687 So.2d 1180 (Miss. 1996), 92-KA-00601, Neal v. State

Docket Nº:92-KA-00601-SCT.
Citation:687 So.2d 1180
Party Name:Howard Monteville NEAL v. STATE of Mississippi.
Case Date:August 08, 1996
Court:Supreme Court of Mississippi
 
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Page 1180

687 So.2d 1180 (Miss. 1996)

Howard Monteville NEAL

v.

STATE of Mississippi.

No. 92-KA-00601-SCT.

Supreme Court of Mississippi.

August 8, 1996

Rehearing Denied Nov. 14, 1996.

Page 1181

James W. Craig, Phelps Dunbar, Jackson, James L. Sultan, Rankin & Sultan, Boston, MA, Charles R. Bliss, Gainesville, FL, for Appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr, Assistant Attorney General, Charlene R. Pierce, Sp. Asst. Attorney General, Jackson, for Appellee.

En Banc.

JAMES L. ROBERTS, Jr., Justice, for the Court:

Howard Monteville Neal was convicted of the capital murder of Amanda Joy Neal on February 4, 1982, and on that same day, given a sentence of death. The conviction and sentence were affirmed by this Court in Neal v. State, 451 So.2d 743 (Miss.1984), cert. denied, Neal v. Mississippi, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984). Neal sought post-conviction review of his conviction and sentence, and in Neal v. State, 525 So.2d 1279 (Miss.1987), this Court remanded the case to the Circuit Court of Lawrence County for an evidentiary hearing on Neal's claim that he was denied the right to testify in his own behalf at trial. On March 30, 1992, the trial court conducted an evidentiary hearing and found that Neal had not been denied the right to testify in his own behalf. It is from this decision that Neal now appeals, asserting the following errors:

  1. THE SUBMISSION TO THE SENTENCING JURY OF THE "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" AGGRAVATING CIRCUMSTANCE REQUIRES THAT THE DEATH SENTENCE IN THIS CASE BE VACATED.

  2. THE TRIAL COURT ERRED IN DENYING PETITIONER A HEARING TO DETERMINE HIS COMPETENCY TO PARTICIPATE IN THE EVIDENTIARY HEARING ORDERED BY THIS COURT.

  3. THE CIRCUIT JUDGE ERRED IN FAILING TO RECUSE HIMSELF FROM THIS CASE.

  4. THE CIRCUIT COURT ERRED IN EXCLUDING THE TESTIMONY OF THE PETITIONER'S EXPERT.

  5. THE CIRCUIT COURT USED AN ERRONEOUS LEGAL STANDARD IN DENYING RELIEF.

    STATEMENT OF THE FACTS

    An evidentiary hearing was held on March 30, 1992, some ten years after trial, to determine whether Neal was denied the right the testify in his own behalf during his capital murder trial at which he was sentenced to death. Several motions were filed by the State, as well as by Neal and ruled on by the trial court.

    The State filed a motion for summary judgment and a renewed motion for summary judgment which were denied by the trial judge. At the hearing, Neal's counsel renewed several motions previously ruled on by the trial judge. Neal filed a motion for recusal which Judge Prichard denied. Neal argued that if available they would call the judge as a witness. The motion was denied, but the trial judge did allow a deposition which he had given earlier to be placed into evidence. Neal's counsel also renewed a motion for a separate competency hearing to determine Neal's competency to proceed with the evidentiary hearing. The trial court had

    Page 1182

    denied the original motion which sought to have a jury impaneled to determine Neal's competence. The trial court again denied the motion stating:

    it would take a psychologist or psychiatrist to say there has been some change of mental ability and competency since the trial to date. And that has never been done. It is still the same grounds that were alleged to have been present at the time of trial. The Supreme Court has in their opinion satisfied themselves that he was at that time competent even though it was admitted he is mentally retarded. 1 The Court finds no new evidence of new psychiatric and/or psychological problems which have evolved since the date of the conviction to the date of today.

    After the trial judge ruled on these motions they proceeded with the hearing. All the witnesses also gave depositions before the hearing which were entered into evidence although they were not read into the record. After listening to all the testimony and examining the evidence, the trial court denied Neal's motion for post-conviction collateral relief saying he had not met his burden of proof.

    DISCUSSION

  6. WHETHER THE SUBMISSION TO THE SENTENCING JURY OF THE "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" AGGRAVATING CIRCUMSTANCE REQUIRES THAT THE DEATH SENTENCE IN THIS CASE BE VACATED.

    First, Neal argues that the especially heinous, atrocious, or cruel aggravating circumstance instruction given to the jury requires his sentence of death to be reversed and a new sentencing hearing held because of the U.S. Supreme Court's decisions in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

    This is an appeal from an evidentiary hearing; therefore, this issue is not properly before this Court and will not be discussed. See Walton v. State, 666 So.2d 752, 753 (Miss.1995); Billiot v. State, 655 So.2d 1, 17 (Miss.1995), cert. denied, --- U.S. ----, 116 S.Ct. 818, 133 L.Ed.2d 762 (1996); Culberson v. State, 456 So.2d 697 (Miss.1984).

  7. WHETHER THE TRIAL COURT ERRED IN DENYING PETITIONER A HEARING TO DETERMINE HIS COMPETENCY TO PARTICIPATE IN THE EVIDENTIARY HEARING ORDERED BY THIS COURT.

    Neal contends that the trial court erred in not granting him a hearing to determine his competence to participate in the evidentiary hearing. When this Court remanded this case for an evidentiary hearing, Neal filed a motion requesting a competency hearing. The trial court denied the motion, finding it did not have jurisdiction over the matter. This Court originally denied a request by Neal for an interlocutory review of this issue. Neal then filed with this Court a Supplemental Application for Leave to File Motion to Vacate Judgment and Death Sentence. In denying this application this Court held:

    Furthermore, the jurisdiction of the Circuit Court of Lawrence County in this cause extends to the issue of Neal's present competence vel non, and that court may entertain such a claim at any stage of the proceedings, and may conduct an evidentiary hearing in response to a claim that Neal is presently incompetent to proceed if satisfied that such a hearing is warranted under the applicable facts and legal standards.

    Neal v. State, No. 03-DP-0036 (Miss., July 11, 1990) (unpublished order) (emphasis added). Subsequently, Neal again filed with the lower court a motion for hearing on competency to proceed. The Circuit Court again denied the motion in an order stating in part:

    After having considered the holding of the Mississippi Supreme Court in this matter and the reports received from the experts

    Page 1183

    that have examined petitioner, the Court finds that no hearing is warranted under the factual circumstances and legal standards applicable in such cases.

    Neal renewed the motion at the evidentiary hearing. The trial court allowed into evidence the Third Supplemental Affidavit of June Kaufman, Ph.D., but once again denied the motion stating in part:

    [T]he Court does agree with Mr. White's assessment that it would take a psychologist or psychiatrist to say there has been some change of mental ability and competency since the trial to date. And that has never been done. It is still the same grounds that were alleged to have been present at the time of trial. The Supreme Court has in their opinion satisfied themselves that he was at that time competent even though it was admitted he is mentally retarded. The Court finds no new evidence of new psychiatric and/or psychological problems which have evolved since the date of the conviction to the date of today.

    So those motions be and the same are hereby overruled.

    Neal correctly argues that a defendant must be competent at all stages of the criminal process, "whether trial, Gammage v. State, 510 So.2d 802 (Miss.1987); appeal, Tarrants v. State, 231 So.2d 493 (Miss.1970); post-conviction, Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.1985); or at the point of execution, Billiot v. State, 478 So.2d 1043 (Miss.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986)."

    In his brief, Neal cites authority concerning when a hearing should be held on a defendant's competency to stand trial. See Emanuel v. State, 412 So.2d 1187, 1188 (Miss.1982). He also points out the test to be used to determine if a defendant is competent to stand trial. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Gammage v. State, 510 So.2d 802 (Miss.1987); Jaquith v. Beckwith, 248 Miss. 491, 157 So.2d 403 (1963). Neal goes on to cite numerous other authority as to a defendant's right to a hearing on his competence to stand trial. However, he gives no authority concerning a petitioner's right to a competency hearing at a later stage in the criminal process when that person was given a pre-trial competency hearing and found competent to stand trial. That is the situation that concerns us here.

    Neal was given a competency hearing prior to his murder trials and found competent to stand trial despite his mental retardation. In both his direct appeal and his application for post-conviction relief before this Court, Neal attempted to put on proof of his lack of mental capacity. This Court held,

    The problem with these charges is that they are substantially redundant or cumulative when compared with the evidence Neal offered at trial. Specifically, Neal now wants to present evidence of his lack of mental capacity, a fact said to go to the voluntariness of his confession and to be in mitigation of sentence. But he went into these same matters at trial.... Because it is cumulative, what Neal alleges and purports to show now that counsel should have developed and proved simply does not amount to a substantial showing of denial of a state or federal right. Miss.Code Ann. § 99-39-27(5).

    Neal v. State, 525 So.2d 1279, 1282-83 (Miss.1987).

    ...

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