Keith Bryan Taylor, 43, was
sentenced to death in October 1990 in Pierce County for killing his 29-year-old
estranged wife the day he received a court order to stay away from her.
When an officer went to check on Lorrie Taylor on Jan. 12, 1989, Mr.
Taylor answered the door dripping blood.
The jury rejected an insanity
defense by Mr. Taylor, who had been hospitalized for paranoid
schizophrenic in 1987 and 1988.
(261 Ga. 287)
(404 SE2d 255)
Murder. Pierce Superior Court. Before Judge Blount.
The appellant, Keith Bryan Taylor, was convicted
by a jury and sentenced to die for the murder of his wife Lori
1. The Taylors moved into an apartment in
Blackshear in July of 1986. Two years later, in August of 1988, Lori
Taylor removed Keith Taylor's name from the lease and changed the
locks. After that time, according to the apartment manager, Keith
Taylor "wasn't supposed to be living there." However, Keith Taylor
apparently moved back into the apartment sometime before January 12,
On that date, Lori Taylor's cousin drove Lori and
Keith Taylor and their two children first to a pawn shop and then to
the Pierce County Courthouse. Lori Taylor reported that her husband
had threatened her and obtained a "good-behavior warrant." It was
agreed that Keith Taylor would collect his personal effects from the
apartment and move out.
Lori Taylor rode back to the apartment with her
cousin, while Keith Taylor walked the two blocks or so to the
apartment with the two children. Less than ten minutes later, a
police officer drove to the apartments, to check on the situation
following the issuance of the good-behavior warrant.
When he arrived, the children were locked out of
the apartment. The victim's cousin had heard the victim saying, "Keith,
don't do it." The officer knocked on the door. Keith Taylor answered.
There was blood on his jacket and his hands were "dripping" with
blood. He told the officer to take him to jail.
Lori Taylor was still alive, but died after the
arrival of emergency medical technicians. The autopsist testified
that she had suffered painful but non-fatal wounds to her head,
chest and back. In addition, she had suffered a potentially fatal
stab wound deep enough to penetrate her pleural cavity which was two-thirds
filled with blood when he conducted the autopsy.
Her death was caused by a number of slash wounds
which cut her neck practically from ear to ear, completely severed
her trachea and reached "completely back to the front part of the
cervical spine, or spinal column." The autopsist stated he could not
say "exactly how many cuts were involved in making these wounds"
because some cuts overlapped others and some likely "obliterated"
others, but he could count "at least the beginning of six individual
trails of incised wounds" in one of the two large gaping wounds "one
above the other" in the neck. All the wounds appeared to have been
inflicted before death.
A bloody knife was found in the front hall closet
of the apartment. Keith Taylor's son identified the knife as one the
The evidence supports the jury's finding that
Keith Taylor killed his wife. The defendant's primary defense was
his mental condition. Although not conceding that he was the person
who had committed the crime, he contended he was insane at the time
of the crime or at least was mentally ill at the time of the crime.
Taylor testified on his own behalf at trial. He
had been in the army for nine years. He had psychological and
substance abuse problems while in the army and was discharged in
1984 after he refused to obey a direct order by a superior officer.
After his discharge, he experienced considerable difficulty
obtaining and keeping a job. He worked for three months with the
City of Blackshear in 1986, but was terminated when he was injured
on the job.
Taylor testified that upon his return to the
apartment from the Pierce County Courthouse, he looked for his wife
because he did not understand what she was doing. He found no one in
the apartment except possibly his son. Then he heard someone
knocking at the front door. When he opened the door, he saw the
policeman. He knew something was wrong because he (Taylor) had blood
on his hands.
Taylor had been evaluated in April of 1987 by a
psychologist in connection with Taylor's application for social
security disability benefits. The "diagnostic impressions" of the
psychologist were "borderline intellectual functioning,
schizophrenia, paranoid, chronic." He also described Taylor as being
"manipulative, self-serving and capricious," as capable of sudden
mood changes, and as being an individual who had "little in the way
of incentive or ambition" and showed "no evidence of hallucinations,
illusions, notions of grandiosity, ideas of reference or influence,
thought broadcasting, flights of ideas, thought blocking, mania/hypomania,
depersonalization, derealization, a poverty of emotion or bizarre
Taylor was counseled in 1987 and 1988 at the
Satilla Community Mental Health Clinic. Two of his counselors (neither
of whom were psychologists -- both had master's degrees in theology)
testified at trial that, based on Taylor's self-reported auditory
hallucinations, they initially diagnosed him as being paranoid
schizophrenic. They counseled with the defendant about his drug,
alcohol and gambling problems, and his inability to obtain work. One
of the counselors testified that Taylor was a "spoiled brat"
determined to "get his way."
A psychiatrist connected with the clinic
testified that she saw the defendant in February of 1989 (after the
crime occurred), and diagnosed "cocaine abuse, alcohol abuse,
borderline intellectual functioning, schizoid personality and
paranoid personality." She did not diagnose paranoid schizophrenia,
noting that cocaine abuse could "mimic" that disorder. She
acknowledged that before the defendant's arrest she had signed an "adjudication
letter" containing a diagnosis of "malingering and substance abuse"
and a report that Taylor attempted to use "mental illness to keep
from facing responsibility when he gets into trouble."
A clinical forensic psychologist was retained
with court-provided funds to evaluate the defendant after his arrest.
He interviewed the defendant at jail and reviewed his medical
history. He concluded that Taylor "suffers from a paranoid
schizophrenic disorder." In his opinion, Taylor was not malingering.
He was, however, unable to administer a battery of written
psychological tests because Taylor refused to take them. He
testified that Taylor ordinarily was capable of differentiating
right from wrong, but that in connection with his wife he "would
have severe limits in his ability to differentiate right and wrong."
The senior forensic psychologist for the Georgia
Regional Hospital in Savannah evaluated Taylor. He testified for the
state that in his opinion the defendant did not suffer from any
serious mental disorder. In addition, the physician assigned to the
jail testified that he had treated Taylor for physical ailments on
several occasions at the jail and did not observe Taylor behaving in
an unusual manner.
(a) The defendant objected to the testimony of
the state's "psychologist" from the Georgia Regional Hospital in
Savannah. His objections were that the witness held a Ph.D. degree
in counseling, rather than psychology, that he was not an expert
clinical psychologist, and was not qualified to render an expert
opinion about the defendant's mental condition.
The witness testified that he held a bachelor's
degree in psychology, a master's degree in rehabilitation counseling
and a Ph.D. degree in counseling with emphasis in corrections and
correctional counseling. His master's degree coursework consisted of
approximately one-third counseling courses, one-third psychology
courses and one-third electives. His doctorate coursework was
equally divided between psychology and counseling coursework with no
electives. He has post-degree training in forensic evaluations, is
employed as a senior forensic psychologist by the state, and belongs
to the American Psychological Association, the Georgia Psychological
Association, the Coastal Association of Psychologists, and the
American College of Forensic Psychology. He has conducted over 300
psychological evaluations for superior courts in this state, and has
been declared an expert witness in the field of forensic psychology
in both state and federal courts.
This court has held that the trial judge has a
discretion in accepting or rejecting the qualifications of the
expert, and his judgment in that respect will not be disturbed on
appeal unless abused To qualify as an expert . . . generally all
that is required is that a person must have been educated in a
particular skill or profession: his special knowledge may be derived
from experience as well as study. [Cits.] Formal education in the
subject at hand is not a prerequisite for expert status." Bowden v.
State, 239 Ga. 821, 826 (3) (238
SE2d 905) (1977) (cert. den. 435 U. S. 937) (1978); [cits.].
[Brown v. State, 245 Ga. 588, 589-590
(1) (266 SE2d 198) (1980).]
The trial court did not err by overruling the
defendant's objection to the expertise of this witness, or by
allowing the witness to testify as an expert witness in the field of
(b) The defendant claims a violation of OCGA
17-7-130.1, which provides, in part:
When notice of an insanity defense is filed, the
court shall appoint at least one psychiatrist or licensed
psychologist to examine the defendant and to testify at trial. This
testimony shall follow the presentation of the evidence for the
prosecution and for the defense, including testimony of any medical
experts employed by the state or by the defense. The medical
witnesses appointed by the court may be cross-examined by both the
prosecution and the defense. . . .
The defendant argues that the Code was violated
in two respects. First, there is no evidence in the record that the
psychologist appointed by the court to examine the defendant was a
licensed psychologist. Second, he was called as a witness by the
state instead of by the court.
(c) The defendant argues the evidence demands a
finding of not guilty by reason of insanity or, at least, guilty but
mentally ill. We do not agree. The evidence, viewed in the light
most favorable to the state, supports the jury's conclusion that the
defendant was neither insane nor mentally ill. See Stripling v.
State, 261 Ga. 1, 4 (3 a) (401
SE2d 500) (1991). The evidence supports the conviction.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. The trial court did not abuse its discretion
by denying the defendant's motion for sequestered voir dire at the
competency trial and at the trial of the case-in-chief. See Curry v.
State, 255 Ga. 215 (2 a) (336
SE2d 762) (1985); Williamson v. Lucas,
171 Ga. App. 695 (1) (320 SE2d 800) (1984).
3. There was no abuse of discretion in the trial
court's control of the competency-trial voir dire examination. Curry
v. State, supra at 218; Waters v. State, 248
Ga. 355, 363 (3) (283 SE2d 238)
4. The defendant was not denied an evidentiary
hearing on his motion for change of venue. He simply chose not to
present evidence in addition to the voir dire examination of the
prospective jurors. Compare Villa v. State,
190 Ga. App. 530 (2) (379 SE2d 417) (1989) (defendant's
request for evidentiary hearing erroneously denied). The record
supports the trial court's denial of the defendant's motion for
change of venue. Lee v. State, 258 Ga. 82 (9)
(365 SE2d 99) (1988).
5. Taylor contends the court erred by qualifying
two prospective jurors who were, Taylor argues, impermissibly biased
in favor of a death sentence. We note that the trial court well
understood its duty in this regard. At a pre-trial hearing, the
[T]he two obligations of a juror . . . [are] to
render a verdict in accordance with the evidence and the law. If the
juror's disapproval of capital punishment is so strong that it would
prevent him or her from being able to perform those two obligations
as a juror, then I'm going to let that juror be excused for cause.
But the other side of the coin is, if the juror's views are so
strongly in favor of capital punishment that he can't perform those
two functions, I'm going to excuse him for cause, too. It's a two-edged
sword. Both sides are entitled to a jury whose minds are not closed
on the question of what punishment should be [imposed] for murder. [The
jury] should be able to listen to the evidence and the law and form
a verdict based upon that and not some already fixed views on
capital punishment. [Transcript, Hearing of August 1, 1990 at p.
Compare Skipper v. State,
257 Ga. 802 (8) (364 SE2d 835) (1988).
The two prospective jurors at issue here gave
conflicting answers to the death-qualification questions, but the
court was authorized to conclude that the "final distillation" of
their thoughts about the death penalty supported their qualification
as jurors. See Spivey v. State, 253 Ga. 187,
197, fn. 3 (319 SE2d 420) (1984).
There was no error. Jefferson v. State, 256
Ga. 821 (2) (353 SE2d 468) (1987).
6. The autopsist brought with him to trial 13
photographs he took of the victim's body. Defense counsel did not
see any of them until trial. Neither did the prosecutor, apparently.
Defense counsel objected to the lack of an opportunity to review the
photographs before trial. The objection was overruled. Ultimately,
three of these photographs were admitted in evidence. The rest were
excluded, on grounds of unnecessary gruesomeness or duplication. In
addition, three crime-scene photographs of the victim were admitted,
and two excluded. Of the six photographs admitted at trial, the
defendant complains on appeal about four of them.
(a) The defendant contends that the autopsist's
photographs should have been furnished him prior to trial as "scientific
reports" discoverable pursuant to OCGA
17-7-211. This contention was not raised at trial. Moreover,
these photographs were not "written scientific reports" discoverable
under OCGA 17-7-211. Gosdin v. State,
176 Ga. App. 381 (4) (336 SE2d 261) (1985).
(b) Alternatively, the defendant contends, as he
did at trial, that these photographs should have been disclosed to
him before trial pursuant to the trial court's pre-trial directive
that the state provide defense counsel an opportunity to inspect and
test physical evidence. However, even assuming the court's order
could be read broadly enough to encompass the photographs at issue,
"the enforcement of its directives is a matter committed primarily
to the trial court's sound exercise of discretion." Hightower v.
State, 259 Ga. 770, 771 (2) (386
SE2d 509) (1989).
When defense counsel pointed out that he had not
viewed these photographs before trial, the court asked defense
What harm have you incurred? You're going to be
able to cross-examine this witness with respect to these photographs.
Let's assume all [you say] is true, what harm have you incurred in
not having seen them until now?
Defense counsel could only answer:
I don't know what harm it's going to be, Judge,
but I want to get the objection on the record.
The trial court overruled the objection but
offered defense counsel a recess if he wanted one before beginning
There was no abuse of discretion. Hightower v.
(c) The defendant contends one of the crime-scene
photographs of the victim's body should have been excluded because
it showed two small discs attached to her body, apparently placed
there by emergency medical technicians during the resuscitation
attempt. He contends the photograph violates the rule established in
Brown v. State, 250 Ga. 862 (5) (302 SE2d
347) (1983), forbidding in most cases the use of photographs
depicting the victim "after autopsy incisions are made or after the
state of the body is changed by authorities. . . ." Id. at 867.
The defendant did not object to the admission of
this photograph at trial, on this or any other ground. It is clear,
however, that this photograph was not subject to a Brown objection.
It was a pre-autopsy photograph, and merely attaching two small
discs (the defendant calls them "leads") to the victim's chest area
did not meaningfully change the "state" of the body. There was no
(d) The defendant contends that two of the
autopsist's photographs should have been excluded as duplicative. We
note that the trial court reviewed the photographs with an eye
toward avoiding duplications and that 12 of the state's 18
photographs of the body were not admitted in evidence. While
recognizing that there was of necessity some "overlap," the court
determined that the photographs finally selected for admission "don't
appear duplicated to me." The record supports the trial court's
judgment, and we find no abuse of discretion. Hicks v. State,
256 Ga. 715 (13) (352 SE2d 762) (1987).
7. When the magistrate testified that she had
issued a "good behavior warrant" at the victim's request, the state
asked her to explain the "purpose" of such a warrant. The defendant
objected that she was not "qualified to say what the purpose of the
warrant is " The court ruled:
Well, she's the chief magistrate, and she is
authorized under the law to issue good behavior warrants, and I'm
going to let her testify as to the function under the law that such
a warrant performs.
Although the magistrate was not an attorney, the
trial court was authorized to conclude that she was qualified by her
position and experience to answer the question. See Brown v. State,
245 Ga., supra at (1).
8. After the defense questioned the magistrate
about portions of testimony she had given in a previous hearing, the
state was entitled to bring out additional relevant portions of the
magistrate's prior testimony, Wynes v. State,
182 Ga. 434 (3) (185 SE 711) (1936),
notwithstanding the defendant's claim that he was not trying to
impeach the witness but "simply trying to refresh [her] memory."
Metts v. State, 162 Ga. App. 641 (3) (291
SE2d 405) (1982).
9. During his closing argument, the prosecutor
attempted to explain why the identification of exhibits became "tedious"
That is a procedural thing that we are under. And
while it distracts from the flow it is absolutely necessary, so that
everyone will know, should they review this, or should someone else
want to know at some other time what exhibit was what, we will know.
The defendant contends this argument was an
impermissible comment on the possibility of appellate review, citing
OCGA 17-8-76 (a) and Caldwell v.
Mississippi, 472 U. S. 320 (105 SC 2633, 86 LE2d 231) (1985).
In Caldwell v. Mississippi [, supra], the United
States Supreme Court held that a death sentence was invalid where a
jury imposed it after a prosecutor argued to the jury that, if its
sentencing determination was unfair, it could be corrected by an
appellate court. Such an argument, the Court reasoned, was
misleading as to the nature of appellate review, and might
impermissibly tempt the jury to delegate its sentencing
responsibility to the appellate court. [Romine v. State,
256 Ga. 521, 532 (350
SE2d 446) (1986).]
Long before Caldwell v. Mississippi, supra, was
decided, this court condemned similar arguments. In Prevatte v.
State, 233 Ga. 929 (214 SE2d 365) (1975),
for example, we reversed the defendant's death sentences because the
prosecutor had informed the jury that this court would review the
sentence and set it aside if we did not think it warranted. Such
arguments, we held, "encourage the jury to attach diminished
consequence to [its] verdict, and to take less than full
responsibility for [the] awesome task of determining life or death.
. . ." Id. at 931.
10. The defendant's request to charge number 7
was adapted from our suggested charge on the b (7) aggravating
circumstance set out in an Appendix to West v. State,
252 Ga. 156 (313 SE2d 67) (1984).
The defendant's requested charge, however, contained additional
language, such as: "You are cautioned that all murders are
horrible." The trial court declined to give the requested
instruction, but gave instead a charge on the b (7) circumstance
that was more nearly verbatim to the suggested charge in West. There
was no error. Parker v. State, 256 Ga. 543
(11) (350 SE2d 570) (1986).
11. The court declined to give the defendant's
requested charge on residual doubt, but observed that the defense
could argue residual doubt as a mitigating circumstance. There was
no error. Moon v. State, 258 Ga., supra at 759-760 (33). It is well
settled that a trial court is not required in its charge to "identify
mitigating circumstances offered by the defendant." Davis v. State,
255 Ga. 598, 612 (22) (340
SE2d 869) (1986).
12. The trial court did not err by failing to
deliver the defendant's requested charges 14 and 15. The former
essentially was covered by the charge the court did give, see Pruitt
v. State, 258 Ga. 583, 588 (13) (373
SE2d 192) (1988), and the latter was unnecessary absent any
request by the jury for instruction on the subject of parole. Quick
v. State, 256 Ga. 780, 787 (9) (353
SE2d 497) (1987).
13. The jury found as a statutory aggravating
circumstance that the offense of murder was "outrageously vile,
horrible, inhuman in that it involved torture and aggravated battery
to the victim." See OCGA 17-10-30 (b)
(7). The defendant contends that the evidence does not support this
finding, that the b (7) aggravating circumstance is
unconstitutionally vague and overbroad, that the disjunctive
language of the statute allows non-unanimous verdicts, and that in
any event his death sentence is excessive and disproportionate to
sentences imposed in similar cases.
(a) The defendant contends the wording of the b
(7) aggravating circumstance does not sufficiently channel and limit
the sentencer's discretion to impose the death sentence. See, e.g.,
Maynard v. Cartwright, 486 U. S. 356 (108 SC 1853, 1858, 100 LE2d
372) (1988). As we have recognized:
"a [death-penalty] system 'could have standards
so vague that they would fail adequately to channel the sentencing
decision pattern of juries with the result that a pattern of
arbitrary and capricious sentencing like that found unconstitutional
in Furman [v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346)
(1972)] could occur.' [Cit.] To avoid this constitutional flaw, an
aggravating circumstance must genuinely narrow the class of persons
eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder." Zant v. Stephens,  U. S. 
(103 SC 2733, 77 LE2d 235) (1983). [Davis v. State,
255 Ga. 588, 594 (340
SE2d 862) (1986).]
Hence, we have not only provided a limiting
construction of the b (7) circumstance, see Hance v. State,
245 Ga. 856 (3) (268 SE2d 339) (1980),
we have provided a suggested jury instruction incorporating the
limiting construction delineated in Hance. See West v. State,
252 Ga. 156, 161-162 (313
SE2d 67) (1984). The instruction suggested in West was
delivered by the trial court to the jury in this case.
We are satisfied that our construction of the b
(7) circumstance sufficiently channels and limits the sentencer's
discretion, and that the b (7) circumstance is not
unconstitutionally vague or overbroad as applied. Compare Shell v.
Mississippi, 498 U. S. ---- (111 SC 313, 112 LE2d 1) (1990).
(b) There was no possible lack of unanimity in
the jury's b (7) finding, because it was stated in the conjunctive,
not the disjunctive. Holiday v. State, 258 Ga.
393 (19 b) (369 SE2d 241)
(c) The defendant contends the evidence does not
support the jury's b (7) finding. He contends there was no
aggravated battery other than that which killed the victim, and no
intentional torture. He compares this case to such cases as Phillips
v. State, 250 Ga. 336 (6 a) (297
SE2d 217) (1982) and Whittington v. State,
252 Ga. 168 (313 SE2d 73) (1984), in
which we found the evidence insufficient to support a finding of the
b (7) circumstance.
Phillips went to the school where his wife worked,
fired his gun four or five times in rapid succession, and left. We
compared the facts of Phillips' case to cases in which the defendant
had inflicted multiple wounds in a deliberate attempt to inflict
serious physical abuse before death. We concluded that no such
deliberate attempt had occurred in the Phillips case and that "where
the defendant kills his victim by four or five shots in rapid
succession, no other facts appearing, he has not tortured the victim.
. . ." Phillips, supra at 342.
Theresa Whittington murdered the wife of the man
with whom she was in love, at his behest. He gave Whittington a gun
and sent her into the victim's house to kill her. Whittington fired
one shot and ran out of the house. The victim was still alive, and
the husband ordered Whittington back inside to "get it over with."
Whittington reentered the house and shot the victim once more, this
time killing her. We held that the evidence failed to support a
finding of intentional torture.
In this case, after being warned to stay away
from his wife, the defendant entered her apartment, locked the doors,
and viciously attacked his wife with a knife, cutting her five times
in her face, once on her hand, another six times in her chest and
back (one of these wounds was deep enough to penetrate her left lung
and was potentially fatal), and slashing her throat at least seven
times so deeply as to nearly decapitate her.
This case is not similar to Phillips or
Whittington. The evidence here supports a finding that the defendant
"inflicted deliberate, offensive and prolonged pain on his victim
prior to death," Phillips, supra at 341, and that the defendant
deliberately and needlessly mutilated the victim. The jury was
authorized to conclude from the evidence that the offense of murder
involved the commission of torture and aggravated battery.
3 Hall v. State,
259 Ga. 412 (383 SE2d 128) (1989);
Hicks v. State, 256 Ga. 715 (352 SE2d 762)
(1987). The evidence, viewed in the light most favorable to
the state, supports the jury's b (7) finding beyond a reasonable
doubt. OCGA 17-10-35 (c) (2).
(d) We do not find that Taylor's death sentence
is either excessive or disproportionate to sentences imposed in
similar cases, considering both the crime and the defendant. OCGA
17-10-35 (c) (3). The similar cases
listed in the Appendix support the death sentence in this case.
14. It is not error to tell the jury that a death
sentence will not be imposed unless the jury "recommends the death
sentence in its verdict." The instructions given clearly informed
the jury its recommendation would be binding. Isaacs v. State,
259 Ga. 717 (43 h) (386
SE2d 316) (1989).
15. During its instructions to the jury at the
sentencing phase, the trial court stated that the b (7) aggravating
circumstance contended by the state was the "only statutory
aggravating circumstance that the evidence justifies or authorizes
you to consider." Although the defendant conceded at trial that the
court's use of the word "justifies" instead of "authorizes" was a
slip of the tongue, he now contends the charge was harmful error
because it implied that if the jury found the b (7) circumstance the
death penalty automatically should be imposed. However, not only did
the judge recognize his slip of the tongue immediately and attempt
to correct it in the same sentence in which it occurred, but he then
completely restated the sentence using the word "authorizes" and
omitting the word "justifies." The "palpable" slip of the tongue
could not have "misled or confused the jury." Gober v. State,
247 Ga. 652 (3) (278 SE2d 386) (1981).
There was no reversible error.
16. We do not find that Taylor's sentence of
death was imposed as the result of impermissible passion or
prejudice or any other arbitrary factor. OCGA
17-10-35 (c) (1). The defendant's conviction and death
sentence are affirmed.
Harry D. Dixon, Jr., District Attorney, George E.
Barnhill, Deborah M. Perlis, Assistant District Attorneys, Michael
J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.
1 The crime
occurred on January 12, 1989. The defendant was arrested the
same day. After the original indictment was quashed, Taylor was
re-indicted on May 14, 1990. The trial began September 24, 1990.
The jury reached its verdict as to sentence on September 28,
1990. The court issued its written sentence, in accordance with
the jury's verdict, on October 1, 1990. No motion for new trial
was filed. The case was docketed in this court November 30,
1990. The case was argued orally on February 11, 1991.
2 Since there
was no objection at trial, we need not decide whether a party is
precluded from calling the "court's" witness as its own or whether,
if the party does so, the court must
3 The offense
of aggravated battery is committed when the defendant "maliciously
causes bodily harm to another . . . by seriously disfiguring his
body OCGA 16-5-24 (a).
Boatright & Futch, Jimmy J. Boatright,
Kenneth E. Futch, Jr., Beauchamp & Associates, Kermit S. Dorough,
Jr., for appellant.
DECIDED MAY 10, 1991 -- RECONSIDERATION DENIED
JUNE 7, 1991.
(273 Ga. 69)
(538 SE2d 416)
Habeas corpus. Butts Superior Court. Before Judge Stone from Enotah
Keith Brian Taylor killed his wife on January 12,
1989, by stabbing and slashing her with a knife. A jury convicted
him of murder and recommended a death sentence, and this Court
affirmed the conviction and sentence. Taylor v. State,
261 Ga. 287 (404 SE2d 255) (1991). The
United States Supreme Court denied certiorari. Taylor v. Georgia,
505 U. S. 947 (112 SC 393, 116 LE2d 343) (1991). Taylor filed a
petition for a writ of habeas corpus on December 20, 1995, and
amended the petition on November 21, 1997. After an evidentiary
hearing, the habeas court granted the writ and vacated Taylor's
conviction and sentence due to ineffective assistance of counsel.
The warden appeals this decision. We affirm.
Claims That Are Defaulted
2. The failure to raise an issue on direct appeal
that could have been raised at that time defaults that issue on
habeas corpus, unless the habeas petitioner can meet the cause and
[A] failure to make timely objection to any
alleged error or deficiency or to pursue the same on appeal
ordinarily will preclude review by writ of habeas corpus. However,
an otherwise valid procedural bar will not preclude a habeas corpus
court from considering alleged constitutional errors or deficiencies
if there shall be a showing of adequate cause for failure to object
or to pursue on appeal and a showing of actual prejudice to the
Ineffective Assistance of Counsel
3. Taylor's claim of ineffective assistance of
counsel is neither barred nor defaulted because such claim need not
be raised until trial counsel no longer represents the defendant.
White v. Kelso, 261 Ga. 32 (401 SE2d 733)
(1991). Taylor's trial counsel represented him through his
direct appeal and new counsel began representing him on habeas
corpus after trial counsel ceased their representation. Since
ineffective assistance of trial counsel was raised at the first
available opportunity after new counsel came onto the case, it
remains a viable claim on habeas corpus. See id.
In order to prevail on a claim of ineffective
assistance of counsel, Taylor must show both deficient performance
by trial counsel and actual prejudice. Strickland v. Washington, 466
U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith v.
Francis, 253 Ga. 782, 783 (1) (325
SE2d 362) (1985). To show deficient performance, he must
demonstrate that trial counsel's performance was not reasonable
under the circumstances confronting them before and during the trial,
without resorting to hindsight. Strickland, supra at 689-690; Smith,
supra. Taylor's burden is high because trial counsel is "strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment." Strickland, supra at 690. To show actual prejudice,
Taylor must demonstrate 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, supra. A claim
of ineffective assistance is a mixed question of law and fact.
Strickland, supra at 698; Lajara v. State,
263 Ga. 438 (3) (435 SE2d 600) (1993). On appeal, we accept
the habeas court's factual findings unless clearly erroneous, but we
independently apply the relevant legal principles to the facts.
Linares v. State, 266 Ga. 812 (2) (471 SE2d
The circumstances of the homicide clearly show
that Taylor killed his wife, Lori Taylor. See Taylor, 261 Ga. at
287-288. After Lori took out a "good behavior" warrant to have him
removed from their apartment, Taylor and his wife were alone in the
apartment. From outside, Lori's cousin heard her say, "Keith, don't
do it." A police officer knocked on the apartment door a few minutes
later and Taylor answered "dripping" with blood. Taylor said, "take
me to jail" and he was placed in a patrol car. Lori was found lying
on the floor dying from multiple stab and slash wounds. A bloody
knife, identified by Taylor's son as belonging to Taylor, was found
hidden inside a closet.
Taylor has a long history of mental illness that
trial counsel attempted to use in his defense in both phases of his
trial. The State countered with evidence that Taylor may have been
malingering by exaggerating his mental problems. In the final order
vacating Taylor's conviction and sentence, the habeas court
identified several areas where trial counsel was ineffective. Before
these areas can be discussed, it is necessary for us to recite
Taylor's background, the circumstances leading up to trial, and the
evidence presented at trial.
Trial counsel subpoenaed records from the many
hospitals that had treated Taylor and they spoke with Taylor and his
mother. In addition to the diagnoses and treatments, the records
contained a family and work history. Based on these sources, trial
counsel knew the following: Taylor was born in 1954 and raised in
Miami as one of ten children. He has one brother who is
schizophrenic and a sister who is mentally retarded. His school
history shows some difficulties and expulsions, but he managed to
obtain a high school diploma and attend some college classes. He was
married three times, but none of the marriages lasted. In 1975, he
enlisted in the Army and was trained as a computer operator. In
1977, he married Lori Taylor and they had two children. He reached
the rank of staff sergeant, but in 1980 his military career began to
deteriorate. The records reveal a nervous breakdown in 1980 that
resulted in extended treatment in a mental hospital. The diagnosis
from this hospitalization was adjustment disorder. The records also
note paranoia and substance abuse. Also, he was twice treated at
mental hospitals while stationed in Germany in 1983 and 1984. Much
of his paranoia centered around his wife, who he said he did not
trust; he was also upset about her conversion to the Jehovah's
Witness faith. He was discharged from the Army in 1984.
After his discharge, Taylor continued to have
significant mental health problems and he was repeatedly treated for
these problems. Diagnoses included chronic paranoia, mixed
personality disorder, depression, substance abuse, suicidal ideation,
and schizophrenia. He was frequently treated with anti-psychotic
medications such as Haldol and Mellaril. There are also indications
in some of the reports that he may be a malingerer. The extent of
his paranoia is documented in a report by a psychologist, Dr. Eaton,
who evaluated Taylor in April 1987. Dr. Eaton wrote that Taylor
spent much of his time "thinking about a conspiracy which he
believes has been launched against him." He used to shoot pool, but
no longer did this "because he fears someone involved with a
conspiracy will shoot him." He was not working, had marital problems,
and "fears and mistrusts everyone and consequently has no friends."
He spent most of his time at home, inside his house. Lori Taylor
told Dr. Eaton that Taylor was extremely jealous and had been for
some time. She reported that he accused her of being in strange cars
when she had been at work. She also confirmed that Taylor believed
that a number of people were conspiring against him. Dr. Eaton
further indicated that Taylor was paranoid in his belief that his
wife had been unfaithful to him, and that he believed that his in-laws,
the city of Blackshear (for whom he had worked for three months),
and his wife's church were plotting to kill him. Dr. Eaton diagnosed
Taylor with chronic paranoid schizophrenia. He also noted that
Taylor appeared to be "manipulative, self-serving, and capricious."
Taylor was periodically treated on an out-patient
basis at the Satilla Mental Health Clinic from 1987 to 1989 and
diagnoses included paranoid schizophrenia; his conspiracy theories
involving his wife and in-laws were also noted. He was treated with
Haldol and Mellaril. In August 1988, Taylor was hospitalized at the
Georgia Regional Hospital in Savannah due to suicidal thoughts and
threats to neighbors. He was diagnosed with a mixed personality
disorder and also suspected of malingering. His paranoia regarding
his wife, that he suspected her of seeing other men, was noted. He
was discharged with a prescription for Haldol. At this time Taylor
was separated from his wife, who had removed his name from the lease
on their Blackshear apartment and had the locks changed. In October
1988, Taylor was admitted to the VA hospital in Miami for ten days
due to depression and a fear he may hurt himself. A psychiatrist
noted his long history of mental problems dating back to the early
1980s, but also stated in a report that Taylor appeared to
exaggerate his symptoms to gain attention. He was diagnosed with
substance abuse and dependent personality disorder.
The Circumstances Before Trial
Attorneys Kenneth Futch and Jimmy Boatright were
appointed to represent Taylor. They testified at the habeas
evidentiary hearing that Taylor was sometimes lucid and helpful and
sometimes uncooperative. Taylor told them he thought his wife had
been cheating on him and that others were part of a conspiracy
against him. Taylor frequently only wanted to discuss the various
conspiracies against him and he would not provide an account of the
events during the killing. Trial counsel decided, based on the
circumstances of the crime and Taylor's history, that a mental
health defense in both phases of the trial would be their best
strategy. Taylor was able to provide the names of many of the
hospitals and doctors that had earlier treated him and trial counsel
subpoenaed records from them.
A letter Taylor wrote to Futch in March 1989 is
indicative of his mental state in jail shortly after the killing. He
wrote that it had been three weeks since he had been to the Satilla
Mental Health Clinic and he believed that he was in need of more
mental health treatment. He said that his medication had run out and
the jailers were reluctant to take him for more treatment. He
claimed to be suffering from uncontrollable crying and shaking, bad
dreams, and headaches. He believed that Lori's father was making
payoffs to the jail personnel to "get to me" and that "they want me
to commit suicide." He asked Futch for help in getting more
The trial court ordered a competency evaluation
and Taylor was evaluated by Dr. D'Alessandro in July 1989. Dr.
D'Alessandro administered several tests to Taylor and found him to
be competent and "free from any major psychiatric disorder of either
mood or thought." Dr. D'Alessandro found that drug and alcohol abuse
were Taylor's major problems and noted that possible malingering was
reported in some of Taylor's previous evaluations.
Trial counsel testified before the habeas corpus
court that Taylor's paranoia and conspiracy beliefs increased as the
trial approached. He became less and less cooperative. In 1990,
trial counsel hired an investigator to help with Taylor's case. The
investigator testified that he met with Taylor several times before
trial and each time Taylor acted bizarre. Taylor kept telling the
investigator that the furniture in his apartment had been moved "to
confuse him." When the investigator tried to tell Taylor that this
information had no bearing on the case, Taylor simply repeated this
belief and would talk about nothing else.
Trial counsel hired a psychologist to
independently evaluate Taylor. After reviewing Taylor's past medical
records, the psychologist, Dr. Fisher, tried to evaluate Taylor on
July 16, 1990. Taylor refused to say anything for at least the first
15 minutes of their meeting and he repeatedly cried during the
interview. He described a conspiracy against him by the city of
Blackshear and his father-in-law to split up Taylor and his wife and
then to have him killed. He stated that his attorneys were now a
part of the conspiracy as well as Dr. Fisher. He refused to take any
psychological tests. Dr. Fisher wrote trial counsel and summarized
Taylor's mental health history. He indicated that he was unable to
administer testing to Taylor because Taylor believed that his
attorneys and Dr. Fisher were part of a conspiracy against him. Dr.
Fisher opined that Taylor was not malingering. He concurred with
past evaluators who found Taylor's paranoia to be a chronic
condition, and he further stated that Taylor's paranoid thought
disorder was progressively deteriorating. He warned that Taylor's
paranoia was making him unable to work cooperatively with his
lawyers or his psychologist. He also wrote, "It is my understanding
that he is not on medication, and consequently it is the opinion of
this evaluator that this condition will continue, with rejection of
nearly everyone around him as being involved in a conspiracy, until
treatment is forthcoming." Boatright testified at the habeas corpus
hearing that by this time Taylor's paranoia had reached a level
where he often refused to communicate with trial counsel during
court proceedings. Handwritten notes made by Futch on July 17, 1990,
show that trial counsel considered making a motion to have
medication administered to Taylor, but no such motion was made.
Dr. Fisher tried to evaluate Taylor again on
August 30, 1990, with similar results. He wrote trial counsel that
Taylor "is a paranoid schizophrenic whose condition is getting worse."
Taylor still refused to participate in any testing because of his
belief in a conspiracy involving Dr. Fisher and his lawyers, who he
saw as part of the "evil spirits" working to do him in. Dr. Fisher
warned trial counsel that there were two problems associated with
Taylor's deteriorating condition. One was that the jailers were
bound to testify that Taylor, without being on medication, interacts
with other inmates by playing basketball and chess and a jury would
likely believe that this indicates a lack of mental illness. The
second problem was that Taylor had submitted to testing conducted by
the State's psychologist, Dr. D'Alessandro, the previous year when
he would not now cooperate with his own expert. In other words, the
State expert will be able to opine about a lack of mental illness
revealed by testing, and Dr. Fisher will be forced to concede that
he conducted no testing on the defendant. Dr. Fisher stated that
these problems would make convincing the jury that Taylor is a
paranoid schizophrenic very difficult. Dr. Fisher continued, "My
hope is that as his trial nears, he will somehow become more
compliant to testing on my part in order that we can get some
material to contradict what the State's psychologists may well have."
Dr. Fisher ventured that Taylor's condition could further
deteriorate before trial or he might improve "if he is able to
recognize the seriousness and complexity of his situation." The case
proceeded to trial.
The Competency and Criminal Trials
A competency trial was scheduled before Taylor's
criminal trial to determine whether Taylor was mentally fit to stand
trial. The competency trial began on September 24, 1990. It was
immediately apparent that the real question before the jury was
whether Taylor was genuinely mentally ill or malingering. Dr. Fisher
testified that Taylor was a paranoid schizophrenic and related his
conspiracy beliefs and his ten-year history of mental problems. He
opined that Taylor was not malingering. On cross-examination, he
explained that it was possible for a schizophrenic to play
basketball with other inmates and he conceded some old reports
indicated substance abuse and possible malingering. The defendant
was to be the next witness and he refused to take the stand. The
State then presented its case. Two jailers testified that Taylor's
behavior in jail was not unusual and that he interacted well with
other inmates, including playing chess and basketball with them. One
jailer conceded that he took Taylor to a mental health facility one
time. Dr. D'Alessandro then testified that he had tested Taylor in
July 1989 and in his opinion Taylor was competent to be tried and
not a paranoid schizophrenic. He said that he had not heard of
Taylor having any mental health problems while in jail, and that
basketball and chess were not activities typically engaged in by
paranoid schizophrenics. On cross-examination, he conceded that
Taylor had been prescribed Haldol in 1988 and that Haldol was a
major anti-psychotic drug. However, he averred that when he
evaluated Taylor in July 1989 he was not aware of Taylor being on
any psychotropic medication at that time. During closing argument,
the State argued that Taylor was a malingerer and that Dr. Fisher's
failure to test Taylor meant he could not accurately diagnose him.
The State conceded that Taylor had been on Haldol in the past, but
argued that there was no indication that Taylor was on Haldol now.
If Taylor was truly a paranoid schizophrenic, the prosecutor argued,
then trial counsel would have made arrangements to have Taylor
properly medicated. The jury found Taylor competent to stand trial.
The criminal trial followed the competency trial.
Whether Taylor was mentally ill or malingering remained the key
point of contention. After the State rested in the guilt-innocence
phase, the defendant testified. Taylor cried frequently and
testified about the various hospitals and clinics that had treated
him for "problems." He did not know what happened in the apartment
when his wife was killed; he said he was looking for "somebody" in
his house and he answered the door when the police officer knocked.
He knew something was wrong because there was blood on his hands. He
testified that his sofa had been moved as part of a conspiracy and
that lots of people in Blackshear were involved in the conspiracy.
On cross-examination, he admitted to playing chess and basketball in
jail, but said he "feels like it is a trap" when he speaks to people.
He said he often forgets things, that prospective employers would
not hire him because they prejudged him, that the Army conspired
against him, and that he was "tricked" into moving to Blackshear.
Dr. Eaton next testified that he diagnosed Taylor
with chronic paranoid schizophrenia in 1987, and that he had noted
Taylor's conspiracy beliefs. He also testified that Taylor was
manipulative and self-serving. Lonzie Webster, a counselor at the
Satilla Mental Health Clinic, counseled Taylor on several occasions
in 1987 and he testified that he believed Taylor was a paranoid
schizophrenic with a mixed personality disorder. He reported that
Taylor had been depressed and that his intellectual functioning had
seemed low. The chaplain at the Satilla Mental Health Clinic
testified that Taylor complained of visions and hearing voices in
1988, and that Taylor believed that his in-laws were trying to kill
him. The chaplain also believed that Taylor was a paranoid
schizophrenic, but noted that he was stable in September 1988 when
he was on Haldol. Dr. Fisher then testified about his two
evaluations of Taylor in 1990 and opined that Taylor was a paranoid
schizophrenic who was too paranoid to submit to testing. He
discussed Taylor's long history of mental illness and that, while
not currently on medication, Taylor had been frequently prescribed
anti-psychotic drugs like Haldol in the past. On cross-examination,
he claimed that Taylor was not malingering, but admitted that Taylor
had refused to take any psychological tests. He also stated that
Taylor's ability to play basketball in jail was irrelevant to his
diagnosis of paranoid schizophrenia. Dr. Sharma, a psychiatrist who
had worked at the Satilla Mental Health Clinic, saw Taylor
periodically from 1987 to 1989. She testified that Taylor displayed
symptoms such as crying, headaches, depression, and substance abuse.
She testified that Taylor was paranoid and she had often prescribed
Mellaril, an anti-psychotic drug. She last saw him in February 1989,
shortly after his arrest, and diagnosed him with having a paranoid,
schizoid personality, being substance abusive, and having borderline
intellectual functioning. She prescribed Haldol. She did not
diagnose paranoid schizophrenia, but considered it. On cross-examination,
she admitted that she had earlier noted that Taylor "wants to use
mental illness to keep from facing responsibility when he gets into
On rebuttal, the State presented Dr. Martin, the
jail doctor, who testified that he observed no behavior by Taylor
that was out of the ordinary. He could not recall whether he or any
other doctor had prescribed psychotropic drugs to Taylor. He said he
saw the defendant ten to twelve times for only such things as sinus
and teeth problems; he also denied that anyone at the jail had ever
asked him to examine Taylor for a psychological problem. Dr.
D'Alessandro then testified about his July 1989 evaluation of
Taylor, and said that he uncovered no major psychiatric disorders,
delusions, or hallucinations. He stated that if Taylor was actually
an unmedicated paranoid schizophrenic, he would find it hard to
engage in activities with other people, like basketball. Trial
counsel in closing argument asserted that Taylor was a paranoid
schizophrenic with a long history of mental illness. The prosecutor
in closing argued that Taylor was a malingerer who was not currently
on medication for schizophrenia so the jury could conclude that he
behaves normally when not abusing alcohol and illegal drugs. He said
Taylor was trying to trick the jury and that the only appropriate
verdict was guilty since Taylor was not insane or mentally ill. The
jury convicted Taylor of malice murder.
In the sentencing phase, the State presented no
additional evidence and the defense presented two witnesses. Dr.
Fisher testified that Taylor would function well in prison if
properly medicated 1 and he would
not be dangerous. Taylor's mother testified about Taylor's
background and said he was not violent; she asked for mercy. The
defense argued in closing that Taylor had no violence in his
background and that a death sentence would not benefit anyone. The
jury recommended the death penalty.
The habeas court found several areas where trial
counsel's performance was deficient, but we will focus on only two
deficiencies: (1) trial counsel's failure to ensure that Taylor was
properly medicated before his trials so that he could assist in his
defense and (2) trial counsel's failure to obtain the Pierce County
Jail records which would have contradicted the testimony of the jail
doctor and the jailers. We find that the habeas court's factual
determinations regarding these deficiencies were not clearly
erroneous. See Strickland, 466 U. S. at 698; Linares, 266 Ga. at 813
(1) Failure to ensure that Taylor was properly
medicated. The habeas court found trial counsel deficient for
failure to ensure that Taylor was properly medicated before trial so
that he could assist in his defense. Trial counsel was aware of
Taylor's long history of mental illness and that he had been
repeatedly treated with anti-psychotic drugs. Trial counsel also
knew that Taylor's paranoia was increasing and that he began to
consider trial counsel as part of the conspiracy arrayed against him.
He was increasingly uncooperative and trial counsel knew that he was
no longer being medicated for his mental illness. Taylor had written
Futch as early as March 1989 that he needed more mental health
treatment and that his medication had expired, but trial counsel
took no action. The investigator hired in 1990 also reported that
Taylor's behavior was bizarre and uncooperative. Most important,
however, were the repeated warnings by Dr. Fisher that Taylor's
paranoid schizophrenia was not being treated, his mental condition
was deteriorating, and the lack of medication made him refuse to
take psychological tests or otherwise cooperate with the doctor.
Moreover, Dr Fisher warned trial counsel of the
ramifications at trial of Taylor's refusal to cooperate with the
psychologist. As predicted by Dr. Fisher, the State argued that
Taylor's refusal to take tests for Dr. Fisher made Dr. Fisher's
diagnosis less reliable than the diagnosis of its expert. Also as
predicted by Dr. Fisher, the prosecutor argued that Taylor's
apparent ability to interact with other inmates while unmedicated
meant that he was a malingerer and not a schizophrenic. The State
further argued at trial that Taylor could not be genuinely sick or
Dr. Fisher or trial counsel would have ensured that he receive
medicine while in jail.
The test for determining whether trial counsel's
performance was deficient is whether a reasonable lawyer could have
acted, under the same circumstances, as defense counsel acted before
and during the trial. Turpin v. Lipham, 270
Ga. 208, 217 (510 SE2d 32)
(1998); Henry v. State, 269 Ga. 851 (5)
(b) (507 SE2d 419) (1998). Hindsight
is not employed, and our purpose in making this determination "is
not to grade trial counsel's performance, but simply to ensure that
the adversarial process at trial worked adequately." Lipham, supra.
"We are therefore highly deferential to the choices made by trial
counsel during a trial that are 'arguably dictated by a reasonable
trial strategy.' " Id. at 218, quoting Devier v. Zant, 3 F3d 1445,
1450 (11th Cir. 1993).
During the habeas corpus hearing, however, trial
counsel conceded that they had no strategic reason for failing to
ensure that Taylor was medicated so that he could cooperate with
them and Dr. Fisher. Despite their knowledge of Taylor's conspiracy
beliefs and Dr. Fisher's repeated warnings about his inability to
properly evaluate Taylor unless his condition improved, trial
counsel did not seek to have him examined by a medical doctor and
they did not pursue treatment for Taylor. They failed to respond
despite knowing that he was not on the anti-psychotic medication
with which he had been treated in the past, that his paranoid
condition was deteriorating, and that, as warned by Dr. Fisher,
Taylor's inability to cooperate would hurt them at trial. We
conclude that the habeas court did not err by finding that trial
counsel's performance was deficient due to the failure to adequately
prepare their client for trial. In effect, trial counsel chose a
strategy centered around their ability to convince the jury that
their client was a paranoid schizophrenic and not a malingerer, but
they proceeded to trial without taking the necessary action to
prevent this strategy from being seriously impaired by Taylor's non-cooperation.
No reasonable lawyer would have knowingly proceeded in this manner.
See Turpin v. Bennett, 270 Ga. 584,
590 (513 SE2d 478) (1999). Trial
counsel's failure to seek medication and treatment for their client
before trial was deficient performance. See Strickland, 466 U. S. at
(2) Failure to obtain the Pierce County Jail
records. The habeas court found that trial counsel was deficient in
failing to obtain Taylor's records from the Pierce County Jail which
would have refuted the testimony of State witnesses and would have
supported the credibility of Taylor's mental illness. With regard to
the key point of contention at the trials, whether Taylor was
mentally ill or a malingerer, Taylor's behavior in jail after the
homicide and leading up to the trials was important evidence. Dr.
Fisher had warned trial counsel of this and that jailers were bound
to testify that Taylor had seemed normal in jail. Trial counsel was
also aware that Taylor was having mental problems in jail from
Taylor's letter to Futch in March 1989. But they made no effort to
obtain the jail records.
As predicted by Dr. Fisher, two jailers testified
at the competency trial that Taylor exhibited no unusual behavior in
jail and that he interacted well with other inmates by playing
basketball and chess. One of the jailers admitted that he took
Taylor for mental health treatment once, presumably the visit to see
Dr. Sharma at the Satilla Mental Health Clinic in February 1989, but
this information was not followed up with by trial counsel. Dr.
D'Alessandro then testified that he was unaware of any mental health
problems experienced by Taylor while in jail. Similar testimony was
presented by the State in the criminal trial. Dr. Martin, the jail
doctor, testified that he observed no behavior by Taylor out of the
ordinary and that he saw Taylor about a dozen times for only such
ailments as teeth and sinus problems. He stated that he had never
been asked by anyone to evaluate Taylor for a psychological problem.
He could not remember if he or any other doctor had prescribed
psychotropic drugs for Taylor while in jail. The picture presented
by State witnesses was that Taylor was an average inmate who did not
display any symptoms of mental illness.
The Pierce County Jail records later obtained by
habeas counsel show a different picture. Contrary to the testimony
of the jailers and Dr. Martin, the records show repeated complaints
by Taylor of headaches, stomachaches, uncontrollable crying and
shaking, suicidal ideation, difficulty sleeping, bad dreams, "abnormal
feelings," and "emotional stress disorder." The records show that
Dr. Martin noted that Taylor was depressed and that he prescribed
anti-depressant drugs for him. Although he could not recall at
Taylor's criminal trial whether he had prescribed psychotropic drugs,
the jail records show that in 1989 Dr. Martin personally increased
Taylor's dosage of Mellaril, a psychotropic drug, and that Taylor
was treated with Haldol shortly after his arrest.
In jail, Taylor repeatedly requested mental
health treatment and Dr. Martin personally made several notations
about contacting a mental health facility regarding Taylor, but Dr.
Martin made no mention of these requests at Taylor's criminal trial
and denied ever being asked to evaluate Taylor for a psychological
problem. Dr. Martin testified on habeas corpus that the sheriff
decided whether an inmate was transported for mental health
treatment but, at the competency trial, the sheriff did not mention
Taylor's numerous requests for mental health treatment. In fact, the
sheriff testified that Taylor made no unusual complaints. The jail
records further show that Taylor cut his wrist in an apparent
suicide attempt in April 1989, and that Dr. Martin treated the wound
and advised the jailer "to keep [a] close check on [patient]." On
one request for medical care form, Taylor wrote to Dr. Martin, "I
know I'm going to suffer. I'm experiencing fears that trouble me
often. . . . I only know I must stay in pain."
The habeas court found factually that trial
counsel "were on notice from their expert that the Petitioner's
behavior while incarcerated was likely to be an issue" and that the
"jail records could have been obtained with reasonable diligence."
The habeas court also found that Taylor's letter to Futch in March
1989 should have put trial counsel on notice that he was having
mental problems in jail. With regard to investigating a case, an
attorney is not ineffective for failing to follow every evidentiary
lead; instead, the "adequacy of the scope of an attorney's
investigation is to be judged by the standard of reasonableness."
Jefferson v. Zant, 263 Ga. 316, 319 (431
SE2d 110) (1993), quoting Bush v. Singletary, 988 F2d 1082,
1091 (11th Cir. 1993). The failure to conduct a reasonable
investigation may constitute deficient performance. See Curry v.
Zant, 258 Ga. 527, 530 (371
SE2d 647) (1988). We agree with the habeas court that the
failure to obtain the Pierce County Jail records, under these
circumstances, was not reasonable. Trial counsel were warned before
the trials that the State would claim that Taylor's behavior in jail
was normal, but they failed to obtain records that were readily
available that would refute this claim. Moreover, they were on
notice from Taylor's March 1989 letter to Futch and from their own
observations of their client that he was exhibiting symptoms of
mental illness while in jail. We conclude that the habeas court did
not err by finding that trial counsel's failure to obtain the jail
records constituted deficient performance. See Curry, supra;
The habeas court found that there was a
reasonable probability that the outcome of Taylor's criminal trial
would have been different had trial counsel "performed competently
and obtained a medical evaluation and medication for Petitioner."
See Strickland, 466 U. S. at 694; Smith, 253 Ga. at 783 (1). The
habeas court also found a reasonable probability that the outcome of
Taylor's criminal trial would have been different if trial counsel
had performed competently and obtained the Pierce County Jail
records which would have supported Taylor's claim of mental illness
and refuted the claims of State witnesses that Taylor behaved
normally in jail. See id. We agree. The key point of contention at
Taylor's trials was whether he was a paranoid schizophrenic or a
malingerer. The two main arguments advanced by the State to convince
the jury that Taylor was not mentally ill was that Dr. D'Alessandro
had tested Taylor and found no mental illness while the defense had
not tested Taylor, 4 and that
Taylor had behaved normally in jail. Trial counsel were aware that
the State would make these arguments and their failure to act
allowed the State to present its supporting evidence with little or
no challenge. Under these circumstances, we conclude that the habeas
court did not err by finding actual prejudice. Therefore, we affirm
the habeas court's finding of ineffective assistance of trial
counsel and its vacation of Taylor's conviction and death sentence.
Troutman Sanders, Robert P. Edwards, Jr., for
1 There is
no evidence in either the habeas or trial records that Taylor
was on medication when the homicide occurred.
2 Dr. Fisher
testified at both trials that he could not prescribe medication for
Taylor because he did not have a medical degree.
3 The jury did
learn about the Haldol prescription because Dr. Sharma testified
that she prescribed Haldol for Taylor in February 1989. There is no
record of Taylor receiving Haldol or Mellaril in jail after March
4 It can be
argued that Dr. Fisher, if able to adequately test Taylor, might not
have ultimately diagnosed him as a paranoid schizophrenic or as
suffering from another mental illness. However, in addition to Dr.
Eaton, Dr. Sharma and the other mental health professionals who
found that Taylor was suffering from paranoia and schizophrenia
before the homicide, we note that after Taylor arrived at the
Georgia Diagnostic and Classification Center under a death sentence
he was diagnosed by the prison psychiatrist as a paranoid
schizophrenic and treated with anti-psychotic medication.
Thurbert E. Baker, Attorney General, Susan V.
Boleyn, Senior Assistant Attorney General, Patricia B. Burton,
Assistant Attorney General, for appellant.
DECIDED OCTOBER 30, 2000.
Keith Bryan Taylor