Habeas corpus. Coffee Superior Court. Before Judge Blount, Senior Judge.
Zell & Zell, Rodney S. Zell, for appellant.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.
HUNSTEIN, Justice. All the Justices concur.
We granted Appellant Larry Compton's application for a certificate of probable cause to examine whether the habeas court erred in rejecting Compton's claim of ineffective assistance of trial counsel. Finding no error, we affirm.
Compton was convicted of murder and related offenses, and the trial court sentenced him to life imprisonment plus five consecutive years. This Court affirmed his convictions and sentences on appeal. Compton v. State, 281 Ga. 45 (635 S.E.2d 766) (2006). In 2007, Compton, proceeding pro se, filed a petition for habeas corpus, which he later amended in 2012 through counsel, arguing that he received ineffective assistance of counsel because (1) trial counsel did not object to the excusal of a juror who was voting to acquit Compton; and [295 Ga. 778] (2) trial counsel allowed the trial court to consult two different jurors outside his presence and the presence of his counsel. After an evidentiary hearing, at which Compton testified and also presented the affidavit of his trial counsel, the habeas court denied his petition. We subsequently granted Compton's application for a certificate of probable cause and directed the parties to address the following question:
Did the habeas court err in rejecting petitioner's claim that trial counsel was constitutionally ineffective for failing to object to the court excusing a juror based on a conversation that occurred outside the presence of petitioner or counsel where the record reflects that the juror was released due to her inability to reach a verdict either way?
The record reflects that on the third day of jury deliberations, Juror White and the trial judge, Gail Tusan, met in chambers without Compton or any counsel present. During this initial discussion, Juror White expressed to the judge that she was not able to continue with deliberations. This discussion was not recorded. Approximately 25 minutes later, the judge held another conference with Juror White in chambers, without Compton or any counsel present, and this time the discussion was transcribed in order to " create a record." The transcript from this subsequent discussion shows that Juror White expressed to the judge that she could not carry out her oath or duties as a juror and she could not " hang in there and finish [her] part of the process"
because she could not " do it anymore." Upon further questioning by the judge, Juror White explained that she could not " come to a decision" and she had been " having a hard time." Juror White stated, " I can't sit here today and tell them guilty on this charge or not guilty or just innocent. I can't." Based on this, the judge told Juror White that she would excuse her and call in an alternate juror.
Judge Tusan returned to the courtroom and informed the jury, as well as counsel and Compton, that based on her conversation with one of the jurors, she had excused the juror and seated an alternate. She told the jury that they needed to begin their deliberations anew and gave them further instructions. The judge did not read the transcript from the in-chambers discussion with Juror White in open court. Neither Compton's counsel nor the State objected to the in-chambers discussion or to Juror White's dismissal.
[295 Ga. 779] In denying Compton's habeas petition on his claim of ineffective assistance of counsel, the court found that Compton failed to show the requisite prejudice with regard to his counsel's failure to object to the in-chambers discussion and that the in-chambers discussion was merely limited to whether Juror White could follow the trial court's instructions. With regard to Compton's claim that counsel was ineffective for failing to object to the excusal of Juror White, the court found that counsel did not act unreasonably by failing to make a meritless objection ...