Gray v. State, 1999-DR-00592-SCT.

Citation887 So.2d 158
Decision Date16 September 2004
Docket NumberNo. 1999-DR-00592-SCT.,1999-DR-00592-SCT.
PartiesRodney GRAY v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Office of Capital Post-Conviction Counsel by Robert Ryan, Louwlynn Vanzetta Williams, attorneys for appellant.

Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. On January 25, 1996, a Newton County jury convicted Rodney Gray of the capital murder of Grace Blackwell. This Court thereafter affirmed Gray's conviction and sentence on direct appeal. Gray v. State, 728 So.2d 36 (Miss.1998). Gray filed a petition for writ of certiorari with the United States Supreme Court, which that Court denied. Gray v. Miss., 526 U.S. 1055, 119 S.Ct. 1366, 143 L.Ed.2d 526 (1999). Gray now seeks leave to pursue post-conviction relief in the trial court.

¶ 2. The purpose of post-conviction proceedings is to bring forward facts to the trial court that were not known at the time of the judgment. Williams v. State, 669 So.2d 44, 52 (Miss.1996). The procedure is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal. Id.; Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2003). If newly discovered evidence would likely produce a different result or verdict and the proponent shows that the evidence was "discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching" then such evidence warrants a new trial. Ormond v. State, 599 So.2d 951, 962 (Miss.1992).

FACTS

¶ 3. On the morning of August 15, 1994, 79-year-old Grace Blackwell drove to the drive-through teller window of her bank in Jasper County. Blackwell presented a blank check and asked the teller to fill the check out in the amount of $1200. The teller's view of the car's back seat was blocked by hanging clothes. The teller testified that after giving her the money, she heard Blackwell say, "I'm hurrying, I'm hurrying." The teller notified the police, and they went to Blackwell's home only to find the front door open and the phone disconnected. Witnesses testified that they saw Blackwell's car around noontime being driven by a young black male, and one witness identified the driver as Rodney Gray.

¶ 4. Police found Blackwell's body at the end of a bridge in Newton County at 1:40 p.m. Her car was found elsewhere in Newton County. Investigators determined that Blackwell had been killed by a shotgun blast to the mouth. Later, an autopsy revealed that Blackwell had also been raped and that her body had been run over by a car.

¶ 5. Investigators questioned Rodney Gray on August 15 about Blackwell's disappearance and arrested him that same day. While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that he had hidden money in a bathroom vent. A search of Curry's trailer turned up $1,123 hidden in the bathroom air duct. The clothes and boots which Gray had been wearing on the day of the murder were found in a bucket behind Curry's trailer.

¶ 6. A Newton County grand jury indicted Gray for the capital murder of Grace Blackwell in violation of Miss.Code Ann. § 97-3-19(2)(e) (murder while engaged in the commission of the crime of kidnapping/and/or rape). Attorneys Thomas D. Lee and B. Jackson Thames, Jr. represented Gray in the trial court. At trial, FBI experts testified that the foot print at the Blackwell home came from Gray's boot and that tests on DNA samples taken from Blackwell's undergarments showed that Gray was the likely source. The probability that the semen came from someone other than Gray was 1 in 446,000,000. Further testimony came from Russell Saunders, one of Gray's cell mates, who testified that while in jail Gray told him that he (Gray) had forced Blackwell to withdraw money from the bank, raped her and then shot her with a .410 shotgun. The jury found Gray guilty of capital murder and then heard evidence as to mitigating and aggravating circumstances pertinent to the determination of the sentence which should be imposed on Gray. After hearing testimony from several witnesses from the State and the defense, the jury reached a unanimous verdict finding that Rodney Gray should suffer death for the capital murder of Blackwell.

ANALYSIS
I. Ineffective Assistance of Counsel:

¶ 7. Gray alleges several instances of ineffective assistance of counsel in support of his motion for post-conviction relief. The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To receive post-conviction relief for ineffective assistance of counsel, a claimant must demonstrate (1) that counsel's performance was deficient and (2) that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687,104 S.Ct. 2052). There is no constitutional right to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). The defendant has a right to have competent counsel, but this right does not entitle the defendant to have an attorney who makes no mistakes at trial. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Thus, the focus of the inquiry is whether counsel's assistance was reasonable considering all the circumstances. Stringer, 454 So.2d at 477.

¶ 8. Under the first prong of the Strickland test, defense counsel is presumed competent. Cabello, 524 So.2d at 315. A reviewing court must strongly presume that counsel's conduct falls within a wide range of reasonable professional assistance. Furthermore, the reviewing court must consider whether the challenged act or omission might be sound trial strategy. Stringer, 454 So.2d at 477.

¶ 9. In evaluating the second prong of the Strickland test, a reviewing court must determine whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. This means a probability sufficient to undermine the confidence in the outcome. Mohr, 584 So.2d at 430. Additionally, in a death penalty case, the ultimate inquiry is "whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently re-weighs the evidence — would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. If the post-conviction application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996)).

A. Change of Venue

¶ 10. Gray's first allegation of ineffective assistance of counsel is that his trial counsel failed to properly argue a motion for change of venue. Gray raised this issue on direct appeal to this Court after his conviction. Gray v. State, 728 So.2d at 63. At trial, the motion was accompanied by two affidavits alleging that Gray could not receive a fair trial in Newton County because the crime involved a black defendant and a white victim. During the hearing on the motion, the State presented six witnesses who testified to the contrary. Id. The trial court denied the motion, and this Court held that the State had successfully rebutted the presumption that Gray could not receive a fair trial in Newton County. Id. at 66.

¶ 11. This Court addressed the issue of whether the trial court properly denied the motion to transfer venue on Gray's direct appeal. Thus, Gray is now procedurally barred by res judicata from relitigating this issue through post-conviction relief. Miss.Code Ann. § 99-39-21(3) (1972 & Supp.2003). Furthermore, Gray cannot relitigate this issue in the guise of an ineffective assistance of counsel claim. Williams v. State, 722 So.2d 447, 449 (Miss.1998). On the merits, Gray offers as evidence to support his request for post-conviction relief only the motion to transfer venue and attached newspaper articles presented to the trial court. However, Gray does not present new or additional evidence not offered or unavailable to the trial court regarding the issue of community prejudice and whether he could receive a fair trial in Newton County. Accordingly, this issue is without merit.

B. Continuance

¶ 12. Gray next argues that his trial counsel were ineffective in failing to seek a continuance of the trial after the motion for change of venue was denied. Inasmuch as the motion for change of venue was properly denied, counsel cannot be faulted for deciding not to seek a continuance. The failure to raise objections or make motions which have no merit cannot be viewed as poor representation. Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). The motion to change venue was denied on October 30, 1995, and trial was not scheduled to begin until November 27, 1995. Trial counsel did in fact file a motion for continuance based upon other matters on November 17, 1995, and the trial was postponed until January 22, 1996. Thus, Gray's trial counsel requested and obtained a continuance lasting 56 days from the date of the trial setting and 84 days from the date of the denial of the motion to transfer venue. Accordingly, this issue is without merit.

C. Motion to quash the jury venire

¶ 13. Gray next asserts that his trial counsel were ineffective by failing to develop an "adequate and sufficient record" as to potential black...

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