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Ford v. Tate

Supreme Court of Georgia

October 31, 2019

TATE; and vice versa.

          BENHAM, JUSTICE.

         In 2005, Nicholas Cody Tate pleaded guilty to the murders of Chrissie Williams and her three-year-old daughter, Katelyn Williams, and to numerous related crimes. He waived his right to a jury trial as to sentencing for the murders. At the conclusion of a sentencing bench trial, the trial court found the existence of several statutory aggravating circumstances and sentenced Tate to death for each of the murders. This Court unanimously affirmed Tate's convictions and death sentences. See Tate v. State, 287 Ga. 364 (695 S.E.2d 591) (2010). On January 31, 2012, the same day that his execution was scheduled to occur pursuant to an order signed by the trial court, Tate filed through counsel a petition for a writ of habeas corpus and a motion for a stay of execution. Tate's scheduled execution was stayed, and he amended his petition on May 16, 2013. The habeas court conducted an evidentiary hearing on June 9-10, 2014, and, in an order filed on December 27, 2018, the court denied relief with respect to Tate's convictions but granted relief with respect to his death sentences after finding that Tate received ineffective assistance of counsel at the sentencing trial.

         In case number S19A0825, the Warden appeals the habeas court's vacation of Tate's death sentences, contending that the habeas court committed reversible error in concluding that trial counsel were prejudicially deficient in investigating and presenting mitigating evidence at the sentencing trial and in denying the Warden the opportunity to call Tate as a witness at the habeas evidentiary hearing. In case number S19X0826, Tate cross-appeals, contending that the habeas court committed reversible error in denying several claims, including several instances of ineffective assistance of counsel, the violation of his constitutional right to a speedy trial, the State's pursuit of contradictory theories, and post- conviction counsel's conflict of interest. In the Warden's appeal, we reverse and reinstate Tate's death sentences. In Tate's cross-appeal, we affirm. [1]

         1. Factual Background

         The evidence presented at Tate's sentencing trial, including his videotaped custodial interview, showed the following. On the morning of December 11, 2001, 21-year-old Tate and two of his brothers, 18-year-old Dustin Tate and 15-year-old Chad Tate, loaded a number of weapons into Tate's truck and left their mother's home, where they resided. They drove to a local sporting goods store with a shopping list that included ammunition, duct tape, and extra-long zip ties. Tate went inside, accompanied by Dustin Tate, and purchased duct tape, a knife, and ammunition for various firearms, including a Winchester rifle, a nine-millimeter pistol, a .357 Magnum revolver, and an AR15 semi-automatic rifle. The three brothers then drove to the home of Barry Williams and his wife, Chrissie Williams, whose sister was married to Tate's oldest brother, Curtis Tate. Tate had previously purchased methamphetamine from Barry Williams, and he and his younger brothers planned to burglarize the home, to steal drugs and money from the home, and to use a stun gun to rape Chrissie Williams.

         Although Tate was aware that the Williams couple had temporarily lost custody of their children, he was not aware that Chrissie Williams had the children with her during the day pursuant to a reunification plan. Therefore, he expected Chrissie Williams to be home alone. However, when the three brothers arrived at the house, the Williamses's three-year-old daughter, Katelyn Williams, answered the door. Although the child recognized Tate and called him "Big Nick," her name for him, she was obviously frightened by the three males, who entered the home armed, and she began screaming and running throughout the house. Tate and Chad Tate cut the telephone lines to the home, and Dustin Tate found Chrissie Williams sleeping in a bedroom with her two-year-old son in a crib beside her. When he shocked her with a stun gun, she awoke screaming, and Dustin Tate forced her to move to the bedroom across the hallway, intending to rape her there. At some point, both Tate and Chad Tate assisted Dustin Tate either in taping Chrissie Williams's mouth and eyes with duct tape or in handcuffing her hands to the bed's headboard and taping her legs to its footboard.

         During an intense search for drugs and money, Tate rummaged through Chrissie Williams's purse, and he and Chad Tate ransacked the home, including turning furniture over, ripping the blinds off the windows, and removing heating vents. Tate attempted to silence Katelyn Williams's screams by taping her mouth with duct tape. After she continued to scream and run throughout the house, he placed her in the crib with her younger brother and told her to "shut up." When her brother started crying, Tate took her out of the crib, and she ran from him. Tate angrily ordered Chad Tate to "take her in the back bedroom" and quiet her. Chad Tate complied with Tate's order, and he strangled Katelyn Williams with a telephone cord, rendering her unconscious. When she revived and began crying again, Tate allowed Chad Tate to have his knife. Chad Tate slit Katelyn Williams's throat multiple times and then pushed her off the bed and onto the floor, where she eventually bled to death.

         When Tate and Dustin Tate saw what Chad Tate had done, Tate took Katelyn Williams's younger brother out of the crib and "let him go in the living room," and "Dustin w[ent] ape" and insisted that they had "to get out of [t]here." He was so distressed that Tate directed him to wait outside. Bound to the bed with her eyes and mouth taped, Chrissie Williams became "hysterical," and Tate pointed his Smith and Wesson nine-millimeter pistol at her face and threatened to beat her with it if she did not cease her attempts to scream. Then Tate placed a cushion over Williams's head and shoved his pistol into it, firing one shot into the side of Williams's head and killing her. Tate and Chad Tate locked the door behind them as they left the home, leaving Chrissie Williams's toddler son inside. The three brothers fled Georgia, kidnapped a woman and stole her vehicle in Mississippi, and finally surrendered to authorities in Oklahoma. At the sentencing trial, the children's aunt testified that Katelyn Williams was wearing footed zip-up pajamas when she dropped Katelyn off at the home early on the morning of the crimes. When the victims were discovered, Katelyn Williams's body was completely nude, and Tate admitted at his guilty plea hearing that he removed her pajamas for his sexual gratification.

         II. Claims of Ineffective Assistance of Counsel

         In Case No. S19A0825, the Warden appeals the habeas court's determination that trial counsel were ineffective in the investigation and presentation of mitigation evidence. In Case No. S19X0826, Tate appeals the habeas court's denial of his claims that trial counsel were ineffective regarding Tate's guilty plea, his interview by an acquaintance of the trial judge, his waiver of a jury trial as to sentencing for the murders, and the failure to present Chad Tate as a witness or to submit into evidence at the sentencing trial Chad Tate's custodial interview and the plea colloquies of Chad Tate and Dustin Tate.

         A. Applicable Law

         To prevail on his ineffective assistance of counsel claim, Tate must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 S.E.2d 362) (1985). In determining whether counsel's performance was deficient, the relevant inquiry is "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690 (III) (A). We must "indulge a strong presumption" that counsel's performance fell within "the wide range of reasonable professional assistance" and that counsel's decisions were made "in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 689 (III) (A).

         With respect to Strickland's second prong, a petitioner must affirmatively prove prejudice by "show[ing] that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Smith, 253 Ga. at 783 (1) (citing Strickland, 466 U.S. at 694 (III) (B)). To determine prejudice in the sentencing phase of a case challenging a death sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695 (III) (B).

         "In reviewing a habeas court's ruling on an ineffective assistance claim, we accept the habeas court's findings of fact unless clearly erroneous and independently apply the law to those facts." Sears v. Humphrey, 294 Ga. 117, 119 (II) (A) (751 S.E.2d 365) (2013) (citation and punctuation omitted). See Humphrey v. Morrow, 289 Ga. 864, 866 (II) (717 S.E.2d 168) (2011) (explaining that this Court adopts the habeas court's factual findings unless they are clearly erroneous but applies the facts to the law de novo in determining whether trial counsel performed deficiently and whether any deficiency was prejudicial).

         B. Pretrial and Trial Proceedings and Trial Counsel's Actions

         We begin by reviewing the pretrial and trial proceedings and the course of action that trial counsel in fact followed. See Franks v. State, 278 Ga. 246, 250 (2) (A) (599 S.E.2d 134) (2004) (noting that, in order to address an ineffective assistance of counsel claim involving several alleged errors and omissions, the court properly first reviews the actions that trial counsel took). See also Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir. 2000). Then we address the various claims involving ineffective assistance of counsel raised on appeal by both the Warden and Tate, first discussing the Warden's contention in the direct appeal that the habeas court erred in finding that trial counsel were ineffective in investigating and presenting mitigation evidence in Tate's sentencing trial and then, in turn, addressing the contentions raised in Tate's cross-appeal alleging that the habeas court erred in denying several ineffective assistance of counsel claims relating to the guilty plea and the sentencing trial.

         The relevant undisputed facts in the record and the factual findings of the habeas court that are supported by the record show the following. After Tate and his brothers surrendered to authorities in Oklahoma on December 14, 2001, Tate waived his rights under Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966), and was interviewed by a special agent from the Georgia Bureau of Investigation ("GBI") and a detective from the Paulding County Sheriff's Department before being returned to Georgia. In this interview, Tate admitted that he and his brothers went to the Williams home with the intent to steal drugs and rape Chrissie Williams, that Dustin Tate used a stun gun on Chrissie Williams, and that she was bound to the bed with handcuffs and duct tape. He denied knowing who removed Katelyn Williams's clothing. However, he stated that Chad Tate "took her in the bedroom and had his fun," explaining that he meant by that statement that Chad Tate sexually molested her, and he said that he and his brothers had been molested "very bad[ly]" as children by their older brother, Curtis Tate. He also stated that Chad Tate strangled Katelyn Williams with a telephone cord and then slit her throat. While he admitted that he shot Chrissie Williams through the head while she lay bound to the bed, he claimed that the gun misfired while he was pushing it into a cushion that he was holding over her head in an attempt to get her to be quiet. Tate and his brothers waived extradition and were returned to Paulding County approximately a week after their arrests.

         On February 20, 2002, Tate was indicted by a Paulding County grand jury on two counts of malice murder, eight counts of felony murder, five counts of aggravated assault, two counts of kidnapping, four counts of burglary, one count of conspiracy to commit armed robbery, two counts of cruelty to children in the first degree, two counts of possession of a firearm during the commission of a felony, two counts of false imprisonment, and one count of child molestation. Two days later, the trial court entered an order appointing Marc Cella to represent Tate.

         In October 2002, Cella began plea negotiations with the State in Tate's case. In mid-November 2002, both Dustin Tate and Chad Tate entered into plea agreements with the State in which they received life sentences with a set term of years before which they could not seek parole. According to Cella's billing records, in January 2003, Cella discussed the possible options for a plea with Tate and his mother, and he obtained a draft plea agreement from the district attorney that offered Tate a non-negotiated sentence with a cap of a sentence of life without parole for the murder counts.[2]On May 6, 2003, Cella met with Tate for three hours to discuss the State's offer with him. However, ten days later, Cella informed the district attorney that there would be no deal.

         Also in January 2003, the trial court entered a consent order directing Dr. Kevin Richards, a forensic psychologist at Northwest Georgia Regional Hospital ("Northwest Georgia"), to conduct an evaluation of Tate for the purpose of providing his opinion as to Tate's criminal responsibility and any mitigating factors regarding his mental status at the time of the crimes and also his opinion as to Tate's competence to stand trial. The order directed that Dr. Richards provide his written report only to the trial court and Cella. Dr. Richards opined that, at the time of the crimes, Tate was not delusional and recognized the difference between right and wrong and that he was competent to stand trial, but, as further discussed in our analysis below, his report contained a substantial amount of potentially mitigating information.

         On July 8, 2003, the State filed its notice of intent to seek the death penalty against Tate. The record shows that Cella was well-prepared to continue representing Tate. At that time, he had been practicing law for over 20 years, had for most of that time maintained a private practice that was largely devoted to criminal defense, and had tried approximately ten death penalty cases to verdict. The trial court designated Cella as lead counsel and appointed Bradley Reed as his co-counsel. Before recently opening his own private criminal defense practice, Reed had served as a Chatham County prosecutor for approximately six years, during which time he had tried several murder cases. Cella and Reed were qualified under the Unified Appeal Procedure to serve as lead and co-counsel respectively. See UAP II (A) (stating the minimum qualifications for any attorney appointed to serve as lead or co-counsel in a death penalty case). Cella explained that, because Tate's case was Reed's first death penalty case, he did not divide responsibility for the guilt/innocence phase and the sentencing phase between them, which was his usual practice; instead, the two attorneys "worked side by side." Trial counsel had a good working relationship and discussed strategy with each other and with Tate.

         The record supports the habeas court's finding that "trial counsel met with [Tate] numerous times," during which they "had discussions with [Tate] about the crime, the weight of the State's evidence against him, and how the guilty pleas of [Tate]'s brothers impacted his case." Trial counsel testified in the habeas proceedings that the evidence against Tate was overwhelming, that "[e]verybody pretty much knew what happened" as a result of both Tate's and Dustin Tate's "full, complete statement[s] in Oklahoma," and that the fact that both of Tate's co-defendant brothers had pleaded guilty hurt their client's case. Trial counsel also testified that Tate was "not too eager" about having a guilt/innocence phase and did not provide the names of any potential guilt/innocence phase witnesses. Nevertheless, trial counsel testified that they reviewed the voluminous discovery made available by the State, were prepared to try the case, and had formulated what they considered viable defenses, namely, to assert a defense of accident to the murder of Chrissie Williams, to challenge the sufficiency of the evidence regarding the child molestation count, and to argue that Tate did not actually kill Katelyn Williams, although counsel recognized that the State's "party to a crime" theory "br[ought] [Tate] back in."[3]

         After the State filed notice of its intent to seek the death penalty, trial counsel filed and litigated approximately 60 motions, including unsuccessful challenges to the grand and traverse jury array and a motion to exclude Tate's custodial statement that was also denied. In addition, counsel filed several ex parte motions, and, as a result, they retained an independent ballistics expert, Kelly Fite, and an investigator, Hal Johns.[4] Because Tate claimed to have shot Chrissie Williams when his gun misfired, counsel hired Fite, a former firearms examiner with the GBI Crime Lab, to verify the opinion of the State's expert that the murder weapon was working properly and to check the trigger pull. Following his review, Fite agreed with the State expert's conclusion that the murder weapon was in proper working order. Investigator Johns gathered records, served subpoenas, and did a limited amount of locating and interviewing witnesses.

         On March 30, 2004, trial counsel met with Tate again, this time to discuss presenting a plea offer from the defense to the State. After speaking with the district attorney, trial counsel prepared a proposed written plea agreement and met with Tate and his mother. However, on April 8, 2004, after discussing dropping the child molestation charge with the district attorney, trial counsel's billing records reflect that they spoke with Tate and his mother and noted "no plea." At the habeas evidentiary hearing, Reed recalled that Tate rejected a possible plea agreement for a non-negotiated sentence with a cap of life without parole because at that time Tate was adamant that he did not molest Katelyn Williams and, therefore, refused to plead guilty to child molestation, even if it meant avoiding a death sentence.[5]

         In fact, the record shows that Tate eventually became convinced that the death penalty was the only appropriate punishment for his crimes. Cella testified that, "[i]n the beginning [Tate] was a lot more cooperative and work[ed] with [trial counsel] toward a lighter sentence." He said that, as time passed, however, Tate began "manifesting" a much less cooperative attitude as a result of religious beliefs that he had developed while incarcerated awaiting trial. Cella explained as follows:

[Tate] was not illiterate, but he wasn't a real skilled reader when he was arrested. He spent four years in jail, getting ready for trial, and in that time the only reading material that was readily available to him was the Bible, and he started reading the Bible and became a fairly intense biblical scholar. And he got the notion in his mind that he was forgiven because he asked to be forgiven and that he was going to heaven when he died. And he told me that was why he didn't care about the sentencing phase and he wanted the death penalty.

Reed also described Tate's change in attitude as an "evolving process," stating the following:

The focus and the intensity of it seemed to gradually evolve. [Tate] didn't start out - the first time I met him he didn't want the death penalty. That's a situation that evolved over a four-year period, generally speaking.

         Cella testified that, as soon as he noticed what he perceived as Tate's growing desire for the death penalty, he "tried over the time period in question several different approaches to change what [he] saw as momentum going in that direction." Specifically, Cella encouraged Tate to consider "how his death in the Georgia death chamber might affect [his mother] and his brothers." He also tried to persuade Tate that his "mission" to obtain the death penalty was "akin to suicide" and that the afterlife might not be pleasant for someone who had committed multiple murders and suicide. According to Cella, however, nothing he said made any impact on Tate, and he continued "to get stronger in [his] desire [for the death penalty] over time."

         After the trial court issued an order scheduling the trial to begin on October 24, 2005, trial counsel arranged for Dr. Richards to conduct a second evaluation of Tate, this time to determine whether he was competent to enter a guilty plea. Cella testified that, although he "knew it was a long shot that [Tate] would be found incompetent because he believed that he was going to heaven," Tate's "unyielding attitude" and "[his beliefs] w[ere] interfering with his ability to work with [trial counsel] and assist [them] in defending [him]." In his September 25, 2005, report, Dr. Richards concluded that Tate was competent to enter a guilty plea, and he opined that Tate did "not currently suffer from any significant mental illness," noting that, while Tate had exhibited psychotic symptoms in the past, he "believ[ed that those] were primarily related to heavy drug use." He also found that Tate's religious beliefs did not constitute a "delusion" and that, based on those beliefs, Tate had made a reasonable decision on his course of action with regard to the charges against him.

         Jury selection began the last week of October 2005, but on November 15, 2005, after three weeks of voir dire, Tate pleaded guilty to eight of the twenty-nine charges against him, including the two counts of malice murder and the child molestation count. Before entering his plea, Tate told the trial court that, contrary to his custodial statement, he intentionally shot Chrissie Williams and that he was "the one that took the little girl's clothes off" and "took her into the room with the intent on [sic] looking at her to get sexually aroused." Cella informed the trial court that Tate had decided to waive his right to a jury trial and to request the trial court to conduct a bench trial as to sentencing for the two murders. Trial counsel had been unable to change Tate's attitude about his case, and, as Cella recountedin his habeas testimony, Tate "proceeded to tell the judge the fact that he deserved the death penalty, he wanted it, and he thought that's what he should get, based on [his religious beliefs]."

         The sentencing bench trial began on November 28, 2005. According to Cella, trial counsel's investigation and preparation of the mitigation case had started "at the very beginning," as the "point in controversy" in Tate's case was why the crime occurred, a question that trial counsel investigated "[e]xtensively" and "tried to understand." The sentencing trial transcript supports trial counsel's testimony that their mitigation strategy involved the following: refuting the State's assertion that Tate was the leader of the group and thereby showing that he should not be the only one to die for "this set of circumstances"; showing that, during their flight after the murders, Tate intervened and protected the Mississippi kidnapping and carjacking victim from his brothers, which may have prevented her rape and murder, and that he was the one who decided that the brothers would turn themselves and their "arsenal" of weapons over to authorities, a decision that likely avoided a "spectacular shootout"; pointing out that the death of the child had been caused by a person who was himself too young to get the death penalty; arguing that Tate, who at the time of the crimes "impressed as an uneducated, borderline illiterate person . . . weigh[ing] over 400 pounds," had become rehabilitated to the point that he was "a completely different person, both physically and mentally," by the time of trial, and that his story [wa]s . . . worth telling [and] instructive"; and reminding the trial court that Tate was extremely remorseful and had taken responsibility for his crimes.

         Trial counsel testified that they also wanted to present evidence of Tate's "horrible family background," which included his repeated molestation as a child by his older brother Curtis, physical abuse, a lack of parenting and education, and drug abuse. In the habeas proceedings, trial counsel could recall little specific information about what they did regarding investigating and preparing for the sentencing trial, and their files contain relatively few notes regarding this area. However, the record shows that trial counsel filed affidavits of service with the court averring that the following were personally served with a subpoena to appear at trial: Oswald Tate, Tate's father; Debora Tate, Tate's mother; Tim Hollingshead, Curtis Tate's probation officer; Drew Lane, Curtis Tate's attorney in his molestation case; Major Sammy Goble, the lead investigator in Tate's case and the jail administrator at the time of Tate's sentencing trial; and Dr. Richards. In addition, trial counsel filed affidavits of service averring that the defense served a subpoena duces tecum for trial on the custodian of records at Northwest Georgia and at East Paulding Middle School to produce Tate's medical records and school records, respectively. Trial counsel also filed affidavits of service averring that the defense served Dustin Tate and Chad Tate, each an "incarcerated prisoner," with a subpoena for Tate's trial "by personally serving [the jail administrator] with said subpoena." Although both Dustin Tate and Chad Tate had been moved to state facilities to serve their sentences, they were produced for the sentencing trial pursuant to the trial court's order of production. Reed recalled that he attempted to interview both Dustin Tate and Chad Tate in "anticipat[ion of calling] them to testify." However, only Chad Tate agreed to speak with him.[6] According to trial counsel, they were concerned that, "in his remorse and guilt, [Tate] might speak out to the Court and attempt to take more responsibility for the crimes than his brothers." Therefore, they hoped to present Dustin Tate and Chad Tate to testify that their roles in the crimes were consistent with their plea colloquies and custodial statements, specifically, that Chad Tate had killed Katelyn Williams of his own volition and that Tate had shot Chrissie Williams accidentally. Trial counsel also testified that they wanted to present evidence regarding Tate's background, particularly the molestation by his brother Curtis and its effect on him, through the testimony of lay witnesses. As further discussed in our analysis below, the record also shows that trial counsel intended to present Dr. Richards to testify regarding how Tate's drug use and his relationship with Dustin Tate affected his mental state at the time of the crimes.

         At trial, the State presented 22 witnesses over four days, emphasizing its theory that Tate had been the group's leader. In support of this theory, the State attempted to submit a videotape obtained from Tate's bedroom pursuant to a search with a warrant. The State contended that, in addition to its relevance to show the non-statutory aggravating circumstance of Tate's use of drugs, the videotape was relevant to show that "Tate [wa]s in charge" on the morning of the crimes, as it depicted the three brothers interacting with each other in a manner that demonstrated that Tate was the leader among them. However, trial counsel's motion to exclude the videotape was successful, and it was not admitted.

          Trial counsel were also able to elicit some mitigating testimony from several of the State's witnesses. On cross-examination, Angie Rowzee, the Mississippi kidnapping victim, testified that Tate "was never mean to [her]," never made any sexual advances to her, and told her that he wanted to let her go back to her "perfect life." To support their argument that Tate was not "the leader of the gang and everybody just did what he said," counsel also obtained Rowzee's reaffirmation of her direct testimony that Tate told her that he had to talk to his brothers before releasing her. Rowzee also testified on cross-examination that she believed that Chad Tate and Dustin Tate planned to kill her because they talked about tying her up and not wanting to leave witnesses but that Tate talked them out of their plans to harm her.

         Trial counsel also elicited testimony that Tate was fully cooperative with the agent from the Federal Bureau of Investigation ("FBI") who negotiated the brothers' surrender to law enforcement authorities, that he was "the one who volunteered [that] all the weapons were located" in an Oklahoma hotel room where the brothers had left them, and that he had told the agent that he did not "want anything to do with guns after what happened back there," referring to the murders. During trial counsel's cross-examination of Major Goble, he testified that, in his present capacity as the jail administrator, he got along well with Tate and had not had "any problems at all" with him and that Tate had "asked [him] about some [religious] literature from time to time." Trial counsel also admitted Tate's videotaped custodial interview. After the videotape was played, counsel elicited testimony from Major Goble regarding numerous consistencies between Tate's statements in his custodial interview and the evidence that had been presented at the sentencing trial and also between Tate's statements and statements by Chad Tate in his custodial interview, particularly Chad Tate's statements regarding how he had taken Tate's knife to slit Katelyn Williams's throat.

         However, after the State rested its case, trial counsel presented only two witnesses in mitigation. A chaplain at the Paulding County jail testified that he and Tate had met every Sunday for one hour throughout Tate's incarceration and that he had observed a "remarkable change" in Tate's grammar skills, was impressed with Tate's interest in improving his vocabulary, spelling, and religious knowledge, and was "inspir[ed]" by "the things that [Tate had] done as a young man to grow in some wisdom." Tate's father testified that he "didn't feel like that one [of his children wa]s any more guilty than the other two," and he asked the trial court to give Tate a sentence like his other sons had received, life with the possibility of parole.

         During closing argument, trial counsel stated that they disagreed with Tate's belief that the death penalty was the appropriate punishment, repeated Tate's description to the trial court during the plea hearing "that he was responding to what he called an order from Dustin" and that he would do anything "that pleased [Dustin]," reminded the court of Tate's involvement with drugs and his statement to the trial court at the guilty plea hearing that he did not want to use drugs as an excuse, stated that Tate was remorseful and had accepted responsibility, and pointed out that Tate had no criminal history. Trial counsel also argued the unplanned nature of the crimes, Tate's surprise on finding the children at the home, the kidnapping victim's testimony indicating that Tate protected her from his brothers, Tate's peaceful surrender to and cooperation with the authorities, and the fact that Tate's genuine rehabilitation could be useful in that "others in society c[ould] learn and benefit from his story." Counsel argued that Tate had taken responsibility for his role in the crimes and that the punishment should be "in proportion to the individual's role," that there was no evidence that Tate murdered Katelyn Williams, that all three co-defendant brothers said that Chad Tate killed her but that he was not eligible for the death penalty because of his age, and that both of Tate's co-defendant brothers had accepted negotiated pleas in exchange for life sentences. Counsel asked for mercy and compassion and argued that a life sentence was appropriate. Trial counsel submitted correspondence to Tate from his mother and Dustin Tate and Curtis Tate's certified conviction for the molestation of Tate but did not refer to these exhibits in any way. On December 19, 2005, the trial court reconvened to announce its sentence and sentenced Tate to death for each of the murders.

         C. Ineffective Assistance of Counsel Claim Regarding Tate's Sentencing Trial

         The habeas court concluded that Tate's trial counsel rendered ineffective assistance at his sentencing trial in that they failed to investigate and present mitigating evidence in several areas. The Warden contends that the habeas court erred as a matter of law in applying the principles of Strickland and its progeny to Tate's case, because the habeas court's analysis ignored its own factual findings, ignored testimony in both the trial and habeas proceedings that Tate did not want mitigation evidence to be presented, and ignored well-established law regarding those circumstances where a defendant interferes with trial counsel's efforts to present mitigating evidence.

         The Warden is correct that there is a conflict between the habeas court's factual findings and its legal analysis. In particular, in its order, the habeas court made the following findings of fact: "The record shows that following trial counsel's attempts to negotiate a plea, [Tate] expressed a desire to plead guilty, did not want trial counsel to present mitigation evidence, and wanted to receive the death penalty." (Emphasis supplied.). Despite those factual findings, the habeas court applied Strickland and concluded that trial counsel were ineffective in investigating and presenting mitigating evidence, without also considering the United States Supreme Court's decision in Schriro v. Landrigan or related cases involving a defendant who was opposed to the presentation of mitigation evidence at trial. See Schriro v. Landrigan, 550 U.S. 465, 478 (III) (B) (1) (127 S.Ct. 1933, 167 L.Ed.2d 836) (2007) (holding that a defendant who "interferes with counsel's efforts to present mitigating evidence to a sentencing court" cannot show prejudice under Strickland for counsel's failure to conduct an adequate investigation or to present such evidence); Allen v. Secretary, Florida Dept. of Corrections, 611 F.3d 740, 762 (IV) (11th Cir. 2010) (explaining that "[t]he United States Supreme Court has told us in no uncertain terms that if a competent defendant did instruct his counsel not to offer any mitigating evidence, 'counsel's failure to investigate further could not have been prejudicial under Strickland'" (quoting Landrigan, 550 U.S. at 475 (III) (A)).

         As an initial matter, we reject Tate's contention, first made at oral argument and then more fully developed in a letter brief, that the foregoing factual findings about Tate's not wanting counsel to present mitigating evidence but, instead, wanting a death sentence are clearly erroneous because the citation to the record that immediately follows them does not support them. It is well-settled that "[a] habeas court's factual findings cannot be found to be clearly erroneous if there is evidence in the record to support such findings." Smith v. Magnuson, 297 Ga. 210, 212 (1) (773 S.E.2d 205) (2015). See, e.g., Upton v. Johnson, 282 Ga. 600, 602 (652 S.E.2d 516) (2007). For the reasons discussed below, we conclude that the factual findings at issue are supported by the record.

         1. Tate's Expressed Intentions Regarding the Presentation of Mitigation Evidence and His Desire for the Death Penalty

         The habeas court's factual findings that Tate did not want trial counsel to present mitigation evidence and that he wanted to receive the death penalty are pivotal here. That is so because, in order for Landrigan to be applicable to Tate's case, the record must establish that the defendant clearly and unequivocally expressed an intention not to present any mitigating evidence or to limit the mitigation evidence. See Landrigan, 550 U.S. at 478 (III) (B) (1) (distinguishing Landrigan's case in which the record established that he informed his counsel not to present any mitigating evidence from cases where "the defendant refused to assist in the development of a mitigation case but did not inform the court that he did not want mitigating evidence presented"). See also, e.g., Morton v. Secretary, Florida Dept. of Corrections, 684 F.3d 1157, 1172-1173 (III) (B) (11th Cir. 2012) (applying Landrigan where the defendant limited the type of mitigating evidence that trial counsel could present). Our review of the record convinces us that it clearly supports the habeas court's findings.

         To begin with, in regard to mitigation evidence, Reed testified in the habeas proceedings that, "[b]asically[, Tate] did not want to really put anything up." During the evidentiary hearing, the habeas court questioned Reed about "[his] comment about [Tate] not wanting to call mitigation witnesses" by asking Reed:

So, what type of response did you or co-counsel have to a client that was simply telling the judge to put him to death? Because if you don't have any mitigation, what are we doing here?

         Reed stated that he and Cella "were exasperated because [they] felt like that [they] had a very strong mitigating case." However, "[t]he problem was that [Tate] took the position that he had committed a crime worthy of death, according to . . . the Bible." Reed explained that trial counsel had conversations with Tate during which they discussed his religious views and tried to persuade him differently but that Tate's beliefs dominated his thoughts about presenting mitigating evidence and, in turn, "overtook [counsel's] efforts to mitigate." At that point, the following colloquy between the habeas court and Reed took place:

COURT: None of [the mitigating evidence that trial counsel wanted to present] could come out?
WITNESS: Right. Because of the religious -
COURT: And I presume that based on client confidence, you couldn't even express that to the [trial c]ourt, either? You're sort of stuck, right?
WITNESS: Our hands were tied, basically.[7]

         Cella affirmed that Tate did not want counsel to even investigate mitigation evidence, and he testified that "[Tate] wanted to just go straight to death row." He explained that Tate did not want to have a trial but, instead, wanted to plead guilty to the death penalty, stressing that Tate "didn't want [trial counsel] to even try to save his life." In explaining why Tate "tolerated" what little mitigation evidence that trial counsel did present, Cella stated: "I told [Tate] I had to do it and that was what I was appointed for and if I didn't do it we were going to end up having to do this all over again."[8] At the habeas evidentiary hearing, Cella testified that, "[a]t the end," Tate "[w]ouldn't" work with him "[b]ecause he wanted the death penalty" and "wanted [Cella] to negotiate the death sentence."

         Trial counsel's testimony is supported by Tate's own statements in the trial proceedings. After informing the trial court at his November 15, 2005 guilty plea hearing that he intentionally killed Chrissie Williams, Tate stated: "I do realize that I have done wrong, and I believe that the punishment should fit the crime, life for life." The trial court subsequently asked Tate about that statement and whether he "[h]ad become an eye for an eye, tooth for a tooth person." Tate explained that, before his incarceration, he could not read or write very well but that, within the last four years, his skills in those areas had improved and that he "ha[d] read the Bible several times." As a result, he "believe[d] that if you committed a crime worthy of death that [you] refuse not to die." Then he stated:

That's how I am. I'm refusing not to die. I'm given [sic] the opportunity that I have taken from the family. I've taken two lives from the family - I have taken one life and I have been a party to taking another. And I believe that they should have the same opportunity.

         The trial court stated that it had "a pretty good guess what [sentence Tate was] looking for based upon a few statements [that he had] made." The trial court then discussed with Tate his decision to waive a jury trial as to sentencing and expressed concern that Tate's choice to have an individual rather than twelve persons make the sentencing determination might be the result of his belief that "the twelve wo[uld]n't make the decision that [he] want[ed]." Tate assured the trial court that he considered the court fair and capable and that he was comfortable with the possibility of receiving any of the three possible sentencing options, explaining, "What I believe I should get is one thing, and what I get is another." The trial court responded by opining that it should have stated that perhaps Tate was concerned that a jury would not recommend the sentence that he thought he should receive and not, as the court stated, the sentence that he "want[ed]." However, Tate disagreed, stating: "No. Let's stick with want. We'll stick with want." Then he reiterated, "Yes, sir. We'll stick with want." Thus, Tate clearly stated that, although he recognized that the decision as to what sentence he received was for the trial court and that he would accept that decision, he wanted what he felt was the appropriate sentence for his crimes, which was the death penalty.

          In closing argument at the sentencing trial on December 2, 2005, trial counsel told the trial court that Tate "believe[d] the death penalty [wa]s the appropriate punishment in this case." At his sentencing 17 days later, Tate confirmed that the trial court had just sentenced him to death and then asked if a direct appeal in his case was "automatic." When the trial court answered in the affirmative, Tate indicated that he wished to be appointed counsel for purposes of the "automatic" appeal but stated that, if it were not "automatic," he would not want to appeal.

         Finally, at a June 30, 2009 status conference on Tate's motion for new trial, Tate stated that he did "not wish to proceed with a motion for new trial at all [and] ha[d] let this be known back when [the trial court] sentenced [him] to death." Tate told the trial court that he did not "wish to die," as it was against human nature to want to die.[9] However, Tate explained that, as he had told the court from the beginning, he "fully and willingly submit[ed] to any sentence that [the trial court] g[a]ve [him]" and that the death sentences that the trial court had imposed were the appropriate punishment for his "horrible, heinous, malicious, and . . . planned out act[s]." Tate also told the trial court the following:

I wanted to file, to just plead guilty to what I've done, to allow the sentence to be carried out.
And Mr. Cella, he has completely refused any and all things that I've asked to do. I wanted to forego - I wanted to just leave out any mitigating evidence at all. I had no problem with that. And I have only recently come across the actual law cases, you know, with my limited reading skills and limited knowledge in the law. I did not know that it was right that I could just forego all of this.

         (Emphasis supplied.). Reed corroborated Tate's assertion that he told trial counsel at trial to leave out all mitigating evidence, both at the time that Tate made the assertion at the status hearing on the motion for new trial and twice in the habeas proceedings.[10]

         Accordingly, in light of the evidence in the trial and habeas records, we conclude that the habeas court's factual findings that, "following trial counsel's attempts to negotiate a plea, [Tate] expressed a desire to plead guilty, did not want trial counsel to present mitigation evidence, and wanted to receive the death penalty" are not clearly erroneous. See Johnson, 282 Ga. at 602 ("When there is evidence to support the habeas court's factual findings, those findings cannot be found to be clearly erroneous."). Accordingly, this Court must accept them.

         Nevertheless, Tate argues that trial counsel's testimony shows that he was only opposed to trial counsel's presenting evidence regarding his molestation as a child by his older brother, Curtis Tate, and putting his mother on the stand as a witness and that he was "ambivalent" about the presentation of any other mitigation evidence and cooperated with trial counsel.[11] To support this argument, Tate relies in several instances on trial counsel's testimony describing Tate's attitude early in his case before he had a change of attitude or on counsel's testimony before their memories were refreshed as to what actually occurred in the trial proceedings. As to trial counsel's descriptions of Tate as "cooperative," Reed explained that, when he described Tate as "cooperative," he meant that Tate was "pleasant"; however, Tate's religious views still affected "the way that [trial counsel] presented evidence in the penalty phase and [Tate] not letting [counsel] - not wanting [counsel] to do certain things." Cella testified that he would not describe Tate as ever being uncooperative, because, "even though [they] had disagreements, [they] were always able to discuss them in a civil tone." Cella then testified that the "only" disagreements that he and Tate had concerned Tate's wanting the death penalty. Even if portions of trial counsel's testimony appear somewhat at odds with other testimony and evidence, it was for the habeas court to resolve any conflicts. See Waye v. State, 239 Ga. 871, 876 (2) (238 S.E.2d 923) (1977) ("It is the job of the trial court to resolve any conflicts in the evidence when serving as a trier of fact."). As our review of the evidence above shows, the record amply supports the habeas court's factual findings.

         Tate also argues that Landrigan and related cases are inapplicable, because, unlike the defendant in Landrigan, he never stated on the record at trial that he had instructed trial counsel not to present mitigation evidence and because he allowed trial counsel to present some mitigation evidence and to argue for a sentence other than death. See Landrigan, 550 U.S. at 476 (III) (A) (noting that Landrigan "informed his counsel not to present any mitigating evidence" in the plea colloquy before the trial judge and that he "interrupted repeatedly when counsel tried to proffer anything that could have been considered mitigating"). Thus, Tate argues that he was merely "fatalistic" and that his case was one of "passive non-cooperation." See id. at 478 (III) (B) (2) (distinguishing Landrigan from the defendant in Rompilla v. Beard,545 U.S. 374, 381 (II) (A) (125 S.Ct. 2456, 162 L.Ed.2d 360) (2005), who "refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented"). However, at the guilty plea hearing, Tate clearly explained the rationale behind his desire for the ...

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