Billiot v. State, 54960

• Decision Date: 30 October 1985
• Docket Number: No. 54960,54960
• Citation: 478 So.2d 1043
• Parties: James E. BILLIOT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1043

478 So.2d 1043

James E. BILLIOT v. STATE of Mississippi.

No. 54960.

Supreme Court of Mississippi.

Oct. 30, 1985.

Rehearing Denied Dec. 4, 1985.

Thomas J. Lowe, Jr., Jackson, Bruce H. Hanley, Minneapolis, Philip G. Villaume, St. Paul, for appellant.

Edwin Lloyd Pittman, Atty. Gen., by Marvin L. White, Jr. and Amy D. Whitten, Sp. Asst. Attys. Gen., Jackson, for appellee.

En Banc.

ON APPELLANT'S CONSOLIDATED MOTION TO VACATE, OR SET ASIDE

JUDGMENT AND SENTENCE

SULLIVAN, Justice, for the Court:

James E. Billiot has applied for leave to file a consolidated motion to vacate, or set aside, judgment and sentence in his capital murder conviction. Billiot v. State, 454 So.2d 445 (Miss.1984).

Billiot, in the course of a robbery, bludgeoned to death Wallace Croll, Jr. Billiot was convicted of capital murder and his appeal to this Court was affirmed. Billiot sought and was denied a writ of certiorari by the Supreme Court of the United States on March 25, 1985. Billiot v. Mississippi, --- U.S. ----, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985).

Now before us is Billiot's application for post conviction relief pursuant to Mississippi Code Annotated Sec. 99-39-1 et. seq., and assigns the following as grounds:

A. Petitioner was denied the effective assistance of counsel at the sentencing phase of his capital trial;

B. Prosecutorial misconduct during argument violated the petitioner's right to a fundamentally fair trial and a non-arbitrary sentencing proceeding pursuant to the Mississippi Constitution and the United States Constitution;

C. Petitioner is presently insane. Because the Eighth amendment prohibits the execution of an insane person, petitioner's execution should be stayed;

D. The use, by the prosecution, during rebuttal at the guilt phase of the bifurcated trial, of statements made by a defendant during a court-ordered psychiatric examination limited to the issue of competence to stand trial, to rebut the defense of insanity, in the absence of the psychiatrist advising the defendant of his right to remain silent, violated that defendant's Fifth and Fourteenth Amendment rights, violates Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and raises an important question left open in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981);

E. The use, as an "aggravating circumstance", of the fact that a murder was committed in the course of the commission of a felony, in order to justify the imposition of a sentence of death, violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution when the so-called "aggravating circumstance" itself is a necessary element of the underlying crime of capital murder;

F. The finding by the jury of the "especially heinous, atrocious and cruel" aggravating circumstances violated the Eighth and Fourteenth Amendments to the United States Constitution;

G. The statute and instruction at the sentencing phase shifted the burden of proof to the petitioner and contained no standards for weighing, in violation of the Eighth and Fourteenth Amendments to the United States Constitution;

H. The trial court's denial of petitioner's motion for a change of venue unconstitutionally abridged his right to a trial by an impartial jury, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article III, Section 26 of the Mississippi Constitution;

I. The Mississippi Supreme Court misunderstood the psychological testimony in enunciating its decision relative to a "majority report" and "minority report";

J. The petitioner was unconstitutionally subjected to double jeopardy for the underlying felony of robbery in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article III Section 22 of the Mississippi Constitution;

K. The verdict of the jury finding petitioner guilty of capital murder was against the great weight of the evidence because the state failed to prove the underlying felony of robbery;

L. The death qualification of the jury denied petitioner an impartial jury from a cross-section of the community in violation of the Sixth and Eighth and Fourteenth Amendments to the United States Constitution and Article III Section 26 of the Mississippi Constitution.

Petitioner admits, and this Court finds, that Issues D, E, F, G, H, I, J, K, and L have already been raised and litigated. They may not be relitigated by way of post-conviction relief as they are res judicata. Callahan v. State, 426 So.2d 801 (Miss.1983), cert. den. 461 U.S. 943, 103 S.Ct. 2118, 77 L.Ed.2d 1300 (1984); Leatherwood v. State, 473 So.2d 964 (Miss.1985); Wilcher v. State, 479 So.2d 710 (Miss.1985).

What remains are petitioner's claims that he was denied effective assistance of counsel at sentencing, that there was prosecutorial misconduct during argument, and that he is presently insane and therefore cannot be executed.

Of the three remaining claims, one of them, B, is not res judicata because it was not raised at the trial nor on appeal, but it could and should have been and no reason is advanced by the petitioner for his failure to raise the prosecutorial misconduct, if any, in a timely fashion. By this failure, this allegation has been waived and is outside the scope of this Court's collateral review. Under the authority of Mississippi Code Annotated Sec. 99-39-21 (Supp.1984), failure to raise issues capable of resolution at trial and/or on direct appeal constitutes a waiver of those claims absent a showing of cause and actual prejudice. Wilcher, supra; Leatherwood, supra. There is no attempt to overcome this bar and through the doctrine of waiver this claim cannot be considered.

Proposition C, the present insanity of the petitioner, fails of proof and is based upon facts already determined to the contrary, and thus the underlying basis of the claim is res judicata. Billiot supports his claim of present insanity with the conclusions of Dr. William Johnson, based solely upon interviews and examination conducted prior to the trial. This does not satisfy the required showing of supervening present insanity and Billiot is barred from relitigating the issue of sanity as addressed by Dr. Johnson's affidavit.

Petitioner has failed to even suggest that his insanity occurred after his trial and conviction. A post conviction writ does not lie where the insanity of the applicant has not developed since his trial and sentence of death. Mitchell v. State, 179 Miss. 814, 176 So. 743 (1937). If this remedy applies at all it is to cases of supervening insanity. Mississippi Code Annotated Sec. 99-19-57(2)(a) (Supp.1984).

The petitioner claims that his present mental condition stems from that which existed prior to the time of the offense and the trial. It follows in these circumstances that the action of the trial court in determining that Billiot was sane and competent is also res judicata as to the issue of his present sanity, as the matter is raised in this petition. These issues were thoroughly litigated at trial and upon direct appeal and may not be litigated again by way of post conviction writ. Mississippi Code Annotated Sec. 99-39-21(2)(3) (Supp.1984); Mitchell, supra. See also Gray v. Lucas, 710 F.2d 1048, 1053 (5th Cir.1983), reh. den. 714 F.2d 137 (1983), and cert. den. 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983).

When petitioner's application is considered in conjunction with the record at trial and the counter-affidavit of Dr. Michael Whelan, it becomes clear that, on the merits, Billiot has failed to establish to a reasonable probability that he is presently insane. That is the test that must be passed for the execution to be stayed. Gray, supra.

We do not deal here with the M'Naghten standard nor the test used to determine competency to stand trial. The test for supervening insanity is found in Mississippi Code Annotated Sec. 99-19-57 (Supp.1984):

(b) For the purposes of this subsection, a person shall be deemed insane if the court finds the convict does not have sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey such information to his attorneys or the court.

See also Gray v. Lucas, supra, at 1054.

We, therefore, conclude that not only is the claim based upon facts that are res judicata, the claim itself fails on its merits as it is insufficient to establish to a reasonable probability that Billiot is insane for purposes of Mississippi Code Annotated Sec. 99-19-57 (Supp.1984).

Did Billiot have ineffective assistance of counsel at the sentencing phase of his trial? The right to counsel is secured both by Article III, Section 26 of the Mississippi Constitution and the Sixth Amendment and the Fourteenth Amendment of the United States Constitution. Mere appointment of counsel does not satisfy the requirement, for the counsel must be effective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have adopted the Strickland standard of effective assistance of counsel in Stringer v. State, 454 So.2d 468 (Miss.1984), cert. den. --- U.S. ----, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985), and applied it in Leatherwood v. State, supra; Thames v. State, 454 So.2d 486 (Miss.1984); In Re Hill, 460 So.2d 792 (Miss.1984); Ward v. State, 461 So.2d 724 (Miss.1984); and Lambert v. State, 462 So.2d 308 (Miss.1984). The Strickland guidelines are summarized as:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "co...