Alexander v. State, 2019-KA-01612-COA

• Decision Date: 22 February 2021
• Docket Number: NO. 2019-KA-01612-COA,2019-KA-01612-COA
• Parties: NORRIS ALEXANDER A/K/A NORRIS CRAWFORD ALEXANDER A/K/A BUGGER APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

NORRIS ALEXANDER A/K/A NORRIS
CRAWFORD ALEXANDER A/K/A BUGGER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

NO. 2019-KA-01612-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

February 22, 2021

DATE OF JUDGMENT: 09/26/2019

TRIAL JUDGE: HON. JAMES McCLURE III

COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

DISTRICT ATTORNEY: JOHN W. CHAMPION

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: VACATED, REVERSED, AND REMANDED - 02/22/2021

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Norris Alexander was seventeen when he stabbed his mother-in-law to death. In 1998, he was convicted of capital murder by a Panola County Circuit Court jury. The circuit court sentenced Alexander to life imprisonment without eligibility for parole in the custody of the Mississippi Department of Corrections.¹

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¶2. Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), Alexander filed a motion for post-conviction relief (PCR) in 2015 for a Miller resentencing hearing. The circuit court granted Alexander's motion and set the matter on the docket for a Miller hearing. Prior to the hearing, Alexander's counsel filed two separate motions requesting funds to hire a mitigation specialist and a psychologist for purposes of investigating potential evidence for the Miller hearing. The court denied both motions. Thereafter, a Miller hearing was held, and the State called as witnesses Alexander's former defense attorney and the detective who investigated the capital murder. The defense called no witnesses. After the court went through the required Miller factors, it sentenced Alexander to life imprisonment as a habitual offender.²

¶3. On appeal, Alexander raises three issues: (1) the circuit court erred in denying his motion for funds to retain necessary expert assistance in the fields of mitigation investigation and adolescent development psychology; (2) the circuit court denied him due process by not resolving whether he was a rare, permanently incorrigible juvenile homicide offender; and (3) the circuit court deprived him of his constitutional right to have a jury impose his sentence. After review, we find the circuit court abused its discretion in denying both of Alexander's motions for funds to hire experts when it held Alexander failed to show a

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substantial need for a mitigation expert and psychologist.³ While the court held the defendant failed to show a substantial need for any expert, we find it was an abuse of discretion to deny funds for any experts under the circumstances of this case. This Court is not holding that a mitigation investigator or a child psychologist is required in every Miller sentencing. But under the circumstances of this case, and without mandating a certain type of expert or the number of experts, some funds instead of no funds should have been authorized by the court to assist in preparation for the Miller hearing. Therefore, we vacate Alexander's sentence and reverse and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶4. On August 27, 1997, Alexander was charged with the capital murder of his mother-in-law at her home in Panola County, Mississippi. In 1998, he was convicted of that crime by a jury. Before that trial occurred, Alexander pled guilty to two crimes of sale of marijuana. As a result of the previous felony convictions, the circuit court sentenced Alexander to life without parole. In 2012, the United States Supreme Court decided Miller which essentially held that sentencing a juvenile offender to a "mandatory" life sentence without the possibility of parole is unconstitutional. Id. at 465 (emphasis added). In doing so, the Supreme Court did not establish a uniform procedure for states to follow when sentencing juvenile homicide offenders. Id. But the Court did provide some guidance by noting that mandatory life sentences prevent the court from considering a number of relevant factors:

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Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Miller, 567 U.S. at 477-78 (citations omitted). In Parker v. State, 119 So. 3d 987, 999 (¶28) (Miss. 2013), the Mississippi Supreme Court adopted the Miller factors and held those factors must be considered before sentencing.

¶5. As a result of the Miller ruling, Alexander filed a PCR motion to set his sentence aside so the required factors could be argued and considered by the sentencing court. The circuit court granted Alexander's PCR motion on July 30, 2015, and set aside his sentence from his original trial. Alexander was appointed a public defender to assist him at the new sentencing hearing. On October 30, 2015, the court signed an order allowing the public defender to withdraw because Alexander retained Ronald Lewis as private counsel.

¶6. On February 10, 2016, Lewis filed a motion requesting up to $10,000 in funds for expert assistance in the field of "mitigation investigation" for Alexander's Miller resentencing hearing. The motion stated in relevant part:

There is reason to believe that there is a substantial amount of mitigating evidence to uncover and present in this case, particularly in relation to "the family and home environment that surround[ed]" Mr. Alexander. Unfortunately, no mitigation evidence was presented at trial because the

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[S]tate, at the conclusion of the liability phase, honored the victim's family's wish to forego the death penalty. Since the only alternative at that time was a mandatory sentence of life without possibility for parole, Mr. Alexander's trial counsel was foreclosed from putting on evidence of mitigating circumstances at the sentencing stage of his trial.

In order for undersigned counsel to prepare to put on evidence regarding "all of the circumstances set forth in Miller," at a re-sentencing hearing, and to uncover and present other relevant mitigating evidence, undersigned counsel needs the assistance of a mitigation specialist.

. . . .

The need for investigative assistance is especially strong in this case because of the passage of 39 years since the birth of Mr. Alexander and the extremely broad avenues of potentially relevant mitigating evidence.

¶7. Subsequently, on March 28, 2016, two days before a scheduled motions hearing, Alexander's counsel filed another motion requesting funds "not to exceed thirty thousand dollars ($30,000) for expert assistance in the field of adolescent developmental psychology and for a continuance to allow participation of expert in this case." To establish the need for the expert, the motion stated the following:

This court had a need for developmental expertise to consider relevant clinical information about Alexander's developmental status at age 17. Such an expert can provide valuable general information about adolescent development and evaluate Alexander to form an opinion and testimony about his developmental characteristics relevant for mitigation.

. . . .

While many records, including psychological records from Alexander's adolescence no longer exist, a forensic developmental psychologist can look to school records, which do exist, as well as evidence of lengthy in-patient treatment in a psychological hospital, to piece together a portrait of Alexander in his adolescence. Also, the expert can provide valuable assistance to the court in answering questions about the impact of environment upon adolescent development.

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Counsel for Alexander never set either motion for a hearing, and the court never held one. Rather, the motions sat in the court file for three years, and Alexander's childhood history and mitigation evaluation investigation never occurred. On April 30, 2019, the circuit court entered an order denying both motions. The court noted that Alexander's attorney had failed to contact the court administrator regarding setting a hearing on the motions and therefore waived his "request for oral argument."⁴ Further, the court denied the motions "on the merits," finding Alexander "neither established a substantial need for a psychologist[,] nor for a mitigation investigator"and failed to provide any "basis for his request for $30,000 for a psychologist." The court then set the Miller hearing for later that year. The record is silent as to why Alexander's privately retained counsel did not do some sort of mitigation determination between the April 30, 2019 order and the date of Miller hearing.⁵

¶8. Alexander's Miller hearing was held on September 24, 2019. The court was clear as to the purpose of the hearing by stating as an introduction that "the issue before the Court as to...