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Final Copy 286 Ga. 365

S09A1536, S09X1538. HALL v. LANCE; and vice versa. Hunstein, Chief Justice. A jury convicted Donnie Cleveland Lance of two counts of murder and of related crimes in connection with the deaths of his ex-wife, Sabrina "Joy" Lance, and her boyfriend, Dwight "Butch" Wood, Jr. The jury sentenced Lance to death for each of the murders, and this Court affirmed his convictions and sentences unanimously. Lance v. State, 275 Ga. 11 (560 SE2d 663) (2002). Lance filed a petition for a writ of habeas corpus on May 29, 2003, and he amended the petition on August 25, 2005. After conducting an evidentiary hearing, the habeas court granted the petition with respect to Lance's death sentences and denied the petition with respect to his convictions. The Warden has appealed in Case Number S09A1536, and Lance has cross-appealed in Case Number S09X1538. In the Warden's appeal, we reverse and reinstate Lance's death sentences. In Lance's cross-appeal, we affirm. I. Factual Background The evidence at trial showed that Lance had a long history of abusing Joy

Lance both before and after they divorced, including kidnapping her, beating her with his fist, a belt, and a handgun, strangling her, electrocuting her with a car battery, and threatening her with a flammable liquid, handguns, and a chainsaw. He had repeatedly threatened to kill her himself, and he had once inquired of a relative about what it might cost to hire someone to kill her and Butch Wood. Lance kicked in the door of Butch Wood's home in 1993 armed with a shotgun, loaded a shell into the chamber of the shotgun, and then fled only after a child in the home identified and spoke to Joe Moore, Lance's friend who was accompanying Lance that night. Shortly before midnight on November 8, 1997, Lance called Joy Lance's father, asked to speak to her, and learned that she was not at home. Shortly afterward, a passing police officer noticed Lance's automobile leaving his driveway. Lance arrived at Butch Wood's home, kicked in the front door, shot Butch Wood on the front and the back of his body with a shotgun, and then beat Joy Lance to death by repeatedly striking her in the face with the butt of the shotgun, which broke into pieces during the attack. Joy Lance's face was rendered utterly unrecognizable. Later that morning, Lance told his friend, Joe Moore, that Joy Lance (whom Lance referred to in a derogatory manner) would 2

not be coming to clean Lance's house that day; that Butch Wood's father could not "buy him out of Hell"; and that both Joy Lance and Butch Wood were dead. Lance later told a fellow inmate that he "felt stupid" that he had called Joy Lance's father before the murders, and Lance bragged to the inmate that "he hit Joy so hard that one of her eyeballs stuck to the wall." II. Alleged Ineffective Assistance of Counsel Lance argued in the habeas court that his trial counsel rendered ineffective assistance in various ways during both the guilt/innocence phase and the sentencing phase. An ineffective assistance of counsel claim must show that counsel rendered constitutionally-deficient performance and that actual prejudice of constitutional proportions resulted. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985). The constitutional standard for attorney performance is determined with reference to "prevailing professional norms." Strickland, supra at 688 (III) (A). See also Hall v. McPherson, 284 Ga. 219 (2) (663 SE2d 659) (2008) (noting relevance of published professional guidelines in assessing what might have been reasonable in a particular case). A review of an attorney's performance "includes a context-dependent consideration" of 3

counsel's decisions that sets aside the "`distorting effects of hindsight.'" Wiggins v. Smith, 539 U. S. 510, 523 (II) (A) (123 SC 2527, 156 LE2d 471) (2003). To show sufficient prejudice to succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [Cit.] Smith v. Francis, supra at 783 (1). We accept the habeas court's findings of fact unless they are clearly erroneous, but we apply the facts to the law de novo. Lajara v. State, 263 Ga. 438 (3) (435 SE2d 600) (1993). Because an ineffective assistance of counsel claim must show both deficient attorney performance and prejudice, the claim can be denied solely on the absence of sufficient prejudice. Id. For the reasons set forth below, we conclude as a matter of law that the absence of the deficiencies in Lance's trial counsel's performance would not in reasonable probability have resulted in a different outcome in either phase of Lance's trial. See Schofield v. Holsey, 281 Ga. 809, 812, n. 1 (642 SE2d 56) (2007) (holding that the combined effect of trial counsel's deficiencies should be considered in weighing prejudice). Accordingly, we reverse the habeas

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court's judgment insofar as it granted a new sentencing trial based on trial counsel's ineffectiveness, and we affirm the habeas court's judgment insofar as it denied relief regarding the guilt/innocence phase based on trial counsel's ineffectiveness. A. Mental Health Evidence The habeas court concluded that trial counsel performed deficiently in failing to prepare for Lance's trial by investigating Lance's background. We agree. The record is clear that, while trial counsel met repeatedly with Lance and with various members of his family, trial counsel failed to question them on issues related to potential mitigating evidence other than those issues related to residual doubt as to Lance's guilt. Trial counsel testified in the habeas court that Lance claimed that he was innocent, that his family members believed that he was innocent, and that trial counsel did not want to alienate them by asking questions related to what could be presented at trial in the event that Lance were convicted. Trial counsel explained that he had hoped to obtain the assistance of co-counsel so that co-counsel could discuss the sentencing phase with them. However, we hold that trial counsel performed well below basic professional standards by choosing not to discuss issues other than guilt and innocence with 5

Lance and his family even after the request for co-counsel was denied. The Warden argues that trial counsel did not perform deficiently because counsel's strategy of relying on jurors' residual doubt in the sentencing phase was reasonable. See Head v. Ferrell, 274 Ga. 399, 405 (V) (A) (554 SE2d 155) (2001) (reliance on residual doubt can be a reasonable strategy in the sentencing phase). However, trial counsel's performance in selecting a strategy must be regarded as deficient because that strategic choice was made without trial counsel's first conducting a reasonable investigation. See Wiggins, supra, 539 U. S. at 521-523 (II) (A); Strickland, supra, 466 U. S. at 690-691 (III) (A). See also Porter v. McCollum, __ U. S. __ (II) (130 SC 447, 452-453, 175 LE2d 398) (2009). The question then before us is whether trial counsel's deficient performance in failing to adequately investigate issues beyond guilt and innocence, when considered together with any other deficiencies in trial counsel's performance at trial, in reasonable probability changed the outcome of Lance's trial. We hold as a matter of law that it did not. The habeas court concluded that there would have been a reasonable probability of a different outcome in the sentencing phase of Lance's trial if trial counsel had prepared properly for the sentencing phase, because that preparation 6

would have led counsel to discover and use mental health evidence. We disagree with this conclusion for two independent and individually-sufficient reasons, which are discussed below. We also disagree with Lance's contention in his cross-appeal that an adequate investigation of mental health evidence would have led to a reasonable probability of a different outcome in the guilt/innocence phase. 1. Mental Health Evidence Likely Available First, we conclude that there is no reasonable probability that the information available to trial counsel through a reasonable initial investigation into Lance's mental health background would have led the trial court to grant funds for the type of in-depth and extensive mental health evaluation upon which Lance now largely relies. If trial counsel had properly interviewed lay witnesses, he would have discovered the following allegations about Lance's past: Lance had been in a number of automobile crashes, including some that might have resulted in brief unconsciousness and one that was caused by his fleeing from the police while drunk; Lance had once been exposed to toxic fumes while cleaning the inside of an oil tank; Lance had once ingested some gasoline as a child and had temporarily stopped breathing; Lance had a long 7

history of abusing alcohol; and Lance had once suffered a shot to the head, which did not penetrate his skull, which led to his being hospitalized followed by his leaving the hospital against medical advice, and which resulted in recurring headaches. Trial counsel also could have obtained records from Georgia Regional Hospital, but those records would have informed trial counsel merely that Lance was having difficulty adjusting to his divorce, that he was depressed, that his depression was associated with his facing kidnapping and aggravated assault charges for an alleged attack on his ex-wife, and that he abused alcohol. We find it doubtful that this information would have led reasonable counsel to seek a psychological evaluation of Lance, particularly given the reasonableness of trial counsel's stated desire to prioritize his requests for funds for various experts. Nor would the trial court have abused its discretion, if it had been asked by trial counsel for funds for a psychological evaluation of Lance, by determining that this information failed to show that the assistance of a psychologist was critical to Lance's defense. See Roseboro v. State, 258 Ga. 39 (3) (d) (365 SE2d 115) (1988). This is particularly true because Lance had already been examined in a psychological hospital and yet no obvious symptoms 8

of impairment were noted other than Lance's alcohol abuse and his failure to adjust to his divorce. Finally, even if the trial court had exercised its discretion to order a psychological examination, we find that it would have been extremely appropriate and thus highly likely that the trial court would have first ordered a general psychological screening rather than the extensive neuropsychological examination that Lance has undergone during his habeas proceedings. The probable result of such a general psychological examination is suggested by the absence of any reference to neuropsychological difficulties in the records from Lance's psychological evaluation at Georgia Regional Hospital (as discussed above) and by the habeas testimony from the Warden's neuropsychologist, asserting that a typical court-ordered psychological examination might not have shown any cause for a more detailed neuropsychological examination "because of the relatively mild nature" of Lance's mental neurological deficits. Accordingly, we conclude that it is unlikely that the trial court would have been informed through a general psychological examination of any possibly significant neurological deficits and, more importantly, that it is unlikely that the trial court would have exercised its discretion, in the face of such mild symptoms, to order a full neuropsychological examination. Given the multiple 9

levels of unlikelihood at issue here

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