appellant, or the jury, that Appellant’s mental condition during the offense and the unadjudicated offenses could prevent the State from proving “intent,” and mis-informed Appellant and the jury regarding the legal significance of Appellant’s mental state. None of these acts or failures to act were based on any strategic considerations. In such a situation, Appellant has established that his attorney was ineffective under the Sixth Amendment.

That the outcome would have been different, and therefore the requisite prejudice established, is highly probable at the guilt-innocence phase of trial, and almost certain at the sentencing phase. First, the evidence Appellant presented to the district court, primarily in the form of three expert reports, which Britt admitted he would have presented at the guilt-innocence phase of trial, is strong, clear, and unrebutted proof of Appellant’s compromised mental state at the time of the offenses. Surely there is a reasonable probability that the jury would have convicted him on the lesser-included offense of voluntary manslaughter on the Gwinnett County homicide.

Second, the probable outcome of the sentencing phase is even more certain. Courts have given special attention to capital cases where, as here, in the face of such substantial available evidence, scant evidence is presented in support of a life sentence. See, e.g., Harris v. Dugger, 874 F.2d 756 (11^th Cir. 1989); Kubat v. Thieret, 867 F.2d 351 (7^th Cir. 1989); Osborn v, Shillinger, 861 F.2d 612 (10^th Cir. 1988); Hyman v. Aiken, 824 F.2d 1405 (4^th Cir. 1987); Magill v. Dugger, 824 F.2d 879 (11^th Cir. 1987); Johnson v. Kemp, 781 F.2d 1482 (11^th Cir. 1986); Thomas v. Zant, 796 F.2d 1322 (11^th Cir. 1986); King v. Strickland, 748 F.2d 1462 (11^th Cir. 1984); Tyler v. Kemp, 755 F.2d 741 (11^th Cir. 1985); Blake v. Kemp, 758 F.2d 523 (11^th Cir. 1985); Douglas v. Wainwright, supra.; Middleton v. Dugger, 849 F.2d 491 (11^th Cir. 1988) (failure to conduct investigation into petitioner’s background, to uncover mitigating, psychiatric, IQ, and childhood information, and to present that information at penalty phase of death penalty case ineffective); Stephens v. Kemp, 846 F.2d 642 (11^th Cir. 1988) (counsel ineffective for failing to investigate, present, and argue to jury at sentencing evidence of defendant’s mental history and condition).[11]

Here the need to present mitigating evidence was particularly important: the fact that Appellant committed a crime was largely not in dispute, especially in light of his pre-trial statement to Daytona police; at issue was the explanation for his conduct, and his moral culpability for the act. These issues turn on scrutinizing Appellant’s character and background. Had that the jury been given sufficient information, such as that provided in habeas, Appellant would not have been sentenced to death.

This Circuit’s jurisprudence in capital sentencing phase ineffectiveness cases under Strickland vividly demonstrates why Appellant’s claim should prevail. In King v. Strickland, 748 F.2d 1462 (11^th Cir. 1984), this Court held trial counsel ineffective under the Strickland standard for failing to present mitigating evidence at the sentencing phase of the defendant’s capital trial and for making a poor closing argument at sentencing. In that case, trial counsel did present one mitigating witness who testified that King was a good worker and nonviolent, but the Court nevertheless held counsel ineffective under Strickland. Id. In reaching that result, this Court focused on the fact that mitigating witnesses were available and should have been called to testify more about King’s good work record and his nonviolent nature. Id. at 1463.

In Thomas v. Zant, 796 F.2d 1322 (11^th Cir. 1986), this Court held that because trial counsel had failed to present mitigating evidence about his client’s impoverished and troubled childhood and his good work record, he was ineffective under Strickland. The Court in Thomas noted that trial counsel had done little to prepare for the sentencing phase of the trial, and held that, had he prepared adequately, he would have had more mitigating evidence to present. Id. at 1325.

In Tyler v. Kemp, 755 F.2d 741 (11^th Cir. 1985), this Court granted relief on ineffectiveness grounds for failure to present mitigating testimony at sentencing. There the Court was satisfied with evidence of Tyler’s good work record, her poor family circumstances and relationship to her husband, and her lack of violent prior offenses, to conclude that the failure to present such evidence at trial undermined confidence in the outcome of the verdict. Id. at 745.

In Blake v. Kemp, 758 F.2d 523 (11^th Cir. 1985), this Court reversed both conviction and death sentence. On sentencing, trial counsel presented no mitigating evidence despite its availability. In concluding that prejudice existed, the Court relied on evidence presented at the habeas corpus proceeding that Blake was a respectful person who got along well with and helped others. Id. at 533-34. Moreover, the Court granted relief despite the fact that each of the mitigating witnesses would also have testified that Blake had been arrested for a stabbing assault on his pregnant wife. Id. Acknowledging that this aggravating component to the mitigating evidence “might very well ... have persuaded a jury to impose the death sentence,” the Court nevertheless granted relief because the favorable evidence “demonstrated to the jury that the petitioner was not the totally reprehensible person they apparently determined him to be.” Id. at 535.

In Magill v. Dugger, 824 F.2d 879 (11^th Cir. 1987), this Court granted sentencing phase relief due to trial counsel’s failure to present or argue evidence of Magill’s youth, emotional problems, and his lack of involvement in prior violent offenses, all of which could have been presented had counsel done a reasonably effective job of preparation. Id. at 890.

In Stephens v. Kemp, 846 F.2d 642 (11^th Cir. 1988), this Court held that “trial counsel’s failure to investigate, present and argue to the jury at sentencing any evidence of [the defendant’s] mental history and condition constituted error” under Strickland. In reaching the result, the Court noted that counsel was aware that Stephens suffered from mental problems, but did nothing other than rely on the testimony of Stephens’ mother at sentencing to present such evidence to the jury. Id. at 652-54. The Court concluded that counsel should have done more, and that had more evidence about his mental condition been presented, the jury might well have voted differently. Id.

In Middleton v. Dugger, 849 F.2d 491 (11^th Cir. 1988), this Court reversed a death sentence due to counsel’s failure to present mitigating evidence of the defendant’s mental problems and poor background. Such evidence included the fact that Middleton was raised in a poor environment, neglected as a child, reared in foster homes, and suffered the traumatic death of his mother at age ten. Id. at 495.

Most of the information relied on in all of these favorable capital sentencing phase decisions applies a fortiori in the present context. Case after case has prevailed in this Circuit where, as here, trial counsel failed to present the testimony of family, friends and experts who could have given the jury strong, sympathetic reasons to vote for a life sentence.

Moreover, here trial counsel admitted that he had no tactical reason for his failure to consult with experts and present their testimony, or his failure to investigate his client’s background and present that evidence to the jury at sentencing. This is precisely why the defendant prevailed in Johnson, supra., where this Court held that trial counsel’s failure to present more mitigating evidence than he did, where more was available, constituted ineffective assistance. In so holding, the Court relied heavily upon the fact that trial counsel had no valid strategic reason not to present available mitigating testimony. The Court noted that the mitigating witnesses were aware of Johnson’s drug problem, but since that fact had already been presented during the guilt phase of trial, there was no good reason not to present their testimony. Id. at 360. This point is highly pertinent here, where evidence of Appellant’s drug/alcohol problems was introduced throughout the State’s case in chief. Distinguishing Strickland’s reliance on strategic justifications, and numerous other cases where similar strategic considerations, or the reluctance of mitigating witnesses to testify, or the non-cooperation of the defendant, justified a failure to present mitigating evidence, the court in Johnson held that where no such explanation existed, then ineffectiveness was clear if some mitigating evidence existed that should have been presented. Id. at 360, (citing Mitchell v. Kemp, 762 F.2d 886, 890 (11^th Cir. 1985).

II. UNADJUDICATED OFFENSE EVIDENCE

A. The Trial Court Erroneously Admitted Unadjudicated Offense Evidence[12] And Refused Defense Request For Burden Of Proof Instruction.

During Appellant’s penalty phase trial the State relied heavily upon evidence of unadjudicated offenses in support of a death sentence. R3-28-225-26; R1-10-11-1304,1398-1475; R1-10-12-1644-71; R1-10-13-1753-70;1980-86. The trial court refused to instruct the jury that, in order to consider such evidence, the State was required to prove the underlying facts beyond a reasonable doubt, or to any other lesser standard of proof. See R1-10-5-260 (defense request to charge); R1-10-12-1696-98; R1-10-13-1920-22,1931-32; R1-10-14-2008-2028. As a result, Appellant’s sentencing trial failed to meet even basic standards of reliability, let alone the “heightened reliability” required of a capital sentencing trial. See e.g., Woodson v. North Carolina, 428 U.S. 280, 304‑05 (1976); Gardner v. Florida, 430 U.S. 349 (1977).

At trial the State introduced evidence of three major alleged prior offenses of Appellant – an alleged assault in Iowa, an alleged sexual assault in New Jersey, and alleged murder in Texas. On a variety of grounds, including sufficiency and reliability, the defense objected to the admission and use of such evidence throughout the sentencing trial. See e.g., R1-10-11-1401,1414-15; R1-10-12-1681,1683,1719,1734-48. The State’s position – endorsed by the trial court – was that it did not have to prove these alleged offenses before the jury was allowed to consider them in the life/death sentencing determination. R1-10-11-1415; R1-10-12-1697; see also Petitioner’s State Evidentiary Hearing Post Hearing Brief at 35 (reiterating view, contrary to Johnson v. Mississippi, 486 U.S. 578 (1988), that “Petitioner was not on trial for the offenses committed in Texas, Iowa and New Jersey and the sentencing phase is not conducted in order to allow a defendant to defend against guilt or against the evidence offered in aggravation.”). The issue was critical in this case. Jurors were instructed that, once a statutory aggravating circumstance was found, they could impose death for any reason at all – including based upon the evidence of uncharged, unproved crimes. R1-10-14-2023.

Notwithstanding the fact that the jury was not advised regarding the elements of or defenses to these alleged crimes, the State’s evidence was itself assailable. With respect to the alleged Texas murder, the primary evidence was Appellant’s statement, which was extracted under coercive and unreliable conditions. See Claim III, supra. In addition, the State failed to prove that a death had even occurred. In the Iowa case, the court was visibly concerned about the reliability of the State’s case, as the victim could not identify Appellant as the perpetrator, and the photo line-up was overly suggestive. R1-10-11-1400,1470; R1-10-12-1671;R1-10-13-1770-71 (trial court “awful dubious about the Iowa situation” with regard to State’s evidence of such). Nonetheless, the jury was allowed to consider the evidence in any way it wished, uninformed as to the elements of the underlying offenses charged, and completely unrestricted by any standard of proof.

The prosecutor argued extensively that these uncharged offenses demonstrated Appellant deserved to die. Referring to the other crimes evidence, the prosecutor called Appellant “a predator” and concluded by saying: “A predator gives no mercy, and deserves no mercy.” R1-10-13-1980-84,1986.

B. The Trial Court’s Failure to Give A Standard of Proof Instruction Violated Appellant’s Constitutional Rights

Because a death sentence is qualitatively different from a sentence of imprisonment, the Supreme Court has determined that any capital proceeding must comport with the highest standards of reliability. Woodson, Gardner. A capital case such as this, built as it was almost entirely upon evidence of uncharged, unadjudicated offenses, does not imbue the sentencing verdict with sufficient indicia of such reliability.

As Judge Kravitch has noted:

Assertions by the State at a capital sentencing hearing that the defendant committed crimes for which he has not been convicted are inherently suspect. ... On the other hand, the State has an important interest in presenting to the sentencing jury all relevant evidence regarding the defendant’s character. ... The American justice system typically balances these competing concerns by requiring the State to present evidence sufficient to satisfy an applicable standard of proof and the court to instruct the jury as to that standard. ... Just as it is necessary to instruct the jury as to the standard by which the State must prove the elements of the primary crime [i.e., by proof beyond a reasonable doubt] in order to guarantee a fundamentally fair guilt-innocence proceeding, so too the jury must be instructed as to the standard by which a State must prove unadjudicated criminal conduct to be used as a[n] ... aggravating circumstance in order to guarantee a fundamentally fair sentencing proceeding.

Devier v. Zant, 3 F.3d 1445, 1467 (11^th Cir. 1993) (Kravitch, J., concurring, joined by Clark, S.J.), cert. denied, 513 U.S. 1161 (1995). In Devier, the defendant had failed to request a standard of proof instruction on the unadjudicated offense evidence, and the per curiam decision denied relief based upon that fact. 3 F.3d at 1464-66; see also, id. at 1466 (two judge concurring opinion characterizing basis of majority holding). Thus while the per curiam opinion did not settle the merits issue presented here, a majority of the panel held that, had the merits been reached, the result would have been that sought by Appellant here: upon request (as here), “the trial judge in capital cases should instruct the sentencing jury as to the standard by which the State must prove the defendant committed the [unadjudicated] crime. Failure to provide such an instruction would impermissibly impinge on the defendants’ right to a reliable and fundamentally fair sentencing determination.” Id. at 1467. Appellant’s case is precisely the case outlined by the (majority) concurring opinion in Devier.

Other Courts across the country, in both state and federal jurisdictions, have agreed with the reasoning of Judge Kravitch’s majority concurrence in Devier. The Supreme Court itself has recognized the problem. On at least five occasions, two Justices have urged the Court to resolve this issue in a manner favorable to Appellant here. See Williams v. Lynaugh, 484 U.S. 935 (1987) (Marshall, J., joined by Brennan, J. dissenting from denial of certiorari); Devier v. Kemp, 484 U.S. 948 (1987); Sharp v. Texas, 488 U.S. 872 (1988); Miranda v. California, 486 U.S. 1038 (1988); Robertson v. California, 493 U.S. 879 (1989). More recently, at least four current Justices have opined that, in the right case presenting the issue free of procedural impediments, the relief sought here should be granted. See Gray v. Netherland, 518 U.S. 152 (1996) (majority opinion rejecting claim as Teague-barred; dissenting opinion recommending relief on merits).

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court acknowledged that a fact found during a sentencing trial could be a “tail which wags the dog of the substantive offense” where the punishment drastically increases upon finding of such fact. McMillian, 477 U.S. at 87-88; see also U.S. v. Watts, 519 U.S. 148, 156-57 (1991)(same). Although those cases did not present the situation here, two points are of relevance in support of Appellant’s position: first, in both, the sentencing evidence relied upon was subjected to some standard of proof, albeit one less than beyond a reasonable doubt. Here, no standard was required. Second, the Court noted in both cases that “in extreme circumstances, relevant conduct that would dramatically increase the sentence” may well require an even more exacting standard of proof. Id. In short, by implication, the trial court’s refusal to require any standard of proof here violated the principles set forth in these decisions.

Similarly, in U.S. v. Mergerson, 4 F.3d 337, 344-45 (5^th Cir. 1993) cert. denied, 510 U.S. 1198 (1994), a non-capital case, the Fifth Circuit “recognize[d] a growing number of cases decided by courts in other circuits in which a higher standard of proof has been suggested or required when a finding of a particular fact relevant to sentencing dramatically increases the sentencing options of the court to the disadvantage of the defendant.” Id. at 343. The Mergerson court also observed that “numerous lower courts have required that sentencing facts must be found beyond a reasonable doubt in the capital sentencing context.” Mergerson, 4 F.3d at 344-45; see also, e.g., People v. Heishman, 753 P.2d 629 (Cal.), cert. denied 488 U.S. 948 (1988) (requiring specific reasonable doubt instruction); State v. Taylor, 818 P.2d 1030 (Utah 1990), cert. denied 503 U.S. 966 (1992) (same); Stephen P. Smith, Note, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phase of Capital Trials, 63 Colum. L. Rev. 1249 (1993). As has been cogently put, the use of evidence of unadjudicated crimes becomes a ploy that “allows the state to secure a conviction on a strong murder case, then seek the death penalty by providing a weak case before a jury which is undeniably prejudiced. This opens the door to death penalty recommendations upon a level of proof lower than proof beyond a reasonable doubt.” State v. McCormick, 272 Ind. 272, 397 N.E.2d 276, 280 (1979).

Many state courts have held such evidence wholly inadmissible. For example, the Supreme Court of Pennsylvania has concluded:

In a capital case where a man’s life is at stake, it is imperative that the death penalty be imposed only on the most reliable evidence. Prior convictions of record, and constitutionally valid admissions and confessions of other crimes meet this standard of reliability; piecemeal testimony about other crimes for which [the capital defendant] has not yet been tried or convicted can never satisfy this standard.

Commonwealth v. Hoss, 445 Pa. 98, 118, 283 A.2d 58, 69 (1981). The majority of subsequent state court decisions to consider the issue have refused to allow the use of unadjudicated crimes in capital sentencing.[13] Cf. State v. Debler, 856 S.W.2d 641 (Mo. 1993) (en banc) (reversing death sentence where state relied upon un-charged offense evidence and failed to give notice to defense). Other state courts that have reached a contrary decision require that the unadjudicated crime be proven either “beyond a reasonable doubt” or by “clear and convincing evidence.”[14] In Appellant’s case, whether or not the use of unadjudicated offense evidence was a per se violation of statutory or constitutional rights, its use here without any burden of proof as to the underlying facts, violated the Eighth Amendment.[15]

The lower court’s harmless error finding on this issue ignores the explosive nature of the evidence, as well as the extent of it, and the degree to which the prosecution relied upon it during sentencing. The Supreme Court has long recognized that such evidence can cause an erosion of constitutional rights “of avalanche proportions, burying beneath it the integrity of the fact‑finding process.” Burgett v. Texas, 389 U.S. 109, 117-19 (1967) (Warren, C.J., concurring) (“[t]o expect that the jury could wipe this from its memory and decide the petitioner's guilt only on the basis of [valid] evidence ... is to place too much faith in a jury's ability to detach itself from reality.”); see also People v. Zachowitz, 172 N.E. 466 (1930) (Cardozo, C.J.). The prosecution here was well aware of the impact of such evidence on the jury, relying predominantly upon it in its argument for death. In such circumstances, “it is beyond belief”, Burgett, to describe the error as harmless.

III. ILLEGAL STATEMENTS

The centerpiece of the State’s evidence against Appellant was two custodial statements, one taken shortly after his arrest in Florida, the other after his return to Gwinnett County. The first involved the Gwinnett County case; the second involved a homicide in Texas, relied upon by the prosecution at sentencing, see Claim II, and was taken by Gwinnett detective John Latty on May 10, 1985. Appellant moved to suppress both statements, the trial court denied the motions, and the State introduced both at trial. R1-10-5-141,177;R1-10-12-1601-23;R1-10-13-1753-70.

Prior to trial Detective Latty led the defense to believe that he had obtained the May 10^th statement in response to an uninitiated telephone call from Appellant at the jail. R3-28-263. The facts that were adduced and presented to the lower court, however, demonstrate that in fact, detective Latty developed and implemented a scheme designed to manipulate Appellant into inculpating himself without his attorney finding out. In fact, Latty obtained advise and assistance from the FBI, who told him how to approach Appellant based on his personality type and its implication for various interrogation techniques, including even what time of day to interrogate him (at night). R14-405-07,431. Latty followed the FBI’s advice. Id.

As a part of the strategy, Latty initiated interrogations of Appellant about his other alleged criminal activities, despite the fact that Housel had not initiated any contact, and despite the fact that he had asserted his right to counsel, and was in fact represented by counsel. R14-407-08. Latty usually conducted these interrogations at night, seating him on a desk in the center of the room, because the FBI had told him this would be the best time and manner to do it. R14-407,410,432. Latty would lavish Appellant with gifts of food and cigarettes during these uninitiated interrogations. R14-412. Although Latty claimed Appellant had initiated some of these contacts, he admitted it was usually to ask for assistance with problems in the jail. But from detective Latty’s perspective, his strategic purpose was clear and specific: “to try to persuade him at some point to tell us about the other murders he had committed.” R14-431. All of these interrogations were conducted without defense counsel’s knowledge. R1-10-24-149-50;R14-305.[16]

These facts alone, which were not known to Appellant’s defense attorney, warrant a finding that the May 10^th statement was involuntarily given. Keeping a prisoner isolated, and secretly interrogating him or her at length using the same

interrogator over and over is, on its own, illegally coercive. See Ziang Sung Wan v. U.S., 206 U.S. 1 (1924); U.S. v. Hernandez, 574 F.2d 1362 (5^th Cir. 1978).

Other evidence, however, makes clear that Appellant’s contacts with law enforcement while housed at the Gwinnett County Jail can in no way be described as knowing or voluntary. For the first few months Appellant was incarcerated in the Gwinnett County jail, he was held in solitary confinement. R14-338. He was not allowed to shower, nor was he allowed out of his cell, during this entire period of time. R14-344; P. Exh. 13, 15. Not until August 7, 1985, when the trial court entered an order regarding such oppressive conditions, over three months after he was initially arrested, was Appellant allowed out of his cell to finally shower and exercise. R14-346.[17]

In addition, Gwinnett jail personnel used an electric “stun gun” on Appellant on several occasions. R14-351; P. Exh. 14, 15. This was witnessed by both jail guards and fellow inmates at the Gwinnett County jail. At least one time he was “zapped” while standing in a pool of water, exacerbating the pain. P. Exh. 14.

These conditions, by design and effect, eroded Appellant’s mental health and his ability to act of his own volition. All who observed Appellant while he was incarcerated at the Gwinnett County jail testified to his irrational and bizarre behavior throughout the time he was there: yelling and screaming irrationally, kicking and banging on the door and bars of his cell, going into trance-like states, being “spaced out”, being unable to hear or respond while his eyes were glassy or glazed over, crying, being unable to relax or go to sleep, being paranoid, being nervous and pacing back and forth, and talking incoherently. R14-343,366; P. Exh. 12, 13, 14, 15, 24. He acted like a “raving lunatic” much of the time. P. Exh. 15.

These conditions had the purpose and effect of overbearing the will of Tracy Housel. Given his obviously compromised mental state, a direct result of such harsh and brutal treatment at the jail, and given the fact that Latty himself repeatedly initiated interrogations of Appellant, the State cannot now be allowed to argue that a single, (allegedly) uninitiated contact which produced a statement, was indeed a voluntary initiation by Appellant. Law enforcement personnel mistreated him, and law enforcement personnel capitalized upon this mistreatment and the understandable effect it had on Appellant’s mental condition, all with the ultimate goal of obtaining an inculpatory statement. Latty admitted this fact: in response to Appellant’s complaints about the jail conditions, he used the special meals and cigarettes and other favors to ingratiate himself to Housel “so [he] could get information from [Housel]...” R14-432.

The fact that all of this information was kept hidden from the defense, and from the courts, undermines the reliability of any factual conclusion that Appellant voluntarily, freely, and knowingly “initiated” any of his contacts with Latty leading up to the May 10^th interrogation, or that he knowingly and voluntarily waived his Fifth or Sixth Amendment rights at that time. That is, any argument that Appellant’s contact with Latty on May 10^th was a “voluntary initiation” is wholly undermined by the fact that it was itself the product of coercive and oppressive jail conditions, as well as illicit, and in some instances unconstitutional, contacts and interrogations by law enforcement personnel, which were themselves a part of an overall plan and scheme to get Appellant to implicate himself in other crimes without the knowledge of his attorney. When viewed in light of this scheme and the manner in which it was carried out, it becomes clear that Appellant did not knowingly or voluntarily waive his Fifth or Sixth Amendment rights by supposedly “initiating” contact with law enforcement personnel on May 10, 1985.

Instead, this evidence demonstrates that Appellant was incapable of acting in a knowing and voluntary manner at the time the May 10^th statement was taken. As noted above, Mr. Latty’s testimony indicates that in fact he, not Housel, initiated the discussion earlier that day. R14-410.[18] Moreover, by previously initiating their own contacts with Appellant, the purpose of which was to get Housel talking about crimes and implicating himself in other homicides, Mr. Latty and his associates had already violated Appellant’s rights. Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988); Michigan v. Jackson, 475 U.S. 625 (1986); Oregon v. Bradshaw, 462 U.S. 1039 (1983); Edwards v. Arizona, 451 U.S. 477 (1981). As the Court made clear in Minnick, “Edwards is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.’ The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures.” 498 U.S. at 150 (citations omitted). The fact that these interrogations were all part of a secret plan to get Appellant to inculpate himself highlights the invidiousness of the scheme. The Court condemned just this type of a “secret interrogation process” in Minnick, id. at 154, and emphasized the importance of allowing counsel to be present to prevent the result that occurred here.

The lower court failed to consider appropriately the evidence of inhumane conditions and its effects on Appellant’s state of mind, which the government utilized to wring a confession from him. The lower court acknowledged the basic facts regarding both the treatment to which Appellant was subjected, and its deteriorating effect on Appellant’s mental condition. By noting that other inmates were treated similarly, however, the lower court held that the poor jail conditions were irrelevant to the voluntariness analysis. R7-76-56,n.26. That view is belied by the evidence, as the lower court so notes. See id., and at 55 (citing testimony that Housel was singled out for particularly poor treatment). Moreover, the evidence is clear that the police were aware of Housel’s mental state, and utilized it in their strategy. This fact is of critical importance to the issue presented here.

In Colorado v. Connelly, 479 U.S. 157, 165 (1986), the Court held that a defendant’s state of mind was relevant to an examination of voluntariness when it is shown that the police “exploited this weakness with coercive tactics.” This is precisely what happened here. Detective Latty relied upon the deplorable conditions in which Tracy Housel was forced to live (not a single shower for over three months) to wear him down, so that Housel would befriend him, become dependent upon him for breaks from the harsh treatment, and, ultimately, as Latty freely admitted, confess to him. The lower court’s failure to ascribe any weight to the evidence of Housel’s treatment at the jail, and its consequent effects on his mental state, fails to account for the holding in Connelly. As the Court noted in Connelly,“[t]hese tactics supported a finding that the confession was involuntary.”

IV. CUMULATIVE ERROR

Tracy Housel pled guilty to capital murder without ever knowing that he had a medically-based defense at guilt-innocence, which would surely have affected the outcome at both phases of trial. His trial attorney admits this fact, and has testified it was a mistake to plead him guilty, and it was a mistake not to have developed and presented this and other substantial mitigating evidence at sentencing. Even if this Court does not find a legal pigeonhole within the foregoing claims upon which to grant relief, these facts remain, and they cry out for relief. Whether or not the Court concludes that counsel’s errors prejudiced the outcome at either or both phases, it is beyond peradventure that Tracy Housel’s trial would have taken a much different cast had counsel conducted the defense that he admits should have been presented had he done his job investigating and developing his client’s background. When viewed from this perspective, it cannot be fairly said that Appellant was provided a fundamentally fair trial.

This case presents a particularly appropriate context for the application of a cumulative error analysis, as has been done in other Circuits. See e.g., Derden v. McNeel, 978 F.2d 1453, 1456-61 (5^th Cir. 1992)(en banc), cert. denied 508 U.S. 960 (1993); Walker v. Engle, 703 F.2d 959, 963-69 (6^th Cir.), cert denied 464 U.S. 951 (1983); Mak v. Blodgett, 970 F.2d 614, 622 (9^th Cir. 1992). Many of the errors are interconnected. Thus, the lower court’s finding that the unadjudicated offense claim was harmless based upon the nature of the evidence presupposes that Appellant’s statements were admissible. Similarly, the trial court’s failure to suppress the statements was due in part to counsel’s failure to have adequately developed the facts surrounding Appellant’s treatment and mental state in the jail. Under cumulative error analysis, issues that the Court views as close questions when contemplated individually, might well tip the balance in favor of granting Tracy Housel a new trial when viewed together. For this final reason, this Court should grant Appellant a new trial.

V. ADDITIONAL CLAIMS

Because of space limitations, Appellant has omitted from this brief arguments on the following claims from the Amended Petition; incompetent state psychiatric examination (Claim III); improper sentencing (Claim VI); improper sentencing by jury who heard plea (Claim VII); Witherspoon and Morgan (Claim VIII); change of venue (Claim IX); vague (b)(7) aggravator (Claim X); vague instructions (Claim XI); competency (Claim XII); inadequate proportionality review (Claim XIII); and cumulative error (Claim XIV). Appellant does not waive these claims and incorporates each herein by express reference to the briefs, evidence and arguments made below.

CONCLUSION

For the foregoing reasons, Appellant respectfully requests that this Court grant the writ of habeas corpus, and remand his case to the lower court with an order requiring that the writ be issued, and that he be released from unlawful custody unless he is retried within a reasonable period of time.

CERTIFICATE OF COMPLIANCE

I hereby certify that the applicable sections of the foregoing Appellant’s Opening Brief contain 13,545 words.

This 4^th day of October, 1999.

Respectfully submitted,

_________________________ __________________________

Robert L. McGlasson M. Elizabeth Wells

Georgia Bar No. 492638 Georgia Bar No. 747852

1024 Clairemont Ave. Federal Defender Program

Decatur, Georgia 30030 100 Peachtree Street, Suite 200

(404) 373-9334 Atlanta, Georgia 30303

(404) 688-7530

Attorneys for Appellant

TRACY LEE HOUSEL

[1] Record cites in this brief are as follows. Documents in the Appellate Record except R1-10: “R ___(volume no.) - ___(document no.) - ___(page no.).” R1-10 is a compilation of Respondent’s exhibits and will be referenced: “R1(volume no.) -10(document no.) - ___ (Respondent’s exhibit no.) - ___(page no.).” Petitioner’s Exhibits from Federal Evidentiary Hearing: "P. Exh. ___ (exhibit no.)." All other references will be self-explanatory.

[2] One of these witnesses, Robin Jackson Banks, also testified at Appellant’s trial. During habeas proceedings she explained she only spoke with Mr. Britt briefly before her testimony and was completely unprepared at trial. She was caught off guard by Britt’s questioning, and left out most of what she would have said had she been prepared. P.Exh.29.

[3] The lower court’s implication that Appellant’s ineffectiveness claim challenges only his sentence, R7-76-13, is incorrect. The record is clear that Appellant has pled throughout both state and federal court that trial counsel’s deficiencies impacted all phases of the case, from pre-trial through sentencing.

[4] See Ely v. State, 285 S.E.2d 66, 67 (Ga.App. 1981)(voluntary intoxication which prevents the formation of specific intent results in a verdict of not guilty); see also Blankenship v. State, 277 S.E.2d 505, 508 (Ga. 1981) (not guilty if “voluntary intoxication rose to a level required to negate intent”).

[5] The district court’s finding that this statement correctly notes Georgia law, R7-76-28, ignores Georgia law on specific intent and the relevance of intoxication to the formation of intent.

[6] The district court found Britt had no knowledge of Appellant’s hypoglycemia since he was diagnosed after trial. R7-76-22. Respectfully, this misses the point: had Britt conducted minimal investigations, he would have uncovered evidence that pointed to the need for expert assistance and interpretation; i.e., it was Britt’s fault that Appellant was not diagnosed until habeas counsel conducted the proper investigation. Dr. Boshell testified that Appellant suffered from hypoglycemia at the time of the offense in this case; had Britt consulted an expert, therefore, the evidence was readily available at trial. R3-22.

[7] Due to this Court’s denial of excess words, counsel was required to eliminate from the brief Appellant’s claim that the state competency expert was himself incompetent, and therefore violated Appellant’s constitutional rights. By doing so, however, Appellant does not waive this claim; rather, he incorporates by reference all briefing, pleadings, and evidence on this issue from the proceedings below.

[8] Police reports reveal that at the time of the offense, April 7, 1985, Appellant had been drinking for over four hours. At one truck stop, “all noticed the suspect because he was very vocal and created a disturbance a time or two, very conspicuous,” describing Appellant as “extremely strange” and “very weird.” R1-10-2; R1-10-12. At the time of arrest, Appellant had been drinking substantially. R1-10-2-144; R1-10-12-1519,1549,1568; R1-10-11-1306. Even the unadjudicated offenses involved drinking and drugs. R3-28-281-87;R1-10-13-1753-69; R1-10-13-1980;R1-10-12-1665;R1-10-13-1984.

[9] The court’s statement in footnote 11 that Britt believed it was tactically unwise to seek jury sympathy on drug/alcohol evidence ignores Britt’s testimony that he would have presented it coupled with the type of medical evidence uncovered by habeas counsel. R7-76-20. Further, it points to an error in federal habeas proceedings. Habeas counsel sought to introduce an affidavit from Britt concerning his representation of Appellant. The State objected to the admission of the affidavit, and the district court sustained the objection. R13-264-65. Respondent then presented Britt as their witness on direct; the court then refused to allow habeas counsel to cross-examine Britt with leading questions. R13-268,272,278,284,286,288,291. Then the court took over questioning altogether, and Britt’s responses are critically important here. Finally, the district court refused to allow undersigned counsel even to proffer the prohibited questions for the record. R13-292. Thus, Appellant was denied a full and fair hearing on this issue. Nevertheless, the record speaks for itself, and the district court’s interpretation of it is, respectfully, incomplete.

[10] Britt testified he would never use a state employee, such as the doctor who performed the competency examination, as a defense expert in a criminal case. R13-225.

[11] Indeed, the district court did not dispute the fact that the testimony of the expert witnesses might have been helpful to the sentencing jury. R7-76-20.

[12] Appellant recognizes that this Circuit has rejected the argument that evidence of unadjudicated conduct is inadmissible per se at the sentencing phase of a capital trial. See Devier v. Zant, 3 F.3d 1445 (11^th Cir. 1993). He nevertheless asserts the argument here to preserve the issue for review by the United States Supreme Court, where the issue is as yet undecided (see infra).

[13] State v. Bobo, 727 S.W.2d 945, 952‑53 (Tenn.), cert. denied, 484 U.S. 872 (1987); State v. Bartholomew, 683 P.2d 1079, 1082‑85 (Wash. 1984); Scott v. State, 465 A.2d 1126, 1135‑36 (Md. 1983); State v. McCormick, 397 N.E.2d 276, 279‑81 (Ind. 1979); Cook v. State, 369 So.2d 1251, 1257 (Ala. 1979); Prevence v. State, 377 So.2d 783, 786 (Fla. 1976).

[14] See State v. Brooks, 541 So.2d 801 (La. 1989) (clear and convincing evidence); People v. Balderas, 711 P.2d 480, 515‑16 (Cal. 1985) (beyond a reasonable doubt).

[15] A case mis-cited by other Courts on this issue is the Fifth Circuit’s decision in Milton v. Procunier, 744 F.2d 1091, 1097 (5^th Cir. 1984) cert. denied 471 U.S. 1030 (1985). See e.g., U.S. v. Hall, 152 F.3d 381 (5^th Cir. 1998), cert. denied 119 S.Ct. 1767 (1999). Milton held as a general matter that evidence of unadjudicated extraneous offenses was admissible in a Texas capital sentencing hearing. Milton also makes clear, however, that admissibility is dependent upon the very standard of proof requested here: “there remains a long-held reservation about the use of wrongdoing not then being tried. These concerns express our acceptance that a jury suffers the human weakness of blending wrongs – a result inconsistent with our fundamental commitment to charge specificity... these concerns are addressed by properly applied standards of relevance and sufficiency of proof.” 744 F.2d at 1097.

[16] Jail logs kept by Gwinnett County Sheriff’s Department confirm that detective Latty removed Appellant from his cell on numerous occasions before and after taking the May 10^th statement. R3-21-14. The jail’s Release/Borrow forms, which were used to keep track of when officers remove a prisoner from the jail, show that Mr. Latty “borrowed” Appellant on at least eleven different occasions between April and August, 1985, often at night. There could have been other occasions, as Mr. Latty was not required to sign in each time he removed Appellant from his cell, and Latty does not remember signing a form every time he removed Housel from the jail. R14-354;R14-394.

[17] Jail personnel did not comply with the order for very long; indeed, at least as late as December, 1985, the jail continued to keep Appellant in solitary confinement, and would not let him out of his cell for extended periods of time. P. Exh. 12.

[18] In fact, according to Mr. Latty’s testimony below, Appellant did not “initiate” even the May 10^th interrogation. See R14-410 (indicating Latty first asked Housel to talk about the Texas homicide, and then explained to him how to get around the Fifth and Sixth Amendment’s legal requirements).