CALDWELL, WARDEN v. EDENFIELD And Vice Versa ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 29, 2023
S23A0260, S23X0261. CALDWELL v. EDENFIELD; and vice
versa.
BETHEL, Justice.
In 2009, a jury convicted David Edenfield for the 2007 sexual
assault and murder of six-year-old Christopher Barrios, and the jury
imposed a death sentence for the murder. Lead trial counsel, joined
by other attorneys, represented Edenfield on direct appeal, and, in
June of 2013, this Court affirmed Edenfield’s convictions and
sentences on direct appeal. See Edenfield v. State, 293 Ga. 370 (744
SE2d 738) (2013), disapproved on unrelated grounds by Willis v.
State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018).
Edenfield subsequently filed a petition for a writ of habeas
corpus on December 17, 2014, which he amended on February 12,
2018. In his petition, he asserted that he was ineligible for the death
penalty because he is intellectually disabled and that trial counsel
provided constitutionally ineffective assistance during his trial in
several ways, including by failing to present evidence of Edenfield’s
alleged intellectual disability in the sentencing phase as mitigating
evidence. He also contended that appellate counsel had provided
ineffective assistance in several ways. The habeas court held an
evidentiary hearing on the petition on November 18 to 22, 2019. In
a final order entered on August 29, 2022, the habeas court denied
relief on all claims except for the ineffective assistance of trial
counsel claim concerning counsel’s presentation of evidence of
Edenfield’s alleged intellectual disability as mitigating evidence in
the sentencing phase. Based on that claim, the habeas court vacated
Edenfield’s death sentence.
The Warden has appealed in Case No. S23A0260, and
Edenfield has cross-appealed in Case No. S23X0261. In the
Warden’s appeal, we reverse the habeas court’s decision to vacate
Edenfield’s death sentence. In Edenfield’s cross-appeal, we affirm
in part; however, as explained in Division II (C) below, we conclude
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as to Edenfield’s claim regarding trial counsel’s alleged deficiency
concerning certain allegedly mitigating circumstances that
additional findings of fact and conclusions of law are required, and
we therefore remand Edenfield’s case to the habeas court for further
proceedings consistent with this opinion.
I. Factual Background
Although we set forth extensive additional evidence below
regarding Edenfield’s intellectual functioning and other issues, we
begin with a brief summary of the facts of his case. The evidence at
trial showed that Edenfield’s intellectually disabled son, George
Edenfield, lured a six-year-old boy into his room and then
penetrated the child orally and anally while Edenfield held the child
down, attempted to penetrate the child anally, and rubbed his penis
against the child and ejaculated on him. As George Edenfield then
began to strangle the child after the child threatened to tell his
family about the assault, Edenfield placed his hands over George’s
hands to see what it would feel like to participate in a murder.
Edenfield’s wife, Peggy Edenfield, masturbated as she watched the
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attack. Edenfield’s intellectually disabled daughter, Minnie
Edenfield, was not involved in the crimes.
II. Ineffective Assistance of Trial Counsel Claims
An ineffective assistance of trial counsel claim requires a
habeas petitioner to show that his or her trial counsel rendered
constitutionally deficient performance and that actual prejudice of
constitutional proportions resulted. See Strickland v. Washington,
466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith
v. Francis, 253 Ga. 782, 783-784 (1) (325 SE2d 362) (1985). To show
actual prejudice from any alleged deficiency or combination of
deficiencies, a habeas petitioner must show 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) (citation omitted). In reviewing a lower
court’s decision on such a claim, we accept the court’s findings of fact
unless clearly erroneous, but we apply the law to the facts de novo.
Strickland, 466 U. S. at 698 (IV); Head v. Carr, 273 Ga. 613, 616 (4)
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(544 SE2d 409) (2001). The question of prejudice in the context of
the sentencing phase of a death penalty trial involves this Court’s
determining, and doing so de novo, whether there is a reasonable
probability of a different outcome, which in the context of the
sentencing phase means whether “‘there is a reasonable probability
that at least one juror would have struck a different balance’ in his
or her final vote regarding sentencing following extensive
deliberation among the jurors.” Chatman v. Walker, 297 Ga. 191,
205 (II) (C) (773 SE2d 192) (2015) (quoting Wiggins v. Smith, 539
U. S. 510, 537 (III) (123 SCt 2527, 156 LE2d 471) (2003)).
An ineffective assistance of trial counsel claim must be
considered with a view to the impact of any deficiencies in trial
counsel’s conduct on the trial’s outcome as a whole, and thus our
discussion below addresses each of the individual claims of
ineffective assistance in the appeal and the cross-appeal while
always keeping in mind how the individual claims might relate to
one another or build on one another. See State v. Lane, 308 Ga. 10,
15-16 (1) (838 SE2d 808) (2020) (“The United States Supreme Court
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has told us explicitly that we must consider prejudice collectively in
the context of ineffective assistance of counsel and Brady[ 1]
prosecutorial misconduct claims.”).
Upon a careful review of the trial and habeas records, we
conclude that counsel did not perform deficiently in several respects
and that, even assuming that trial counsel performed deficiently in
the ways indicated in the discussion below, the absence of their
deficiencies in this case would not in reasonable probability have led
to a different outcome of either phase of Edenfield’s trial. See
Strickland, 466 U. S. at 697 (IV) (noting that a court need not
address counsel’s performance if an ineffective assistance claim can
be denied based on a lack of prejudice alone); Lajara v. State, 263
Ga. 438, 440-441 (3) (435 SE2d 600) (1993) (same). See also Ford v.
Tate, 307 Ga. 383, 406 (II) (C) (1) (835 SE2d 198) (2019). However,
as discussed below in subdivision C, we conclude that the habeas
court’s final order fails to provide adequate findings of fact and
conclusions of law to allow us to resolve some of Edenfield’s claims
1 Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).
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of ineffective assistance of trial counsel related to several categories
of allegedly mitigating evidence, and we remand the case for
consideration of those claims.
A. Proving Intellectual Deficits in the Sentencing Phase
The habeas court concluded that Edenfield’s trial counsel
rendered deficient performance in preparing and presenting
evidence of Edenfield’s intellectual deficiencies and that prejudice to
his defense of constitutional proportions resulted from counsel’s
deficiencies as to the jury’s sentencing choice. Below, we briefly
discuss trial counsel’s preparation for trial and explain our decision
to assume that trial counsel performed deficiently under
constitutional standards for the purpose of our overall analysis of
this claim. Following that, we compare the evidence regarding
Edenfield’s intellectual functioning that was actually presented at
trial with the evidence that Edenfield has presented in the habeas
court and explain why we conclude that consideration of Edenfield’s
new evidence regarding his intellectual functioning would not in
reasonable probability have caused the jury to impose a sentence
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less than death.
1. Assumption that Counsel Performed Deficiently
From our review of the trial and habeas records, we have a
fairly clear view of how trial counsel, particularly lead counsel
James Yancey, conducted themselves. We know that counsel hired
an investigator and a mitigation specialist. 2 And we know that the
mitigation specialist prepared a written report, which must have
been in trial counsel’s possession at the time of the trial, given the
fact that the report was disclosed by counsel to a psychologist who
testified for the State. This mitigation report, along with mitigation
witness interview summaries and a mitigation timeline, appears
now in the habeas record, and it summarizes, among other things,
what some of Edenfield’s family members and other associates
reported to the mitigation specialist, and it also summarizes
Edenfield’s school records, including his scores on various IQ and
2 The mitigation specialist, Janann McInnis, testified at the habeas
hearing that she had previously worked on 50 to 60 death penalty trials and
on 50 to 60 death penalty habeas cases. We do note also, though, that she was
incapacitated for some time shortly before Edenfield’s trial.
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other tests.
We also learn from the record that Yancey had a highly
strained relationship with the trial court in the pretrial period of
this case. As happened in other death penalty cases around that
time, funding for criminal defense efforts was sometimes long-
delayed, and Yancey complained loudly and often about the matter.
The habeas record also reveals some communications between
Yancey and several potential expert witnesses. The record shows
that Yancey succeeded in obtaining an evaluation of Edenfield by
Dr. Daniel Grant, a psychologist; however, Dr. Grant withdrew from
the case once he realized that he had previously examined Edenfield,
his wife, and his children in 1986 in connection with a Department
of Family and Children Services (“DFCS”) investigation into claims
by the children that both Edenfield and his wife had been “fondling
them, abusing them and having sexual relations with them.”
Yancey then communicated with Dr. Jane Weilenman, also a
psychologist; however, Dr. Weilenman also withdrew from the case,
apparently due to Yancey’s failure to communicate properly with the
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trial court about transporting Edenfield to the county jail in
Savannah for her to evaluate him. Finally, about a month before
the guilt/innocence phase began, Yancey received a recommendation
for and hired Dr. James Stark, who testified at trial. However, Dr.
Stark contended in his habeas testimony that he was never given a
response to his pretrial request to Yancey for additional information
about Edenfield.
In light of the habeas court’s findings regarding trial counsel’s
deficient performance and the fact that the record is less clear on the
question of the reasonableness of trial counsel’s pretrial conduct 3
3 It is worth noting that were we to conduct a full analysis of the
reasonableness of trial counsel’s conduct in preparation for trial we would be
required to consider the fact that Georgia law continues to place the burden on
a criminal defendant to prove intellectual disability beyond a reasonable doubt
in order to gain a full exemption from the death penalty in the guilt/innocence
phase. See OCGA § 17-7-131 (c) (3), (j) (providing for a life sentence for any
defendant who is convicted but can prove his or her intellectual disability
beyond a reasonable doubt in the guilt/innocence phase of his or her death
penalty trial); OCGA § 17-7-131 (a) (2) (as amended in 2017 to replace the term
“mentally retarded” with the term “intellectual disability” and to renumber
subsections but otherwise without making any change to the relevant
definition). That burden might significantly inform the scope of reasonable
trial strategies and decisions for the guilt/innocence phase when representing
defendants, like Edenfield, with assessed intellectual capacity at or near the
borderline of a diagnosis of disability. Meanwhile, a different strategic
calculation would apply in deciding whether, despite the burden of proof on
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with regard to the issue of Edenfield’s intellectual functioning than
it is regarding the impact of any deficiencies in that conduct, we
assume in our discussion below that trial counsel performed
deficiently in preparing and presenting evidence regarding
Edenfield’s intellectual functioning.
2. Prejudice Suffered in the Sentencing Phase Regarding
Intellectual Functioning
In weighing the prejudice to Edenfield in the sentencing phase
of his trial, we compare the evidence in that original trial with the
evidence presented in Edenfield’s habeas proceedings. Below is first
a summary of the relevant evidence presented at Edenfield’s trial,
then a summary of the relevant evidence presented in Edenfield’s
habeas proceedings, and then finally an analysis of whether there is
a reasonable probability that Edenfield’s new evidence would have
changed his sentencing phase verdict if it had been presented at his
original trial. See Smith, 253 Ga. at 783 (1).
this issue during the guilt/innocence phase, presentation of evidence of the
defendant’s intellectual challenges at some point during the trial might
nevertheless have strategic value as a means of gaining sympathy with the
jury in the sentencing phase.
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a. Evidence Regarding Intellectual Functioning
Actually Presented at Trial
Our summary here of the evidence presented at trial related to
Edenfield’s sentencing would be incomplete without first noting that
the jury had already heard perhaps the most influential piece of
evidence regarding Edenfield’s intellectual abilities as part of the
State’s proof of his guilt, which was his video-recorded interviews
with investigators. In these interviews, Edenfield carried on
lengthy conversations about the crimes, offering plausible
explanations for how he was not involved and refusing to submit to
a polygraph examination. He spoke with some mumbling and the
use of idioms and often at a fast pace, but he appeared at all times
to fully understand what was being discussed, and his responses to
the investigators were cogent. 4 The interviews with investigators
4 Although we have reviewed these video-recorded interviews again as
part of this appeal, we note that this Court’s members in 2013 shared a similar
assessment of Edenfield’s intellectual capacity displayed in the interviews,
stating on direct appeal: “But our review of the recordings of his statements
reveals that he had adequate capacity to understand the context of the
assurances [given to him by investigators] and that he did, in fact, understand
that context.” Edenfield, 293 Ga. at 375 (2) n.7.
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would not suggest the presence of an intellectual disability to a
layperson.
Dr. Stark testified in the sentencing phase of trial that he had
examined Edenfield on two occasions “to see what his mental
functioning was, to look at competency issues, criminal
responsibility issues and in general to assess his mental state.” He
explained: “We did clinical interviewing, we did observations, I
looked at several CDs or DVDs of interviews, investigative
interviews. I’ve looked at lots of materials concerning history, work
history, school history.” Dr. Stark also explained that he gave
multiple psychological tests over the course of 8 hours, including the
Minnesota Multiphasic Personality Inventory (“MMPI”), the Slosson
Intelligence Test, the Wide Range Achievement Test, a mental
status test, and the Rorschach test. He testified that Edenfield’s
school records showed an IQ in the 70s, that Edenfield tested with
an estimated IQ of 83 in Dr. Stark’s use of the Slosson test, and that
Edenfield’s IQ was “probably in the 80s, which is low average.” Dr.
Stark explained that Edenfield was “reading at a fifth grade level,
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spelling at a fifth grade level and solving math at a second grade
level.”
Dr. Stark explained that he had given “the newest version of
the MMPI” where “the computer [wa]s reading the questions out
loud to” Edenfield while he looked at the questions. He then testified
regarding the MMPI scores:
He is out of the normal range on scales measuring
paranoia and schizophrenia. If I drew a grap[h] of these
scales you’d see that the highest points are in paranoia
and schizophrenia. No signs of alcohol or drug problems.
No signs of self pity or self blame. But a lot of signs of
social introversion, quietness unto himself and signs of
notions of persecution and grandeur and ideas of
reference and suspicion, fears that others are talking
about him and feeling that he’s got a bad lot in life. So
we’re getting multiple signs of paranoid schizophrenia.
On the other scales measuring bizarreness, he is way, way
up there, about the ninety-ninth percentile. And so he’s
checking some items that appear incredibly bizarre. He
has low self esteem, social discomfort, multiple fears.
He then explained these particular findings a bit further.
Dr. Stark next explained that Edenfield “had not [had a] very
productive work history or school history,” that he had “kind of
plod[ded] along,” that he “may have been the wage earner in the
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family,” and that he had “a boring kind of life style” but “had a job.”
Dr. Stark described Edenfield’s long tenure both at civilian jobs and
in the military as “demonstrating that he c[ould] have stability,” and
he noted that Edenfield had been with his wife for “thirty, forty
years” and “seemed to have some kind of commitment to [his] family
even though they appeared quite disturbed.”
Dr. Stark explained that responses on the Rorschach test “are
hard to fake and hard to control” and that Edenfield’s responses
showed no signs of malingering, showed signs of “[i]rrationality,”
showed “poor contact with reality, that there may [have been]
feelings of split – like with schizophrenia,” and showed that
Edenfield’s symptoms might not be obvious to an observer but were
“just below the surface.” He also explained that Edenfield’s
drawings of himself with his family suggested that “he s[aw] Peggy[,
Edenfield’s wife,] as dominant and George as somewhat stronger
than himself.”
Dr. Stark’s recommendation for treatment of Edenfield
included:
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[R]eduction in conflicts, reduction of pressures, reduction
of stresses, some work on sexual kind of problems within
that whole household. Reducing the general trauma,
we’re getting signs of post traumatic stress. I have the
impression that the family is very traumatized probably
about a whole bunch of things. Reduction of that quote,
“craziness,” end of quote, in his environment would help
a great deal. And stabilization of the family and
continued stability of work and appropriate kind of
psychotropic medication.
Finally, Dr. Stark explained that he had reviewed the report of
the State’s psychologist, that the report was based on merely a short
interview and no testing, and that it did not identify any psychosis
like he had himself identified by obtaining “much more data.”
Maggie Carroll, Edenfield’s older sister, testified that
Edenfield had been a normal child who was never disrespectful to
his parents, was mentally “slow,” did not have access to special
education, suffered a head injury as a child and never received
treatment because of the family’s poverty, was a good father and
husband who cared for his family, had two children who were both
mentally “slow,” took care of his mother with whom he was very
close, worked every day that he could, went to church, had never
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been in trouble, and was a good person who did not deserve the death
penalty.
Testimony from Carson Shattuck, who had met Edenfield 25
years earlier in the National Guard, showed that Edenfield had
served in the Army and Army Reserves before enlisting in the
National Guard, worked as a cook in the National Guard, was very
“slow” but was dependable and loyal, obtained a driver’s license for
the first time while in the National Guard, required assistance to do
some of his military paperwork, became a sergeant only because the
military discontinued the grade of specialist, did not become a
sergeant based on merit and would not have reached that grade in
more modern times, earned several medals, was trusted and was
willing to do whatever was asked, would sometimes have to be told
several times to do a task because he was “slow,” usually understood
the command structure but sometimes needed it explained to him,
was always together with his family and appeared to have a good
relationship with them, had children who were also “slow,” and was
someone with whom the crimes seemed inconsistent.
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Testimony from five witnesses showed that, while he was jailed
pretrial, Edenfield was a good inmate who complied with the rules
and never caused problems, respected authority and complied with
directions, did not receive any disciplinary reports, was in protective
custody only for his own safety, was always friendly, adapted well to
incarceration, and was not a threat to other inmates. Edenfield’s
former probation officer testified that Edenfield completed his
unsupervised probation without any incident.
Testimony from Delores Anderson, who had known Edenfield
for 25 years as a relative by marriage and had been his boss for 15
years, showed that Edenfield was a good father, took his son to
baseball games, went to “gospel sings,” took care of his mother, was
a “very good” and “dependable” worker, was responsible for duties
like taking out the trash, cleaning the parking lot, and cooking,
“could pretty much do whatever [she] needed him to do,” did not
work the cash register only because she had a practice of having the
female employees do that job, would work both late and on his days
off when asked, “might [have been] a little slow,” and had to be
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helped in learning tasks sometimes.
Testimony from Florence Dees, who had known Edenfield since
1975, showed that he treated his mother very well, was concerned
about paying bills and caring for his family, and was a good and
respectful neighbor. She stated: “I don’t think [Edenfield] could do
brain surgery or anything but, I mean, he took care of his family as
good as he could. . . .” She explained that Edenfield would come to
her house to pay her mother-in-law what he owed to her on his
mortgage and that they “had to get on [him] a couple of times but
[that] he got pretty good with paying on time.”
The State then presented testimony from its own psychologist,
Dr. Philip Barron. Dr. Barron explained that he had reviewed the
video-recording of Edenfield’s final police interview, his school
records, his work records, Dr. Stark’s report, and a “mitigation
report.” Dr. Barron also interviewed Edenfield, and he consulted
with the health counselor at Edenfield’s jail, who described him as
not “requiring any mental health services or medication” and as
being “the best behaved inmate in the detention center.” He testified
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that he considered Edenfield’s video-recorded interview to be a
“strong indication” that he “demonstrated no signs of any kind of
significant mental illness.” He noted that Dr. Stark’s report stated
that Edenfield was not intellectually disabled, with an IQ
somewhere in the “low 80s,” and he stated that that view “seemed
consistent with Mr. Edenfield’s presentation.” He testified that the
testing results in Edenfield’s school records “were all in the
borderline range” and that one “evaluator who had seen him at some
point . . . obtained average, an average IQ” He opined: “So I thought
low average [IQ] seemed about right.” He noted that it would have
been “highly unusual” for someone to have such a well-documented
record ranging from school to work to the military and yet have no
indication of mental health services if the person indeed “had a
serious mental illness.” Regarding Dr. Stark’s conclusion that
Edenfield suffered from paranoid schizophrenia, Dr. Barron
testified:
That’s totally inconsistent. A person with paranoid
schizophrenia[,] as Dr. Stark said[,] in a florid state,
which seems a fully manifested psychosis, they’re going to
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be exhibiting disorganized speech, prominent
hallucinations, they’re going to be very delusional.
They’re going to have an obvious problem in interacting
with the world in a reality based manner. It’s going to be
quite obvious.
He concluded:
[T]here’s nothing about his mental health picture in
terms of either intelligence or any kind of mental illness
that would get in the way of him being able to
differentiate right from wrong just like any other normal
person.
b. New Evidence Presented in the Habeas Court
As noted, the evidence described above was presented at
Edenfield’s trial. We turn now to the consideration of the evidence
offered in the first instance in the habeas proceeding. At the hearing
in the habeas court, Edenfield presented live and affidavit testimony
from Sharon Phillips, Edenfield’s sister-in-law. She testified that
her sister Peggy, Edenfield’s wife, met Edenfield “during special
education class” and that Peggy “was in special class because she
was mentally challenged, mentally disabled.” When asked if
Edenfield appeared to have a mental disability, she responded:
“Yes, he did. It was obvious. . . . He was always childlike childish,
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slow in the same sense that my sister was, very slow, very – took
everything literally.” She stated that neither Peggy nor Edenfield
had a driver’s license at first and that Edenfield only got one
“probably in his 30s” after being taught to drive by her father over
the span of “a decade and a half” and going “regularly to take the
test.” She recounted that Edenfield would exaggerate when talking
about his duties while serving in Vietnam, even saying outrageous
things like “that he was the helicopter pilot that flew President
Nixon from Hanoi to Washington on a regular basis.” She explained
that her mother did a great deal for Peggy and Edenfield, including
taking them to pay bills, teaching them how to pay bills, teaching
them how to plan what grocery items to shop for, and teaching
Edenfield how to cook, which he did for his family “a lot” once
Edenfield’s mother “moved out and they had the whole house to
themselves.” She testified that her mother was at Edenfield’s house
“every day” doing chores for them, like helping with the children,
painting their house, putting down linoleum flooring in two rooms,
and teaching Peggy to do household chores. She testified that she
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helped Peggy and Edenfield find their new home when the family
was forced to move because of George Edenfield’s sex-offender status
and that she helped them decorate once they moved in. Phillips also
indicated that her brother would sometimes help Peggy and
Edenfield financially and that her brother was present when Peggy
and Edenfield signed the lease for their new home, which she had to
explain to them. She testified that her boyfriend “had to hook up
the washer and dryer” for Peggy and Edenfield and then later had
to set their heater for them when the season changed. On cross-
examination by the Warden, she acknowledged that Edenfield never
received disability benefits from Social Security, “was able to keep a
job,” was in the National Guard for about 20 years, wrote letters to
her from jail (but she described them as “all one sentence, no space
between words”), and read the Bible but did not generally read “[a]s
a hobby.”
Rhonda Carmichael gave both live and affidavit testimony in
the habeas court. She explained that she “first met [Edenfield] in
elementary school.” She described him as being “[d]isruptive” and
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having a hard time focusing and as being “in the lowest” reading
group. She stated that he had a hard time following instructions,
and she explained: “The most things that I remember were going to
lunch getting out of line, not following direction, not resting after
lunch, getting up out of your seat when you weren’t supposed to.”
She stated, “He was pretty ostracized by the other children,”
probably because he was “different,” had trouble following
directions, and had “extremely poor hygiene.” She explained that
she was the human resources director at a hospital where Edenfield
later worked as “a houseman,” which she described as “the lowest
job on the totem pole.” She indicated that his hygiene remained poor
as an adult. She stated, “Because I’ve always known David to be
mentally challenged, it is my opinion that he would have never
moved up the ranks at the hospital.” Finally, she explained that he
was fired from his job at the hospital when he was absent without
explanation after he was incarcerated on a charge she did not
specify.
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Phoebe Brunswick testified that Edenfield came to work at
Southeast Georgia Medical Center “in ’92 to ’93.” She explained that
she worked at the hospital as an “[e]nvironmental service
supervisor” and was Edenfield’s boss. She stated that Edenfield was
responsible for things like collecting trash, mopping, and stripping
and refinishing floors in his assigned area. She explained that he
“was slower as far as going to do [a] task and getting it done,” that
he sometimes needed reminders to do things like putting out the
sign for wet floors, and that he required more supervision than her
other employees. She acknowledged that her reviews of him in his
employment record mostly indicated “good,” with just one entry in
his record indicating “very good,” and she explained that there was
a higher category for “excellent” and described the category of “good”
as meaning that “they completed their work, didn’t have any real
issues with them.” Finally, she stated: “When I first met him . . . I
could tell that – I mean, I’m not a genius, but I could just look and
see there was a difference in him. Like I said, eye contact. He just
got his paper [with work assignments] and went up to the floor, you
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know.”
Mary Gail Tanner gave live and affidavit testimony indicating
that she had worked with Edenfield at Burger King and then at
Wendy’s, starting when she was 15 years old, and that she
“considered him like a grandfather.” She testified: “Even back then,
it was obvious to me that [Edenfield] was very slow and had a mental
disability. . . . I’ve always thought of him as a child in a man’s body.”
Regarding his work duties, she stated: “He was like the porter,
maintenance, when you do, like the maintenance part of the job.”
She described the maintenance portion of his job as involving things
“such as changing the light bulbs.” She explained that she or
another employee “would stay on top of him and make sure he had
enough” hamburgers being made when he worked on the broiler
during the lunch rush and that, when he was cleaning, she “just
stayed on top of him and checked behind him when he had done it
and ma[de] sure it was in a timely fashion.” Tanner explained that
Edenfield was sometimes sent to the nearby Walmart to buy
supplies but that he “needed clear instructions” beforehand. She
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claimed that he was unable to work the register because it was “too
multitasking” and that he could not make salads because it
“required something where you had to measure individually.” On
cross-examination by the Warden regarding Anderson’s trial
testimony about why Edenfield had not worked the cash register,
Tanner admitted that such decisions were up to Anderson.
Mark Newman testified both live and by affidavit. He
explained that he had worked for DFCS and had “investigated at
least two cases concerning David and Peggy Edenfield and the
children, George and Minnie,” with the first “related to child neglect”
and the second “related to sexual abuse of the children and sexual
involvement of family members.” He explained that he had been
informed by school professionals that Edenfield and his wife were
“mentally challenged.” He stated:
All of the Edenfields – David, Peggy, Minnie and George
– were very mentally impaired. Minnie didn’t have the
cognitive ability to understand that she needed to put
clothes on before she went outside. George wasn’t much
better. . . . David had very serious mental impairments,
but unlike others in his family, he was employable.
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He stated that Edenfield and Peggy appeared not “to recognize that
the behaviors of the children or themselves were causing harm or
potential harm” and appeared “unable to protect the children from
others in the community that may prey upon them.” He explained
that his investigation encompassed accusations about Minnie’s
being “victimized sexually by her mother, brother, cousin, and
neighbor,” and he testified: “There were allegations that David may
have also been involved, but I was never – I never found evidence to
support that. . . .” He added:
But the Edenfields did not seem to have the same
morality as others, that they were more – functioning on
a more – and I hate to say primitive, but more on a
physiological level where if something was pleasurable
and didn’t hurt, it didn’t matter.
On cross-examination by the Warden, he explained, “[O]ne of my
subordinates had a third investigation that they did where actually
[Edenfield] was named as a perpetrator in that one as well.”
Jan Vogelsang gave lengthy live and deposition testimony in
the habeas court based on her review of records and based on
interviews of Edenfield and “17 family and non-family members in
28
person.” She was a clinical social worker who conducted a
“psychosocial assessment” of Edenfield with “a focus toward any
behaviors, any signs, any symptoms that would have been consistent
with a diagnosis of intellectual disabilities.” She testified that she
found Edenfield to be “different,” that he has “language difficulties,”
that he seemed to have an “impaired” understanding of “concepts
having to do with relationships,” that he struggled with the “flow of
conversation,” and that he would break into unintelligible phrases
when talking about religion. She summarized his school records,
including the fact that he was retained in the first grade, struggled
in the second grade, fell behind in the third grade, was socially
promoted from the fourth to the fifth grade, repeated the fifth grade,
was socially promoted to the sixth grade, “was put in the eighth
grade on condition and had a social promotion to the ninth grade,”
repeated the tenth grade, and then entered a newly-created special
education program in the eleventh grade and turned 20 years old in
that grade. She reported that, although she was qualified to do so,
she was not asked to render a diagnosis regarding the level of
29
Edenfield’s mental functioning. Nevertheless, she summed up her
opinions on the case this way:
The conclusions that I came to in Mr. Edenfield’s case
were that his life history is consistent with – and can be
characterized by behaviors that are consistent with
intellectual disabilities, and that the lack of intervention
in this case, both with him and with his family, had a
devastating effect on the family in that they never
received – well, Mr. Edenfield never received formal
specialized services from the community on a long-term
or meaningful basis that could have made a difference.
The vast remainder of her testimony was essentially a recapping of
and commentary on lay testimony and notations in various records,
matters that we discuss elsewhere more directly. 5
Dr. Kristin Fiano, a neuropsychologist, gave live and
deposition testimony in the habeas court. She testified that, based
on her review of the records and her evaluation of Edenfield, she
concluded that “he meets the criteria for mild intellectual disability.”
She reported: “He talked about paying rent and utilities, doing
5 Regarding testimony like that of Vogelsang, we remind the parties in
such cases that “[a]n expert must not be permitted to serve merely as a conduit
for hearsay.” Whatley v. Terry, 284 Ga. 555, 565 (V) (A) (668 SE2d 651) (2008)
(emphasis in original).
30
grocery shopping, clothes shopping and reported that he was able to
drive.” Nevertheless, she discounted this self-report: “Well, I felt
like it was likely that he did do some of those things at a basic level.
Based on the record, it seemed that he was also receiving a fair
amount of assistance in performing those tasks.” She stated:
[D]uring my interview with him and during the
evaluation process itself, what struck me immediately
and throughout the process was that his speech style
tends to be very concrete, he uses limited vocabulary,
tends to repeat certain phrases over and over, he tends to
be tangential, and I needed to direct him quite a bit.
Dr. Fiano explained that she administered the “WAIS-IV,
which is the Wechsler Adult Intelligence Scale, Fourth Edition,”
that Edenfield’s IQ was “71, which is at the 3rd percentile,” and that,
based on the Standard Error of Measurement, there was a 95
percent chance that his IQ fell somewhere from “68 to 76.” She also
administered the Wide Range Achievement Test, testing Edenfield
at the fifth grade level in reading, fourth grade in spelling, and third
grade in mathematics. She stated, “The DSM [Diagnostic and
Statistical Manual] even talks about mild ID [intellectual disability]
31
at a fifth or sixth grade level.” She explained that she had
interviewed five people regarding Edenfield’s adaptive behaviors
and that she found him to have deficits in each of the three
categories of “Conceptual, Social and Practical.” She also
administered tests about Edenfield to four persons, with Shattuck’s
test, depending on how “some ambiguity” was resolved, showing “a
score that was at the 2nd or 4th percentile,” with Chaney’s test
showing “a score that was at the 10th percentile,” with Phillips’s test
showing “an overall score that was 71, which was at the 3rd
percentile,” and with Anderson’s test showing a score of 71 without
the work section included and 78 with it included. On another test,
the Vineland, Phillips and Anderson both scored Edenfield in the
“2nd percentile,” while Carroll scored him “at the 30th percentile.”
Dr. Fiano discounted Carroll’s score, however, claiming that some of
her responses “would directly contradict each other” and that
“sometimes the basis for her opinions seemed inconsistent with the
record to be spurious information.” Dr. Fiano administered the
Adaptive Behavior Assessment System (“ABAS”) test to Edenfield,
32
and she testified that his self-score “was also in the average range,
96.”
Dr. Fiano noted that the Georgia Department of Human
Resources had administered the Role Functioning Scale to Edenfield
in 1980, and she reported the result: “He was rated marginally
productive, marginally self-sufficient, marginally functioning with
immediate social network and marginally effective interactions.”
From an incident report by the Brunswick Police Department, she
read: “Investigation reveals sexual activity among family members,
including father with children. . . . Entire family is retarded, some
more severely than others.” She also read from a petition for
deprivation that had been filed in the Juvenile Court of Glynn
County: “Both George and Minnie allege that they have been
fondled and sodomized by their father, David Edenfield. . . . These
children are mentally retarded and cannot protect themselves.”
From Edenfield’s military records, Dr. Fiano highlighted “a GT score
of 67,” and she stated: “There is literature to indicate a correlation
between this General Technical Scale and the WAIS. . . .” She also
33
read from Edenfield’s military record:
That after review of this soldier’s records, this soldier
failed cardiovascular screening and has received
marginal NCOERs [evaluations] by this chain of
command. He no longer represents the caliber of
individual needed for the aggressive Georgia National
Guard.
Dr. Fiano noted that Dr. Grant, as part of his involvement
during a DFCS matter, had administered the Peabody Picture
Vocabulary Test to Edenfield and had obtained a score of 100;
however, she added: “It’s not an IQ test. Specifically it is a measure
of receptive language, and language has consistently been one of his
stronger areas on assessment.” She also noted that Dr. Stark,
Edenfield’s expert at trial, had administered “the Slosson
Intelligence Test which is more of a screening measure [that] heavily
emphasizes crystalized knowledge, verbal skills” and that “[h]e
scored in the low average, I believe 83.” Finally, she discussed the
Flynn Effect, which posits that the population performs better on
aging IQ tests over time and that scores may be reduced to
compensate for this effect; however, she also acknowledged that
34
some studies, at least in another country, have shown a more-recent
opposite effect. On cross-examination by the Warden, she
acknowledged from Edenfield’s school records scores of 77 in 1959
and 78 in 1960 on a mental maturity IQ assessment, along with a
score of 69 in 1961 on a Hermon-Nelson IQ assessment.
Dr. Jane Weilenman gave live, deposition, and affidavit
testimony in the habeas court. Dr. Weilenman was the psychologist
whom trial counsel contacted but was unable to use, probably due to
trial counsel’s miscommunication with the trial court, and she
testified based on her post-trial interviews of Edenfield and her
review of his records and the other material gathered by his habeas
counsel. She stated that, in her opinion, Edenfield had “mild ID
[intellectual disability]”; however, she later, when asked directly if
she were making a diagnosis, said: “No.” Regarding Edenfield’s
police interviews, she stated: “[I]t was displayed that he was
suffering – or should I say he was encountering confusion at times,
he needed clarification at times during the interrogation over
something [sic] that were very simple.” Under cross-examination by
35
the Warden, she admitted that she was not doing intellectual
assessments at the time of Edenfield’s trial and that the most she
could have done for trial counsel would have been to suggest that he
hire someone else to do such testing. But she maintained: “But if
someone else had made [a diagnosis of intellectual disability], I could
have concurred with them.”
Dr. Janice Laurence, a psychologist, gave live and affidavit
testimony. She testified that, at the request of the Department of
Defense, she had studied a military program called Project 100,000
and had testified to Congress about it; she also wrote a book on the
subject. She explained that Project 100,000 was a program that
started as a result of a shortage of soldiers for the Vietnam War, and
it brought “low-aptitude people” into the military, particularly the
Army. She testified that she was able to determine from Edenfield’s
Army identification number and from a box checked on a particular
form that he had been drafted as part of Project 100,000. She stated
that persons from the category that Edenfield likely belonged to in
military classification, Category 4, “would be people on the WAIS
36
who would score in the 70’s or maybe low 80’s.” She indicated that
persons below this category were barred by law from being admitted
into the military, even during Project 100,000. She acknowledged
that Edenfield’s National Guard records showed him as being in
Category 3, which is composed of persons more intelligent than
Category 4. However, she dismissed the test score that placed him
in this category on the basis that it was obtained using an “old
version” of the relevant test with answers whose secrecy “could have
been severely compromised” and given by recruiters to test takers.
She also found this more-recent score to be too great of an
improvement from the score she “inferred” that Edenfield had
received when he entered the Army during the war. She disregarded
positive reviews in Edenfield’s military record as being the result of
“grade inflation” and the fact that “he wasn’t given any high-level
jobs to do.” She also downplayed his final rank in the National
Guard of E-5 as being a “Specialist 5” rather than an officer in that
same pay grade, thus making him someone with “no supervisory
responsibility.”
37
Michelle Schwartz gave live and affidavit testimony in the
habeas court. She explained that she was the owner of a company
that offered support services to intellectually disabled persons but
was not qualified to diagnose intellectual disability and had not met
with Edenfield, his family members, or any of the other witnesses
who gave affidavits about his background. Nevertheless, she stated
that she had reviewed “the affidavits and assessments and
additional information” and had reached the opinion “[t]hat his
adaptive skills [we]re commensurate with an individual who has
mild intellectual disabilities.” On cross-examination by the Warden,
she admitted that some of the affidavit testimony contradicted some
of her assumptions in reaching her opinion, including things like the
degree of “natural supports” Edenfield had in his work and living
environments. She also acknowledged the many positive reviews
that Edenfield had received in the military, but she stressed that
the affidavits about his time in the military were “very clear” about
the “natural supports” he had enjoyed there.
38
Joel Davis gave live testimony explaining that he “was a social
worker and mitigation specialist that assisted with [Edenfield’s]
case” at the time of his trial. He explained that he was assigned by
the Capital Defender’s Office to travel “to Brunswick to work on this
case 48 hours before trial” and that he knew nothing at that point
about the case. He testified that “information was limited” for him
about the case because, although he was “unaware at that time,”
there were some sort of “existing conflicts” involving the Capital
Defender’s Office 6 and that “they were trying to basically build a
wall between [him] and the Capital Defender’s Office.” He stated
that, once he arrived in Brunswick, he received assignments from
the investigator working on the case, Shannon Hayes, including
“finding witnesses, subpoenaing witnesses, people that had not been
interviewed, things of that nature.” He was privy to the “mitigation
report” that had been prepared by Janann McInnis, but he thought
that “it wasn’t as in depth as what [he] would normally prepare.”
6 This potential conflict appears to involve the fact that the Capital
Defender’s Office also was representing George Edenfield.
39
However, we note that Davis presented nothing in his habeas
testimony speaking to Edenfield’s actual mental functioning.
Shannon Hayes, “a fact investigator with the Georgia Capital
Defender,” also testified in the habeas court regarding her work on
Edenfield’s case. But she, like Davis, testified only to the process of
trial preparation and added nothing substantive to the evidence
regarding Edenfield’s intellectual functioning.
Dr. Karen Salekin, a psychologist, testified in the habeas court
that she had reviewed the Stanford-Binet IQ test that the Warden’s
expert, Dr. Glen King, had administered to Edenfield. She testified:
“I identified both scoring errors as well as administrative errors.”
She gave specific examples of responses from Edenfield that she
would have scored lower than Dr. King had, such as her giving
Edenfield zero points for defining “lend” as “[g]ive somebody
something like money or something like that.” Based on her
rescoring of as much of Edenfield’s test as was possible given the
test’s format, Dr. Salekin opined that Edenfield would have received
a 78 rather than the 81 as scored by Dr. King. She also criticized
40
the starting point on the test chosen by Dr. King for Edenfield’s
testing, claiming that Dr. King’s starting point might have inflated
Edenfield’s score and stating: “It would have been prudent,
particularly in a capital murder case, when you have – life and death
is at stake here to be much more cautious than beginning at the age
of 18. . . .” Finally, she discussed the Flynn Effect, which is the
inflation of IQ scores on aging tests based on the supposedly
increasing intelligence of the general public, and she stated that her
score of 78 for Edenfield would become a 73 after accounting for the
Flynn Effect. However, she acknowledged during cross-examination
by the Warden that some scientific literature has posited that the
opposite effect has more recently occurred.
James Yancey, lead trial counsel, testified at length both live
and by deposition. But, as his testimony concerned the process of
developing and presenting Edenfield’s defense at trial, it sheds little
light on the question of the prejudicial impact of the alleged
deficiencies committed by Yancey and his co-counsel.
41
Dr. Stark, the psychologist who testified for Edenfield at his
trial, gave additional affidavit and deposition testimony in the
habeas court. He discussed his administration of the Slosson
Intelligence Test, on which Edenfield had scored an 83. He
explained that it was a “brief measure of IQ” rather than “the long
version of IQ testing like the WAIS or the Stanford-Binet,” but he
maintained nevertheless that “[i]t usually correlates well with the
Wechsler [WAIS].” He seemed to stand by his prior diagnosis of
schizophrenia, explaining again that Edenfield’s MMPI test results
were “purely typical of a psychotic kind of condition,” specifically
“paranoid schizophrenia.” Dr. Stark stated that, while he could not
recall when he received them, Edenfield’s school records showed
behavior that “was more typical of somebody who was – was
intellectually disabled.” His affidavit testimony, which he testified
that he had not written but had read, stated more directly: “Based
on the record before me today, I concur with the opinions of Dr.
Kristin Fiano and social worker Janet [sic] Vogelsang that David
Edenfield has [an] intellectual disability.”
42
Delores Anderson, Edenfield’s former boss who, as recounted
above, also testified on Edenfield’s behalf at his trial, gave affidavit
testimony in the habeas court. She stated, “I am no expert on mental
retardation, but I always understood that [Edenfield] was mentally
slow.” She then stated, in some contradiction to her trial testimony:
“For example, I never assigned [Edenfield] to the cash register. [He]
was not capable of handling the register, certainly not quickly.” She
described Edenfield’s duties as including washing pots and pans,
putting up stock, and working the broiler. She stated: “I didn’t
assign [Edenfield] to making sandwiches often because it was a fast
paced position and [he] couldn’t keep up.” She also stated that
Edenfield had poor hygiene and required more supervision than her
other employees. Finally, she stated, relevant to an assessment of
his driving abilities: “He would give me rides to [and] from work if
I asked.”
Josephine Berry gave affidavit testimony that she had worked
for DFCS and had had contact with the Edenfield family “in the late
1980s.” She stated, “All of them were mentally retarded. David,
43
Peggy, and their children, Minnie and George.” She added, though,
“David was the most capable one of the Edenfield family, but he was
still very limited.” She stated that she was involved with two
complaints involving the Edenfield family, “first in 1985 and again
in 1988,” explaining:
Both complaints involved allegations of sexual abuse and
neglect. I don’t recall having contact with the Edenfields
related to the first complaint, which doesn’t name David,
only the second one, which does.
She stated that the Edenfield home had a “bad odor,” that the
housecleaning was poor, and that the children did not have clean
clothes and had head lice. She also stated:
I understood the family’s alleged problems with sexual
boundary issues to stem from their limited mental
capacity. Sexual impulsivity and boundary violations are
common among people with impairments in intellectual
functioning. None of them were able to control their
impulses or understand sexual boundaries like people
who were not impaired.
Ann Brunswick gave affidavit testimony explaining that she
had been Edenfield’s supervisor at a hospital “Environmental
Services Department . . . in 1992 and 1993.” She stated: “[Edenfield]
44
was mentally challenged and slow. It took him longer to do his work
than it did other employees. Once he got the hang of a task he did
fine, but he could be forgetful. You had to remind him what to do
and keep an eye on him.”
Maggie Carroll, Edenfield’s older sister, and Gart Carroll,
Edenfield’s nephew, both gave affidavit testimony, but the only
statements relative to Edenfield’s intellectual functioning regarded
how the Edenfield family had appeared to go “downhill” after
moving to their new home, how Edenfield and his wife Peggy both
were “slow” and their children even “slower than them,” how
Edenfield had a long work history, and how the Edenfield family had
poor hygiene.
Charles Chaney gave affidavit testimony explaining that he
was Edenfield’s “direct supervisor in the Georgia Army National
Guard and ha[d] known him for many years.” He stated:
“[Edenfield] always seemed slow to me. It took him a little longer to
do things than it did other guys under my command.” He stated
that he “never assigned [Edenfield] cooking tasks because he
45
couldn’t handle the job,” that Edenfield “would not have been able
to follow recipes,” that Edenfield “was one of the weakest guys under
[his] supervision from a mental standpoint,” and that Edenfield
“wasn’t a guy [he] could trust to handle many things on his own.”
He stated that Edenfield was good at tasks like “peeling and cutting
potatoes” and making tea and that his “main job in the Guard was
setting up for mealtimes and cleaning up afterwards.” He did state,
however, that Edenfield was assigned “the task of driving a military
vehicle to transport materials” accompanied by “another
Guardsman” to help him load and unload the vehicle. He described
Edenfield’s rank of E-5, which was just below his own rank of E-6,
as being “a courtesy or complimentary rank, commonly handed out
to those who might not have been higher rank material, but who
were otherwise dependable and reliable or hardworking, like
David.” He explained that he gave Edenfield good ratings but that
they “were not always an accurate representation of how he truly
performed.” He stated:
46
My ratings on David’s evaluations were inflated with
regard to his leadership skills, and his ability to provide
effective instruction to his subordinates. I generally gave
him 4s or 5s in these areas, when David did not provide
instruction or direction to anyone, and only had
subordinates in the sense that he outranked other
Guardsmen. David didn’t supervise anyone.
He concluded: “David did complete the tasks assigned to him
efficiently, but again, these were simple tasks. It is true that David
was a dedicated and enthusiastic soldier.”
Zoann Covington testified that she was Edenfield’s fifth grade
teacher. She stated:
He was a special needs student who had to learn how to
get along in a regular class room. He exhibited an odd
behavior that I’ve never forgotten over the years: when
he was upset or didn’t succeed at a task, he would walk
over to the concrete block wall of our classroom and bang
his head against it.
Finally, she stated that she “socially promoted” Edenfield to the
sixth grade.
Florence Dees, who also testified for Edenfield at his trial, gave
affidavit testimony in the habeas court. She stated that she had
regular contact with Edenfield because her mother-in-law owned the
47
house he lived in and Edenfield would come with his wife and
children to pay the rent in cash. She stated: “Both Peggy and David
were mentally limited and immature. Peggy was very limited, even
more than David.” She stated that Edenfield and his wife relied a
great deal on his mother “to help them with basic tasks like cooking,
paying bills, shopping, and keeping the house clean.” She added:
“David was able to hold down a job but he also needed [his mother’s]
structure and support. David depended on [his mother] to reason
things out for him.”
Neal Dees, the husband of Florence Dees, gave affidavit
testimony in the habeas court. He stated, “David was mentally
retarded in my opinion.” But he added, “Peggy was much slower
than David, and their children, Minnie and George were really
retarded, too.” He then added further: “[Peggy] was worse off than
David mentally, so David had to stay on her to get her to do things
around the house. I remember hearing David holler at Minnie and
George to take a bath.” He stated that Edenfield “was naïve and
gullible” and “didn’t really have the wherewithal to do stuff on his
48
own” but “had to be instructed and followed up with.” He added: “I
was angry about the murder and it mystified and angered me to
think that David might have been a part of it.”
Chester DePratter, Peggy Edenfield’s brother, also gave
affidavit testimony. He stated, “Peggy has always been special and
different, meaning she has always been mentally impaired, and
David is very similar to her in this way.” He added, “I have always
thought that David was also mentally retarded.” He stated that his
parents “helped David and Peggy pay their rent on a regular basis,”
“put a new roof on their home[,] and helped them with car
payments.” He stated that Edenfield’s mother “helped them, too.”
Dr. Daniel Grant, who was the expert who withdrew from
working on Edenfield’s case once he realized that he had previously
evaluated the Edenfield family for DFCS, gave affidavit and
deposition testimony in the habeas court. He explained that, as part
of that previous DFCS case, he had administered the Peabody
Picture Vocabulary Test to Edenfield and that Edenfield scored 100
on it. He stated:
49
The Peabody is not designed to provide a full and accurate
measure of global intellectual functioning, and in fact it is
only a moderately good predictor of performance on a
comprehensive intelligence test, such as the Wechsler
Adult Intelligence Scale (WAIS).
Although his affidavit did not further address his report for DFCS,
the report is part of the habeas record and showed that, in addition
to the screening score of 100 for Edenfield’s IQ, Dr. Grant tested
Peggy Edenfield’s IQ as 75, George Edenfield’s IQ as 44, and Minnie
Edenfield’s IQ as 41. Regarding Edenfield, the report stated, “He is
also accused of molesting both children and having penile
penetration with Minnie.” It also stated, revealing the relative
condition of Edenfield’s intellectual function as compared to his
wife’s functioning: “It is also important to note that Mr. Edenfield
has to go grocery shopping with his wife because she is unable to do
this task by herself. He also cooks three to four suppers during the
week.” The report recounted accusations that Edenfield sexually
abused George, but the report stated that this accusation was not
credible for various reasons. Nevertheless, the report concluded
differently regarding the accusations by Edenfield’s daughter:
50
I feel that Minnie’s description of the sexual molestations,
poor supervision and possible physical abuse are quite
convincing, as was her explanation using the sexually
explicit dolls. I feel it is quite likely that she has been
molested and feel that she is able to explain this
molestation fairly convincingly in court.
George Randy James also gave affidavit testimony in the
habeas court. He stated that he “dated David Edenfield’s sister in
law, Sharon Phillips, for about 7 years, from about 2002 until about
2009.” He stated about the Edenfield family, “They were all
mentally slow.” He added, “Peggy had the mind of a 6 year old, and
David wasn’t much better.” He stated: “Even though David was
mentally retarded, David was the head of the family. He always
worked.” He explained how he once had to help the Edenfields move
their thermostat setting “from cool to heat” and once “helped them
hook up their washing machine.” Regarding Edenfield and his
mother, he said: “He took care of her the best he could. She was
slow like the rest of them though. She had really bad hygiene.” He
stated:
The pretrial investigator also has a note saying that I said
David is highly functional, which is misleading. David is
51
only highly functional when you compare him to everyone
else. I’m no expert, but to me, David is mentally retarded,
too, just not as bad as the others. You could send David
to the store to get something and he’d be able to do it. The
others couldn’t do this. David could drive, and the others
couldn’t. David was the smartest one in his family group,
but that isn’t saying much.
Michael Keach, Edenfield’s nephew, also gave affidavit
testimony. He stated: “He was a good uncle, but he wasn’t too
bright. Really, he acted more like one of the kids than a grownup.”
In support of that statement, he recounted how Edenfield would play
games with him. He described once “riding in a garbage truck that
[Edenfield] drove” and how Edenfield “would have to line the truck
up with the dumpster so he could lift the dumpster and dump it into
the truck.” He added, though, “There wasn’t anything hard about
it, you just had to pull a few levers in the truck.” Finally, he stated:
It was pretty obvious to me that David wasn’t right
mentally. He didn’t comprehend things like most folks.
He was functional, but very limited in intelligence. He
did simple work at Jekyll Island Authority [where the
trash truck was], and I’ve never known him to have jobs
that required a lot of skill.
52
Alan Kittrell gave affidavit testimony explaining that he, like
Edenfield, served in the Army in Vietnam as a “Field Wireman.” He
stated:
Edenfield seemed goofy. He wasn’t the sharpest tool in
the shed. He seemed challenged, and it seemed to me that
he had intellectual problems. He was just so slow. . . .
He was squirrelly and gullible, and easily misled. He was
a strange guy, kind of bizarre.
Kittrell explained the switchboard duties that he and Edenfield both
performed:
There wasn’t anything complicated about operating the
switchboard. . . . When a call came in, a bulb on the board
lit up. The bulb was associated with a specific cord that
retracted from the machine. The caller would tell you who
he wanted to talk to and you would connect the
retractable cord to the hole associated with that person.
If I’m remembering right, there were names written on
the board, so it was easy to know where to plug the cord
in. You’d then crank the wheel on the machine to ring
that person so he’d know to pick up.
Janann McInnis, Edenfield’s pretrial mitigation specialist,
gave affidavit testimony in the habeas court. She stated, “[I]t was
apparent to me during my contact with him that he is impaired.”
She added: “I interviewed several of David’s friends, family
53
members, and co-workers. Their descriptions provided a picture of
David that was consistent with intellectual disability/mental
retardation.” Her remaining testimony related to the pretrial
investigation process and did not speak directly to the question of
Edenfield’s intellectual functioning.
Tom Moree also gave affidavit testimony on Edenfield’s behalf
in the habeas court. He stated that he had been a probation officer
and that Edenfield “was on [his] caseload as a result of his 1994
conviction for the crime of incest.” When he visited the Edenfield
home on a probation visit for George Edenfield, he noted that the
home was not neat, had a bad odor, and had “stale food left out.” He
stated: “[I]t appeared to me that the Edenfields might have had
some mental challenges at some level. It appeared that George
probably had the worst challenges.”
Donald Pittman gave affidavit testimony explaining that he
had worked with Edenfield in the Army National Guard “for about
2 years” in the “Mess Section.” He stated:
54
David was cook by title, but he never cooked. No one
trusted David to cook. He couldn’t follow the recipe cards
to do any actual cooking. He just didn’t have the mental
competence to do this. He made sweet tea and was our
gopher, meaning we sent David to get items we needed,
food and supplies mostly. David’s elevator didn’t go all
the way to the top. He was kind of cuckoo. So was his
wife, Peggy, and his children, Minnie and George.
He explained that “when [he] first met David he didn’t have a
driver’s license” but instead rode a bicycle. He stated that Edenfield
“was socially inappropriate and awkward” and that his “hygiene was
really poor.”
Carson Shattuck, who also testified at Edenfield’s trial, gave
affidavit testimony in the habeas court. He explained that he
assigned Edenfield “to Food Services because it seemed a good fit for
David’s abilities – jobs that were simple to do and that didn’t require
a lot of thought.” He added, “I did not think he was capable of skilled
or complex work.” He stated that Edenfield “was rarely, if ever
assigned cooking tasks” but instead did simpler tasks like peeling
potatoes and washing pots and pans. He stated: “[Edenfield] didn’t
drive when he first came to the Guard, and although it took a while,
55
several guys in the Guard taught him how to drive and he was able
to get his license.” He explained that Edenfield “on more than one
occasion” was assigned to drive a two-and-a-half ton truck 65 miles
to Fort Stewart to get supplies for weekend drills, and that,
“[b]ecause two (2) days of food for roughly 100 men was needed, it
was always a two (2) person job.” Shattuck stated that, despite
records showing that Edenfield had subordinates, Edenfield was
only senior to “the Kitchen Police” and was never seen by him
“providing direction to these guys” or being “in charge of anyone.”
He stated that he thought that Edenfield’s rank of E-5 “was a
complimentary or courtesy rank, i.e., he achieved this rank not
based on ability, but because everyone liked him and he tried so
hard.” He stated further:
[Edenfield] attained noncommissioned officer status, but
[he] was not noncommissioned officer material and was
only classified as such because of the change in ranking
system [to eliminate the grade of specialist]. Everyone
who knew [him] understood that he was not capable of
taking on command responsibilities commensurate with
his rank.
Shattuck stated that he “would often ‘flower up’ or enhance” his
56
evaluations of Edenfield, but that Edenfield “was by no means a
smart soldier in the Guard.”
Albert Sigler, who worked at a group home for intellectually
disabled persons where Edenfield’s intellectually disabled daughter
was eventually placed after Edenfield pleaded guilty to committing
incest with her, gave affidavit testimony in the habeas court. He
stated: “[Edenfield] immediately struck me as intellectually
disabled.” He stated about a letter that Edenfield had written to his
daughter: “I was not able to read [his] handwriting or make sense
of the letter. It looked like a child had written it.”
Carolyn Sills, Edenfield’s cousin, gave affidavit testimony that
stated: “[Edenfield] always seemed different to me, even then. By
‘different’ I mean: something wasn’t right in his mind. I wondered
about some of the stuff he said. The things he said seemed childish
for his age.”
Darlene Waters gave affidavit testimony explaining that she
had been married previously to Edenfield’s brother-in-law. She
stated that Peggy Edenfield’s parents “were concerned that
57
[Edenfield] wouldn’t be able to take care of [Peggy].” She stated that
Edenfield had poor hygiene, that he “had problems with personal
space and boundaries,” and that he would “sometimes brag,
exaggerate his accomplishments, like a child.” Finally, she stated
that Edenfield’s mother would buy groceries for him and his family
at the military store “to guarantee that they had enough food.”
Dr. King, the psychologist who evaluated Edenfield for the
Warden during his habeas proceedings, gave deposition testimony.
He tested Edenfield’s IQ at 72 on the WAIS test and at 80 on the
Stanford-Binet test. When asked about a statement in his report
that there was “absolutely no indication from an IQ standpoint that
[Edenfield] functions in a disabled range on intellectual disability”
and asked whether Edenfield “falls into that 67-to-77 range,
applying the SEM [standard error of measurement],” he replied:
Not for me, because I took all of the – both of the
intelligence instruments that I gave as the totality of the
circumstances, and he scored quite a bit higher on the
Stanford-Binet. So looking at both of those together, it is
my opinion that he does not function in the disabled
range. . . . And all the previous testing was also in the
70s. So, it was all quite consistent. . . . [A]ll of these tests
58
are at 70 – low 70s to a higher [sic] indicate the presence
of what we call construct validity. And what that means
is that, when you have the same tests or similar tests
given over a lengthy period of time and you wind up with
the same results, it actually indicates that he’s not – the
person is not functioning in the intellectual disability
range. He is in the borderline range.
Dr. King testified that his testing showed that Edenfield functioned
at a fourth-grade reading level, a third-grade spelling level, and a
second-grade mathematics level, and he acknowledged that such
test results “can be” consistent with having intellectual disability.
He took issue with some of the testing that Dr. Fiano gave to several
persons who knew Edenfield, however, stating:
Two of them were extremely low; so low that, you know,
they raised serious questions about giving zeros, because
he was not able at all to do certain tasks [according to
them] that I think he had no difficulty with.
He then emphasized the fact that Edenfield’s “sister actually filled
out the Vineland indicating that he had fairly good adaptive
functioning, that he was functioning in the average range.”
Regarding Edenfield’s manner of speaking, he testified: “He – to be
quite honest with you he talks as a person that I would describe
59
probably as borderline. . . . Not average, but not intellectually
deficient.” Dr. King defended his decision to begin his testing on the
Stanford-Binet test at the point specified for adults, stating, “It’s
important just because that’s the standardization for the test.” He
added about whether starting at a lower point is ever appropriate:
Sometimes in clinical judgment, if you have somebody
who you are assessing and it’s quite obvious that they are
functioning at an extremely low level, you might start at
a lower age. But those situations are pretty rare.
He explained that he had done so only once in 200 to 300 tests, with
someone who had already undergone IQ testing and scored less than
40.
Dr. Stephen Price gave deposition testimony in which he
discussed a report that he prepared for Edenfield’s habeas
proceeding. He testified regarding his interview of Edenfield: “He
has a – an odd way of communicating. He’s very – he rambles a
great deal, and very circumstantial and tangential.” He testified
that the “mini mental status examination” that he gave Edenfield
“corroborated the – the mild intellectual deficiency that – that he
60
has.” He acknowledged that there was no evidence that Edenfield
had ever received disability benefits from Social Security or that he
had ever been diagnosed previously as being intellectually disabled.
c. Analysis of Prejudice
Having recounted in some detail both the evidence presented
in the trial court relevant to the jury’s assessment of Edenfield’s
intellectual functioning and the new evidence on that topic
presented in the habeas court, we turn to assessing the likely effect
that the new evidence would have had on the jury’s deliberations at
Edenfield’s trial if it had been presented there. And here we are
concerned specifically with what effect such evidence would have
had on the jurors’ exercise of discretion in recommending a sentence
of death or of life, whether with or without parole, once they had
already determined beyond a reasonable doubt that Edenfield was
guilty and had also determined that the State had proven beyond a
reasonable doubt the existence of at least one statutory aggravating
circumstance. See OCGA § 17-10-30 (b) (providing the aggravating
circumstances that, once found, will authorized the discretionary
61
decision by a jury to recommend a death sentence for a murder).7 As
we noted above, in reviewing a lower court’s decision on such a
claim, we accept the lower court’s findings of fact unless clearly
erroneous, but we apply the law to the facts de novo. Strickland,
466 U. S. at 698 (IV); Carr, 273 Ga. at 616 (4). In that context, the
category of “findings of fact” is somewhat limited in scope (e.g., did
something happen or not regarding counsel’s investigation of the
case), while the relevant conclusions of law involve the questions, as
fact-driven as they may be, of (1) whether counsel performed
7 On direct review, this Court conducted a statutorily mandated review
of the statutory aggravating circumstances found by Edenfield’s jury and held:
The jury found beyond a reasonable doubt that the murder in this
case was committed during the commission of an aggravated
battery in that the anus of the victim was seriously disfigured, and
that the murder was outrageously or wantonly vile, horrible, or
inhuman in that it involved torture and depravity of mind.
Although it is a close question whether the evidence was sufficient
to sustain the finding of aggravated battery, there was more than
enough evidence to sustain the finding beyond a reasonable doubt
that the murder was outrageously or wantonly vile, horrible, or
inhuman in that it involved torture and depravity of mind. Even
if the finding of aggravating battery were set aside for insufficiency
of the evidence, the death sentence in this case still would be valid
because it is supported by another statutory aggravating
circumstance that the evidence fully supports.
Edenfield, 293 Ga. at 392 (13) (citations omitted).
62
deficiently and (2) whether the defendant suffered prejudice of
constitutional proportions. Id. In the de novo review for prejudice,
such as here where we have already assumed the existence of
deficient performance by counsel, we attempt to look at all of the
evidence through the eyes of the trial jurors and then ask ourselves
whether “‘there is a reasonable probability that at least one juror
would have struck a different balance’ in his or her final vote
regarding sentencing” if the jurors had heard the evidence presented
in the habeas court in addition to the evidence that they actually
heard at trial. Walker, 297 Ga. at 205 (II) (C) (2015) (quoting
Wiggins, 539 U. S. at 537 (III)). In conducting that de novo review
for prejudice here, we conclude that, although the evidence of
Edenfield’s intellectual functioning presented in the habeas court
was far higher in volume than the evidence presented at trial, it was
not meaningfully different from the trial evidence and would not in
reasonable probability have led any of the jurors to have selected a
sentence other than the death sentence they actually recommended.
63
At both the trial and the habeas proceedings, the evidence
showed that Edenfield received a variety of IQ scores over the years,
with one at 69, many in the 70s, and several in the 80s or higher.
Notably, even the State’s own expert acknowledged at trial that
Edenfield had consistently received IQ scores in the “borderline
range,” meaning the range just above mild mental intellectual
disability. Likewise, at both the trial and habeas proceedings,
expert testing showed Edenfield’s reading skills to be at the fourth
or fifth grade level, his spelling skills to be at the third, fourth, or
fifth grade level, and his mathematics skills to be at the second or
third grade level. While Dr. Fiano testified in the habeas court, as
no expert had at trial, that she had concluded that Edenfield
suffered from “mild intellectual disability,” even she acknowledged
that some of his testing was inconsistent with that diagnosis, with
some measures showing him functioning as high as in the “average”
range. And, on the other hand, the Warden’s habeas expert
highlighted that, over the long-term, Edenfield’s IQ scores were
64
consistently in the 70s and above 8 and that he demonstrated the
ability to navigate a simple but productive lifestyle. Thus, we
conclude that the expert testimony presented in the habeas court,
particularly considering the competing nature of some of it as to
Edenfield’s precise IQ and as to a relevant formal diagnosis, would
not have substantially altered the jury’s appraisal of Edenfield’s
intellectual functioning.
Also at both the trial and habeas proceedings, the evidence
showed that Edenfield was regarded by his family and other
associates as being mentally “slow,” worked menial jobs his whole
life, and required help to learn even his simple job responsibilities.
This evidence included trial testimony depicting him as simply
“plod[ding] along” in a “boring kind of life style” in his work and
needing assistance even in his basic responsibilities, testimony that
8We note that the United States Supreme Court has stated: “Even when
a person has taken multiple tests, each separate score must be assessed using
the SEM, and the analysis of multiple IQ scores jointly is a complicated
endeavor.” Hall v. Florida, 572 U. S. 701, 714 (III) (A) (134 SCt 1986, 188 LE2d
1007) (2014).
65
was not substantially enhanced by the similar habeas testimony.
Notably, too, some of Edenfield’s new habeas testimony even depicts
Edenfield as being a provider of assistance, rather than just a
recipient of it, with him caring for his mother and caring for his
more-severely impaired wife by keeping her focused on tasks,
shopping for her, and cooking for her. We acknowledge that the
habeas evidence includes testimony, albeit much of it only by
affidavit, from Edenfield’s family members and associates about his
limited adaptive behaviors through the years. Yet, we are struck
that the characterization of much of this testimony by Edenfield’s
several experts in his habeas proceeding repeatedly places an
interpretation on that testimony that fails to align with the original
testimony.9 Instead, that lay testimony, when considered in its own
9 For example, Vogelsang, Edenfield’s clinical social worker whose
findings were relied upon by Edenfield’s other experts, sought to downplay the
fact that Edenfield was sometimes assigned to drive a military truck,
hastening to add that “[h]e was never allowed to do it alone.” However, lay
testimony showed that Edenfield drove a two-and-a-half ton truck 65 miles to
Fort Stewart and needed a passenger to accompany him simply because the
amount of food being picked up made it “a two (2) person job.” Similarly,
Vogelsang downplayed Edenfield’s operation of a telephone switchboard as
being “very simple” and involving merely “pull a cord out, plug a cord in,” while
66
right, depicts someone who suffered intellectual challenges but was
able to lead a generally independent household, nonetheless.
Further evidence of Edenfield’s difficulties was presented at
both the trial and habeas proceedings through evidence showing
that Edenfield did not reach his final rank in the military based on
merit and would not have reached that level under current
standards, that he was “slow” but dependable in his military duties,
that his duties while in the National Guard were limited to working
as a cook, that even with his limited duties he required assistance
because of his “slowness,” and that he required assistance to
complete simple tasks like filling out military paperwork. The
testimony on this topic in the habeas court was different from that
in the trial court in volume and in some degree of specificity,
particularly regarding the exact program under which Edenfield
had been admitted into the Army during the Vietnam War, but those
differences do not alter our analysis here, particularly considering
the description of the operation in lay testimony from Alan Kittrell showed it
to be more involved.
67
the fact that some of the records presented in the habeas court
actually suggested that Edenfield tested and operated at an average
level of functioning.
Finally, we note that, at both proceedings, the evidence
included lengthy video recordings of Edenfield being interviewed by
investigators, with him appearing somewhat odd in demeanor but
able to cogently participate in the interview. In this context, we
again emphasize that our task here is to consider what effect the
new habeas evidence likely would have had on the jurors’ purely
discretionary selection of a sentencing verdict. In rendering such a
verdict, the jurors, especially after hearing competing expert
testimony, would have given great weight to the hours of video-
recorded interviews of Edenfield, where the jurors could see
firsthand what his mental capabilities were. Thus, we likewise
weigh those video recordings heavily in our analysis of prejudice
here.
Overall, unlike the evidence in the habeas court, the evidence
at trial could have been viewed by the jury as casting Edenfield in a
68
favorable, mitigating light: someone who worked hard, overcame
his mental “slowness” to a large degree, kept his family together the
best he could, and served his country in a humble role, yet in a
diligent fashion. In some contrast, the habeas evidence attempts to
characterize Edenfield as someone whose mental “slowness” made
him somewhat incompetent in his work and military duties. While
that characterization might also be considered mitigating by the
jury, it also may well have undercut the mitigating effect of the
different light cast on Edenfield at trial as someone who
accomplished some important things. And importantly, in the
process of developing an alternative theory of mitigation in the
habeas court, Edenfield introduced some severely aggravating
evidence, particularly evidence that he was investigated by DFCS
after both of his children accused him of sexually molesting them as
minors and the finding of the psychologist who investigated the
children’s claims that the daughter’s claim bore indices of
credibility.
69
In sum, the evidence presented in the habeas court was not so
much more mitigating compared to the evidence at sentencing that
it would have created a reasonable probability that any of the jurors
would have exercised his or her discretion differently so as to vote
for a sentence less than death in this case. 10 See Humphrey v.
Morrow, 289 Ga. 864, 867 (II) (717 SE2d 168) (2011) (citing OCGA §
17-10-30, which provides that a death sentence may be imposed only
upon a unanimous jury recommendation, yet finding no prejudice
from counsel’s deficiencies). Accordingly, we reverse the habeas
court’s judgment in which it vacated Edenfield’s death sentence on
the basis of this claim.
B. Seeking a Verdict of Guilty but Intellectually Disabled
Above, we discussed at length the evidence presented in
Edenfield’s trial regarding his intellectual capacity as compared to
10As a matter of course, we frequently consider published opinions with
similar fact patterns when considering the potential prejudicial effect of trial
counsel’s actual or presumed deficiency. With respect to this enumeration and
the one that follows, neither Edenfield nor the Warden has pointed us to any
cases sufficiently similar to be helpful to our analysis. Nor have we discovered
any on our own.
70
the evidence presented in the habeas court, and in that discussion
we concluded that the habeas evidence would not have had a
constitutionally significant effect on the sentencing phase verdict.
We next consider whether, as Edenfield argues in his cross-appeal,
such evidence would have had a significant effect in the
guilt/innocence phase, particularly whether there is a reasonable
probability that the jury would have found Edenfield to be guilty but
intellectually disabled. See OCGA § 17-7-131 (c) (3), (j) (providing
for a life sentence for any defendant who is convicted but can prove
his or her intellectual disability beyond a reasonable doubt in the
guilt/innocence phase of his or her death penalty trial); OCGA § 17-
7-131 (a) (2) (as amended in 2017 to replace the term “mentally
retarded” with the term “intellectual disability” and to renumber
subsections but otherwise without making any change to the
relevant definition) (“‘Intellectual disability’ means having
significantly subaverage general intellectual functioning resulting
in or associated with impairments in adaptive behavior which
manifested during the developmental period.”). In the sentencing
71
phase, the jury would have been acting entirely within its discretion
in selecting a verdict based on its general assessment of Edenfield’s
intellectual functioning. However, in the guilt/innocence phase, the
jury would have been required to consider whether Edenfield had
proven beyond a reasonable doubt that he was intellectually
disabled under the statutory and clinical definitions of that
condition. See Young, 312 Ga. at 87-100 (25) (plurality opinion). In
view of the higher burden applicable here and in light of our
summary and discussion of the evidence set forth above, we conclude
that there is no reasonable probability that the evidence presented
in the habeas court would have led Edenfield’s jury to find him guilty
but intellectually disabled beyond a reasonable doubt. See Schofield
v. Holsey, 281 Ga. 809, 813 (II) (642 SE2d 56) (2007), overruled on
other grounds by Lane, 308 Ga. at 13.
C. Presenting Other Mitigating Evidence
Edenfield also argues in his cross-appeal that, after granting
sentencing relief based on his claim regarding intellectual disability,
the habeas court omitted findings of fact and conclusions of law
72
regarding the following areas of allegedly mitigating evidence:
Edenfield’s impoverished upbringing; physical abuse that Edenfield
suffered; George Edenfield’s propensity to violence; difficulties
suffered by Edenfield because of his family’s move; and evidence
related to Edenfield’s incest conviction. See OCGA § 9-14-49
(requiring findings of fact and conclusions of law). We agree that a
remand is necessary here. The habeas court’s summary denial of
“every other claim,” does not satisfy the requirements of OCGA § 9-
14-49. On remand, the habeas court should address solely the five
specific issues listed here. See Humphrey v. Riley, 291 Ga. 534, 546
(V) (731 SE2d 740) (2012) (remanding for consideration of a claim
that the habeas court “explicitly declined to also address”).11
11 We express no opinion about whether any or all of these points were
sufficiently presented to the habeas court to warrant adjudication at all. If
they were not, the habeas court may dispose of them accordingly. But, if they
are to be adjudicated, they will require findings of fact and conclusions of law
specific to each claim. OCGA § 9-14-49. The habeas court is also reminded
that, should it find or assume that trial counsel rendered deficient performance
in any manner regarding these particular remaining claims, any prejudice
from such deficiencies should be weighed collectively with the prejudice
stemming from the deficiencies discussed elsewhere in this opinion. See Lane,
308 Ga. at 15-16 (1).
73
D. Challenging Custodial Interrogation
Edenfield also argues in his cross-appeal that his trial counsel
rendered ineffective assistance by failing to support his motion to
suppress his custodial statements by including evidence of his
limited intellectual capacity. As Edenfield acknowledges, this Court
has already addressed the impact of his intellectual deficiencies on
the admissibility of his statements, holding as follows on direct
appeal:
Edenfield also contends that the voluntariness of his
statements — and his understanding of assurances given
to him by investigators — must be considered in the light
of his low intellectual capacity. But our review of the
recordings of his statements reveals that he had adequate
capacity to understand the context of the assurances and
that he did, in fact, understand that context. Moreover,
this conclusion is confirmed by expert testimony at trial,
which showed that Edenfield has an intelligence quotient
of 83, which puts him in the low end of the average range.
See Schneckloth v. Bustamonte, 412 U. S. 218, 226 (II) (A)
(93 SC 2041, 36 LE2d 854) (1973) (noting that intelligence
of the defendant is among the totality of circumstances to
be considered in weighing the voluntariness of his
statement).
Edenfield, 293 Ga. at 375 (2) n.7. However, we agree with Edenfield
that his motion to suppress would have been enhanced, at least
74
marginally, by a more compelling showing of his limited intellectual
capacity.
That said, while it does have a bearing on an assessment of the
voluntary nature of a confession, low intellectual functioning is not
alone a basis to exclude a statement. See Barrett v. State, 289 Ga.
197, 199 (1) (709 SE2d 816) (2011). Instead, as we noted on direct
appeal, citing Bustamonte, 412 U. S. 226, the intelligence of the
defendant is merely one factor comprising the totality of
circumstances to be considered in weighing the admissibility of a
custodial statement. In light of everything recounted above
regarding Edenfield’s new evidence of his intellectual deficiencies,
in particular our statements regarding that new evidence in relation
to his video-recorded confession that we also reviewed and noted on
direct appeal, we conclude that such new evidence would not have
shown that Edenfield did not voluntarily give his custodial
statements. Accordingly, we identify no deficiency on counsel’s part
regarding the motion to suppress. See Walker v. State, 296 Ga. 161,
169 (3) (a) (766 SE2d 28) (2014).
75
E. Challenging the State’s Forensic Evidence
Edenfield argues that trial counsel rendered ineffective
assistance by failing to challenge the State’s forensic evidence at
trial by calling a forensic pathologist to testify on behalf of the
defense. We note that the trial and habeas records show clearly that
trial counsel obtained the autopsy report and other forensic reports
from the State, spoke “with a physician but not with a forensic
pathologist,” and concluded about a month before trial that a
“[f]orensic pathologist [was] not necessary to explain” the injuries in
the case. Nevertheless, our analysis here does not depend on
whether counsel made a reasonable investigation into what a
forensic pathologist hired by the defense might have been able to
say, because we conclude that presentation of testimony at trial like
the testimony from a new forensic pathologist that Edenfield has
presented in his habeas proceedings would not in reasonable
probability have changed the jury’s findings as to his guilt or as to
76
his sentencing. 12 See Hall v. Lee, 286 Ga. 79, 95 (II) (C) (684 SE2d
868) (2009) (concluding that the expert testimony presented on
habeas would not in reasonable probability have changed the
outcome if presented at trial).
At the habeas hearing, Edenfield presented affidavit and live
testimony from Dr. Jonathan Arden, a forensic pathologist who
criticized the trial testimony of the State’s forensic pathologist, Dr.
James Downs. The Warden called Dr. Downs to testify in response,
and then Edenfield recalled Dr. Arden to testify in rebuttal. Below,
we address the two witnesses’ testimony together as to each topic
12 In contrast to our discussion above requiring remand for findings of
fact and conclusions of law, the habeas court addressed this matter at some
length in its discussion of the guilt/innocence phase, and that discussion also
identified the matter as having potential bearing on the sentencing phase.
Thus, when the habeas court later stated summarily at the end of its order
that it was denying “every other claim” beyond the one claim on which it
granted relief, that denial must be considered in concert with the prior
consideration of this issue in relation to the guilt/innocence phase. Coupled
with that discussion by the habeas court regarding the guilt/innocence phase
and the findings of fact and conclusions of law made there, we conclude that
this otherwise-summary disposition by the habeas court regarding this claim
as it concerns the sentencing phase was sufficient to satisfy the requirement
of OCGA § 9-14-49 for findings of fact and conclusions of law and was sufficient
to support our analysis here. Cf. Riley, 291 Ga. at 546 (V) (remanding for
consideration of a claim that the habeas court “explicitly declined to also
address”).
77
raised by Edenfield in his cross-appeal, followed by an analysis of
the combined effect that testimony has on our analysis of Edenfield’s
claim here.
1. Injuries to the Anal Area
We begin with a discussion of Dr. Downs’s trial testimony
regarding his assessment of injuries to the victim’s anus and the
area near it. Dr. Downs testified that during his autopsy the “body
was in a state of decomposition,” specifically at the “early end of”
that process when “gas forms in the soft tissues so things get
swollen,” “external skin starts to get separated from the soft tissues
underneath,” and “the area of the skin that has the pigment tends
to slide off.” He testified that there were “two separate areas of
bruising that [he] saw grossly” during his in-person examination of
the body. The first was “a quarter inch area of hemorrhage” that
was “at the six o’clock edge of the perineum, which is the space
between the anus and the penis.” The second was a “one inch bruise”
that was “at the edge of the anal margin” and “extended down into
the soft tissues.” He opined regarding this second injury:
78
Some type of blunt force had to cause that. One type of
blunt force would be a penetration, a stretching injury
because that area of the body while accommodating a
certain stretch at some point you’re going to damage it
particularly if it’s done – penetration is done roughly. So
that bruise would be consistent with penetration.
He also testified that he had taken “microscopic sections” and
“confirmed in the areas that were injured that there was fresh blood
there.”
Dr. Arden testified at the habeas hearing that he agreed with
Dr. Downs’s characterization of the body’s stage of decomposition,
and he relied on the body’s partial decomposition to question Dr.
Downs’s findings regarding the anal area. First, Dr. Arden testified
that he was unable to see, in the photographs he reviewed, any
injury to the perineum but that he instead saw “tissues that were
decomposed and decomposing.” Regarding his microscopic
examination of the sample from this area, he testified: “I saw the
postmortem decompositional changes, but I did not see any
hemorrhage.” Regarding the second potential injury, the one to the
margin of the anus itself, he testified that he “did not observe any
79
contusion that matches the description of being one inch and
following the 6 to 9 to 12 o’clock margin of the anus.” As to his
understanding of Dr. Downs’s description of this injury, Dr. Arden
testified on cross-examination: “But my reading of his words is that
it’s 1-inch wide and extending along that half of the circumference.”
As to his own microscopic examination, he testified that he “saw
substantial postmortem changes,” but he also admitted that he “saw
one very small area . . . of some mild hemorrhage.” He explained
that, given Dr. Downs’s “description of anal penetration, especially
as Dr. Downs referenced if it’s done roughly,” he “would expect to
see widespread, acute hemorrhage pretty much throughout the
tissue” and “would expect to see a laceration of the anus.” He opined
that the “best explanation here is decompositional change,” and he
explained that such a mild hemorrhage “could also happen not only
from penetration or an assault, that could also happen from, for
instance, straining at hard stools.” However, he reiterated: “But I
do not see any convincing evidence that there was indeed a bruise
as described.” And he stated regarding what he would have
80
expected to see from an anal rape: “Definitive evidence of
hemorrhage and bruising and very likely a laceration as well.”
On his direct examination at the habeas hearing, Dr. Downs
gave testimony reacting to Dr. Arden’s testimony, something that he
would have been permitted to do at trial if Dr. Arden had testified
there. Dr. Downs reiterated that he had microscopically “confirmed
that there was blood underneath” the two areas of “discoloration”
that he had observed during his in-person examination of the
victim’s anal area. He also directly contradicted Dr. Arden’s
understanding of his description regarding the size of the possible
injury to the margin of the anus, stating:
[M]y description was never intended to say it extended
from 6 to 9 to 12. What that’s intended to say is I opened
the anus up, I sectioned it. I’m not going to pretend to say
this is at 10 o’clock now because I’ve altered the
appearance.
Considering these two witnesses’ testimony about the possible
injuries to the victim’s anus, we do not find them to be incompatible,
as both left open the possibility that such injuries existed. To the
extent Dr. Arden attempted to discredit Dr. Downs’s testimony, we
81
agree with the habeas court’s assessment that Dr. Arden merely
asserted that there was “no conclusive evidence” of anal injury,
meaning that his effort to discredit Dr. Downs largely fell flat.
2. Possible Bite Mark
We turn next to Dr. Downs’s trial testimony about a possible
bite mark on the victim’s back. Dr. Downs’s conclusions about this
potential injury were driven in part by testing swabs he took from
various parts of the victim’s body. He explained that amylase was
“an enzyme that’s present in lots of different areas in the body at low
concentrations” but was a major component of saliva that was “fairly
hardy” and “tends to hang around.” He explained that the swabs he
had taken of some areas of the victim’s body had tested negative for
amylase, but he continued: “The areas that I tested again [–] the
back, the buttocks, the penis [–] those were positive.” He then
turned directly to the topic of a possible injury to the victim’s back.
He explained:
[O]n Christopher’s left upper back, there was a crescent
shaped mark about two inches, a little less than two
inches diameter of bruising. And associated with that
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was a positive test for amylase. My opinion that’s
consistent with a human bite mark.
In his habeas testimony, Dr. Arden explained that one “can
find amylase in perspiration, sweat, urine, [and] some other bodily
fluids as well,” but he also indicated that “it is found in higher
concentration in saliva.” As to possible bruising injuries in general,
he explained: “Yes, postmortem discoloration can, indeed, look like
a bruise, or either simulate it or hide it or obscure it or make it
unclear.” Regarding the possible bite mark in particular, Dr. Arden
testified: “In my opinion, the microscopic examination does not
support the conclusion that there was a real blunt injury to that part
of the body[, because,] if that were a real injury incurred during life,
I would expect to see substantial hemorrhage spread over wide areas
relative to the size of that tissue sample.” Nevertheless, Dr. Arden
did not exclude the possibility that the injury identified by Dr.
Downs was in fact “real.” While Dr. Downs had described his
findings as “consistent with a human bite mark,” Dr. Arden could
only say that it was “not conclusively a bite mark” and that, while
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the discoloration was “potentially consistent with a human bite
mark, that feature by itself [wa]s not specific enough to make a
definitive conclusion as to it being a bite mark.” Similarly, while Dr.
Arden criticized Dr. Downs for not consulting with an odontologist,
which is an expert on teeth, he also had not done so.
In his own habeas testimony in response to Dr. Arden’s, Dr.
Downs explained that he had consulted an odontologist in the past
in other cases, but he stated: “But in a case like this, because you
have that leaking of pigment – blood pigment in a bruise out into
the tissues, you lose the individual teeth. It’s not expected to be
there. It wasn’t there.” He also reemphasized that his opinion
regarding the existence of a bite mark was based in part on the
positive testing “for amylase, saliva.” He concluded: “And I stated
very clearly [in trial testimony], it is an opinion. I believe it to be
consistent with a bite. I still do.”
Considering these two witnesses’ testimony about the possible
injuries to the victim’s back resulting from a human bite, we do not
view them as being directly contradictory, as Dr. Arden simply found
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the evidence inconclusive while Dr. Downs found it persuasive.
Rather, while Dr. Downs developed an opinion that the evidence
supported an injury consistent with a human bite mark, Dr. Arden
opined that the evidence did “not conclusively” point to a bite injury.
3. Seminal Fluid
Dr. Downs also testified briefly at trial about possible seminal
fluid that had been found on the garbage bags from which the
victim’s body had been recovered. He testified, “That was
determined chemically but not confirmed by serology.” And he
continued:
Well, I’m not a forensic biologist, but what they do are
screening tests and confirmation tests. So one test
indicated that there was seminal fluid. Semen has two
components, two major components again, kind of like
saliva that we’re interested in. One is the chemical part,
the ejaculate. The other is the cellular part, the semen.
So you can have ejaculation, seminal fluid without the
deposit of sperm cells.
On cross-examination by Edenfield, Dr. Downs confirmed that the
presence of semen had not been confirmed, although trial counsel
seems to have understood the relevant confirmatory testing at issue
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to have been DNA testing rather than more-standard serological
testing for the presence of sperm.
In his habeas testimony, Dr. Arden gave a comparable
explanation of the two components of male ejaculate, a “liquid
medium” and “the cellular component, which is the spermatozoa, the
actual sperm cells.” As to chemical testing for the presence of the
“liquid medium” on the garbage bags, he testified that there was
“one bag that was negative,” but he admitted that “the other four
bags” had “some results listed as weak positive” while also having
“results labeled as negative.” He explained that the weak-positive
results from the chemical “acid phosphatase” test for seminal fluid,
when combined with a negative chemical test for “P30,” which is
prostate enzyme, and a negative microscopic examination for
spermatozoa, “means that there was no semen found.” He
continued: “Sure, I suppose there is some possibility. There is no
evidence for it. There is no reason to make that conclusion, to
support a conclusion, but I guess pretty much anything is possible.”
Then, on cross-examination by the Warden, Dr. Arden
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acknowledged again that the lab report that Dr. Downs received for
use during his autopsy showed the chemical presence of seminal
fluid.
In his own habeas testimony, Dr. Downs on cross-examination
explained how the absence of sperm did not change his opinion about
the presence of seminal fluid on some of the bags, stating: “That’s
correct, because there’s different things. Sperm cells don’t
necessarily always accompany ejaculation. Not to get graphic, but I
think the lay use is ‘pre-cum.’”
Once again, our comparison of the two witnesses’ testimony
reveals no fundamental inconsistencies, as both affirm that one
chemical test indicated the presence of seminal fluid on some of the
bags but that no other confirmatory evidence was found, particularly
with regard to the presence of spermatozoa. Furthermore, any such
testimony, whether conclusive or not, would have been viewed by
the jury through the prism of Edenfield’s own admission that he
masturbated and rubbed his penis against the victim as he was
being raped, even marking on a photograph of the victim’s body
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exactly where his penis made contact with the victim.
4. Injuries to Neck and Asphyxiation
The final topic of testimony discussed by Edenfield in his claim
here concerns the injuries to the victim’s neck and the mechanism
of death. Dr. Downs testified that he “did not see any significant
gross trauma” to the area but that he found “fresh blood” in his
microscopic examination of “the area of his windpipe, his voice box.”
He concluded that “the finding in the neck was consistent but not
diagnostic of the cause of death,” and he ultimately reached the
opinion that “Christopher died as a result of asphyxiation.” He
testified that his opinion was not affected by the lack of breakage of
the “hyoid bone” in the victim’s neck, because such bones in children,
unlike in adults, are “cartilage so they’re soft, bendable, flexible.”
Furthermore, as he testified, death by asphyxiation can be
accomplished with merely five pounds of pressure to the jugular
veins in the neck that service the brain, as compared to the ten
pounds of pressure required to block the carotid arteries in the neck
or the thirty pounds of pressure required to block the windpipe.
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Thus, he explained, asphyxiation, which is simply the deprivation of
oxygen to the brain by any means, could have been accomplished on
the child victim by strangulation without causing more injury than
he observed on the body, particularly if the strangulation had been
accomplished with hands held flatly against the neck without
“digging [the] fingernails in.”
In his habeas testimony, Dr. Arden likewise testified that he
saw no injuries in his gross examination, which he performed only
by examining photographs of the victim’s body. However, he added
that he “would expect to find localized areas of bruising” and “would
also be very concerned about finding injuries either to the larynx
itself or to the hyoid bone above it.” He testified regarding his own
microscopic examination:
I did not see definitive hemorrhage. This is similar to one
of the other earlier [microscope] slides that I discussed
where I saw a few tiny areas of potential extravasation of
red blood cells from the blood vessels. But definitive
hemorrhage? No. Widespread hemorrhage? No.
He added regarding the area of the hyoid bone that the “likelihood
of having grossly visible hemorrhage is actually quite large” where
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there is manual strangulation. On cross-examination by the
Warden, he admitted: “It is possible to asphyxiate somebody
without leaving much bruising under certain circumstances.” And
he again acknowledged observing “very mild extravasation
associated with the larynx,” although “not the degree or extent of
hemorrhage that [he] would expect if this were indeed a real injury.”
He summarized: “In my opinion, the evidence is insufficient to
diagnose it as a real injury.” Nevertheless, Dr. Arden agreed with
Dr. Downs that asphyxiation was “the most likely mechanism of
death” in some manner, although he did not explain how it might
have occurred in the victim’s case.
Testifying in response to Dr. Arden’s habeas testimony, Dr.
Downs explained his opinion regarding the small amount of blood
visible in microscopic examination of the neck structures:
Basically with the eyeball examination, I didn’t really see
anything, and that makes good sense, because the area
here, the chin is down, so basically that area is going to
be squeezed and it going to be, like, the livor mortis. It’s
going to squeeze blood out of the specific area. . . .
[Microscopically,] I did see interstitial blood or red blood
cells in the soft tissues at the site adjacent to the larynx,
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which, again, with livor mortis, blood is going to settle
with gravity, it’s going to go down. This is not a down
area.
He reiterated his trial testimony regarding how death by asphyxia
can be accomplished with only “five to six pounds of pressure to block
the veins,” concluding: “It doesn’t take much pressure at all. It’s
certainly not a crushing type injury.” He also stood by his prior trial
testimony regarding the flexibility of cartilage in a child’s neck as
compared to solid bone in an adult’s neck.
On balance, Dr. Downs’s original trial testimony was not
significantly undermined by Dr. Arden’s habeas testimony,
particularly in light of Dr. Arden’s concessions on cross-examination
that the mechanism of death was asphyxiation and that
strangulation could have occurred without significant bruising.
5. General Analysis of Testimony
Considering Dr. Downs’s and Dr. Arden’s two sets of testimony
together, it appears to us that their opinions were not directly at
odds. Much of what they disagreed upon regarded merely the degree
of certainty of particular findings. And, as to that point, Dr. Downs’s
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habeas testimony in response to Dr. Arden’s habeas testimony
provided compelling reasons for the habeas court to disregard many
of Dr. Arden’s criticisms. Much more importantly, however, is the
fact that, even assuming the correctness of Dr. Arden’s testimony, it
would have had little impact on the jury’s deliberations. In light of
the evidence as a whole, it is implausible that the jury would have
doubted that the victim was raped and then murdered by
asphyxiation. Dr. Arden’s testimony mostly just chipped away at
small edges of the State’s evidence, leaving the jury, if it had heard
Dr. Arden’s testimony at trial, with no reason to alter its verdict at
either phase of Edenfield’s trial. Thus, we conclude that Edenfield
has failed to show here that Dr. Arden’s testimony would in
reasonable probability have contributed to a different outcome at
trial. See Lee, 286 Ga. at 95 (II) (C) (concluding that the expert
testimony presented on habeas would not in reasonable probability
have changed the outcome if presented at trial).
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F. Challenging Three Jurors
Edenfield argues that trial counsel rendered ineffective
assistance regarding three jurors. We conclude that he has failed to
show deficient performance by counsel regarding any of these jurors.
First, Edenfield argues that trial counsel unreasonably failed
to move the trial court to excuse Juror T. F., who answered
affirmatively when asked during group voir dire whether she had
“ever been exposed to allegations of child molestation or child abuse
as a witness or just something that has occurred in family or close
relatives or friends.” She then stated during her individual voir dire
that she had been a “witness and a victim” in the prosecution of
“[c]hild molestation on [her] father.” When asked if she felt that her
experience “would affect [her] if [she] were to sit as a Juror in this
case,” she responded: “I don’t feel it affects me at all. I’m past that
part of my life and I’m over it, completely.”
We begin with the presumption that counsel’s actions were
reasonable, and that presumption is only buttressed by notes taken
by counsel’s jury-selection expert indicating that the juror seemed
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to have no strong opinions about the death penalty, had made eye
contact during voir dire, and was “past that part of [her] life – over
it.” See Strickland, 466 U. S. at 689 (III) (“[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. . . .”). In the absence of
further evidence suggesting otherwise, we conclude that trial
counsel did not render deficient performance regarding this juror.
See id.Second, Edenfield argues that trial counsel rendered
ineffective assistance regarding Juror P. B. According to Edenfield,
the juror acted improperly by not revealing during voir dire, when
asked if he had been “exposed to the crime of murder,” that his
biological father had been charged with murder. To begin, we find
this assertion to be unpersuasive, as the juror’s response to the
vague question asked of him was not necessarily inaccurate.
Furthermore, the juror was later excused during the guilt/innocence
phase when he reported that the situation regarding his biological
father was causing him to have “intrusive thoughts.” Edenfield also
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argues that trial counsel rendered ineffective assistance regarding
another juror, Juror A. D., to whom Juror P. B. commented about
his “intrusive thoughts.” According to Juror P. B.’s on-the-record
statements to the trial court, although Juror P. B. spoke to Juror A.
D. about his “intrusive thoughts,” Juror A. D. already knew about
Juror P. B.’s background from their being members of the same
church, and Juror P. B. had not expressed any opinions about
Edenfield’s case. Edenfield complains that Juror P. B.’s account of
his communications with Juror A. D. was only confirmed by a
discussion the trial court supposedly had with Juror A. D. that was
off the record and out of the parties’ presence. However, while we
do not condone the potential irregularity of this procedure, 13 which
the record suggests as possibly but not conclusively having occurred,
13 We have held that a defendant has the right to be present whenever
the trial court discusses potentially prejudicial trial-related matters with the
jury. See Hanifa v. State, 269 Ga. 797, 806-807 (6) (505 SE2d 731) (1998),
disapproved on other grounds by Clark v. State, 315 Ga. 423, 435, 437 n.16 (3)
(b) (883 SE2d 317) (2023). See also UAP, Introduction (“The defendant shall
be present during all proceedings in the superior court.”). Thus the procedure
here, if it actually occurred, was irregular either because it failed to follow this
rule or because any waiver of the rule by Edenfield was not placed on the record
as required by the Uniform Appeal Procedure. See UAP, Introduction (“All
proceedings in the superior court shall be recorded and transcribed.”).
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we conclude that it does not show the trial court’s assessment to be
factually flawed. Under these circumstances, we conclude that
Edenfield has failed to show deficient performance by trial counsel
regarding either Juror P. B. or Juror A. D.
G. Challenging Alleged Prosecutorial Misconduct
Edenfield argues that his trial counsel rendered ineffective
assistance by failing to object to two arguments by the prosecutor.
Edenfield’s claim lacks merit as to both.
First, it was not improper for the prosecutor to argue that the
jury would hear Edenfield’s own confession to being “part of the acts”
and “what they were doing,” including the crime of aggravated child
molestation. In fact, Edenfield stated in his video-recorded
confession, as summarized by this Court on direct appeal, “that he
helped to hold Christopher down as George penetrated the child
with his penis, both orally and anally,” and that he “rubbed his own
penis against Christopher and that he ejaculated on the child.”
Edenfield, 293 Ga. at 372 (1). See OCGA § 16-6-4 (c) (defining
aggravated child molestation as “an offense of child molestation
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which act physically injures the child or involves an act of sodomy”);
OCGA § 16-2-20 (a) (“Every person concerned in the commission of
a crime is a party thereto and may be charged with and convicted of
commission of the crime.”). As the prosecutor’s argument was based
on the evidence presented and therefore was not improper, trial
counsel did not perform deficiently by not objecting to it.
Second, Edenfield argues that it was improper for the
prosecutor to argue that the death penalty would “deter” Edenfield
“from committing another crime like this.” In support of his
argument, Edenfield points to this Court’s holding that “it is
improper for the State to argue that a defendant will kill in prison
simply because he killed while free.” Henry v. State, 278 Ga. 617,
619 (1) (604 SE2d 826) (2004). However, even assuming that the
argument at issue here is forbidden by the holding of Henry, we
conclude that there is no reasonable probability that the argument
contributed significantly to the death sentence in this case, given the
strength of the evidence against Edenfield, including his own
admissions, and the heinous nature of the crimes. See Waldrip v.
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Head, 279 Ga. 826, 833-834 (III) (620 SE2d 829) (2005) (assuming
that an argument by the State was improper but finding no
prejudice from counsel’s failure to object).
H. Collective Effect of Trial Counsel’s Deficiencies
As stated at the outset of this section, an ineffective assistance
of trial counsel claim will succeed if the collective effect of trial
counsel’s deficiencies in reasonable probability changed the outcome
of the trial. See Lane, 308 Ga. at 15-16 (1). We note that Edenfield
makes no particular argument regarding how these various claims
should be considered together as augmenting one another.
Nevertheless, considering the collective effect of the various
deficiencies either found or assumed above to have occurred in light
of our discussion of each of these various claims individually, we
conclude that no such reasonable probability exists as to either
Edenfield’s convictions or his sentences, including his death
sentence for the murder. See id.
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III. Ineffective Assistance of Appellate Counsel Claim
Edenfield argues that his appellate counsel rendered
ineffective assistance by failing to raise a claim on appeal regarding
the funding of his trial defense and the trial court’s denial of a
continuance. An ineffective assistance of appellate counsel claim is
governed generally by the same law set forth above regarding
ineffective assistance of trial counsel claims, with a habeas
petitioner needing to show both constitutionally deficient
performance on the part of appellate counsel and resulting prejudice
of constitutional proportion in the form of a reasonable probability
of a different outcome. See Strickland, 466 U. S. at 687 (III); Battles
v. Chapman, 269 Ga. 702 (506 SE2d 838) (1998), overruled in part
by Shorter v. Waters, 275 Ga. 581, 584-585 (571 SE2d 373) (2002).
We agree with Edenfield that the appellate brief initially filed
in his direct appeal, whether as the result of confusion about
whether this Court might grant an extension of time for filing the
brief or some other cause, was patently “anemic” and unworthy of
the seriousness of the matter at stake. However, based on the rules
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of this Court in effect at the time, a team of six attorneys
subsequently filed a thorough brief competently raising seven
claims of error. Nevertheless, in an argument spanning two
paragraphs and less than two pages, Edenfield argues that this
appellate team rendered ineffective assistance in failing to raise the
particular claims that the trial court erred by forcing him to go to
trial despite inadequate funding during the pretrial period and in
denying several motions for a continuance. But Edenfield, even
here, has never articulated a complete argument for relief on either
of these questions. First, Edenfield suggests that the rushed nature
of the appellate briefs ultimately filed “underscores appellate
counsel’s lack of strategy in not challenging these rulings.” But, of
course, the test is not whether counsel had time to develop a
strategy. Rather, the question is whether the representation falls
within the scope of representation a competent attorney could
render. See Strickland, 466 U. S. at 687-691 (III) (A). Edenfield’s
argument does not include an explanation of how increased funding
would have yielded a different verdict. The fact that other attorneys
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handling different cases during the same time period were able to
secure favorable rulings concerning funding that ultimately
contributed to bargained-for guilty pleas does not answer the
pertinent question of what would have likely happened in
Edenfield’s case. Second, in light of the broad discretion trial courts
have when considering a motion for continuance, Edenfield’s broad
assertion that appellate counsel should have used “helpful
precedent” to litigate the trial court’s denial of multiple continuance
motions fails in two respects: Edenfield does not explain a basis for
why any of the denied motions would have been reversed under an
abuse of discretion standard; and Edenfield provides no argument
concerning how one or more granted continuances would have
produced a substantial likelihood of a different outcome. Because
we conclude that, even as now presented in this habeas appeal,
Edenfield has failed to demonstrate that the trial court abused its
discretion in managing the timing of his trial in light of the funding
difficulties that beset the case through much of its pretrial
proceedings, we see no merit to his claim that the appellate team
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either rendered deficient performance or caused him to suffer
prejudice on appeal. See Head v. Ferrell, 274 Ga. 399, 410 (V) (C)
(5) (554 SE2d 155) (2001) (holding that appellate counsel do not
perform deficiently by failing to argue a meritless claim). See also
OCGA § 17-8-22 (“All applications for continuances are addressed to
the sound legal discretion of the court. . . .”); Loyd v. State, 288 Ga.
481, 487 (3) (705 SE2d 616) (2011) (concluding in a death penalty
case that the trial court had not abused its discretion in denying the
defendant’s motion for a continuance where counsel allegedly “had
insufficient time to prepare for trial”).
IV. Freestanding Claim of Intellectual Disability
In addition to claiming, as discussed above, that his trial
counsel rendered ineffective assistance at trial regarding his alleged
intellectual disability, Edenfield further makes a freestanding claim
that he is intellectually disabled and that his execution therefore
would be unconstitutional. See Atkins v. Virginia, 536 U. S. 304,
316 (III) (122 SCt 2242, 153 LE2d 335) (2002) (overruling prior
precedent to hold that the execution of an intellectually disabled
102
person would be unconstitutional). This claim is procedurally
defaulted because Edenfield, in the guilt/innocence phase, did not
seek a statutorily authorized verdict indicating intellectual
disability, nor did he raise such a claim on direct appeal; however,
the claim is nevertheless reviewable on habeas corpus in order “to
prevent a possible miscarriage of justice.” Young, 312 Ga. at 88 (25)
(a) (plurality opinion) (citing Turpin v. Hill, 269 Ga. 302, 303 (3) (b)
(498 SE2d 52) (1998); OCGA § 9-14-48 (d)). See OCGA § 17-7-131
(c) (3), (j) (providing for a life sentence for any defendant who can
prove his or her intellectual disability in the guilt/innocence phase
of his or her death penalty trial). In this procedural posture, the
petitioner must prove intellectual disability beyond a reasonable
doubt, which notably is the same standard that the jury would have
applied if the issue had been raised at trial. See Holsey, 281 Ga. at
817 (III), overruled on other grounds by Lane, 308 Ga. at 13.
Having already concluded above, in the context of Edenfield’s
ineffective assistance of trial counsel claims, that the new evidence
adduced by Edenfield in the habeas court regarding his alleged
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intellectual disability would not in reasonable probability have led
to a verdict of guilty but intellectually disabled under a beyond a
reasonable doubt standard, see id. at 813 (II), we now also conclude
that that same evidence is plainly insufficient to directly satisfy the
beyond a reasonable doubt standard applicable to this freestanding
claim of intellectual disability under the miscarriage of justice
exception, see Ferrell, 274 Ga. at 411-413 (VI). Furthermore, in
reaching this conclusion, we also reject Edenfield’s claim that the
beyond a reasonable doubt standard applicable here is
unconstitutional, as this Court has recently rejected a similar
argument. See Young, 312 Ga. at 87-100 (25) (plurality opinion).
Judgment reversed in Case No. S23A0260. Judgment affirmed
in part, and case remanded with direction in Case No. S23X0261.
All the Justices concur.
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