Bell v. State, 1999-DR-01287-SCT.

• Decision Date: 20 May 2004
• Docket Number: No. 1999-DR-01287-SCT.,1999-DR-01287-SCT.
• Parties: Frederick BELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

879 So.2d 423

Frederick BELL v. STATE of Mississippi.

No. 1999-DR-01287-SCT.

Supreme Court of Mississippi.

May 20, 2004.

Rehearing Denied August 19, 2004.

Office of Capital Post-Conviction Counsel by Robert M. Ryan, Terri L. Marroquin, David Voisin, attorneys for appellant.

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

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Frederick Bell ("Bell") was convicted in the Circuit Court of Grenada County of capital murder and sentenced to death. On direct appeal, this Court affirmed the conviction and sentence. Bell v. State, 725 So.2d 836 (Miss.1998), cert. denied, 526 U.S. 1122, 119 S.Ct. 1777, 143 L.Ed.2d 805, rehearing denied, 527 U.S. 1054, 120 S.Ct. 16, 144 L.Ed.2d 820 (1999). On December 20, 2001, Bell filed a petition requesting leave to seek post-conviction relief in the trial court. Citing cumulative error, Bell claims that he received ineffective assistance from counsel, which rendered both the guilt and sentencing phases of the trial unconstitutional. The court denies Bell's petition for post-conviction relief.

FACTS

¶ 2. On May 6, 1991, Robert C. "Bert" Bell was working as the store clerk at Sparks Stop-and-Go in Grenada County. That day Frederick Bell accompanied by Anthony Joe Doss, Robert Kennedy James, and Frank Coffey purchased beer and potato chips from Bert. The two Bells are not related. The four exited the store, sat at a nearby picnic table and talked. Planning to go to Memphis, Bell said that he needed money. Bell announced that he was going to rob the store and showed the group a .22 caliber pistol. Doss also had in his possession a gun, which turned out to be inoperable. Refusing to take part, James and Coffey departed the premises as the other two went back into the store. Minutes later, James and Coffey heard hollering accompanied by gunshots. When Bell and Doss caught up with the other two, they showed them items they had taken from the store, including a money bag, .38 caliber pistol and a box of bullets. Because he did not want any witnesses, Bell then threatened to kill James. Coffey and Doss stepped in to prevent this. Both James and Coffey testified that Bell said he shot Bert. Later that day, Bernard Gladney drove Bell, Doss, and Coffey to Memphis. On the way, Bell again stated that he wanted to kill James to prevent him from telling anyone about the murder.

¶ 3. Eventually, Bell was arrested in Memphis on another crime. Two guns were found in the house where he was arrested, a third was found in Gladney's vehicle. Leland H. Jones, III, represented Bell during both the trial and the direct appeal. During the trial, there was no direct testimony regarding what actually occurred inside the store. Bell maintained that he was in Memphis the day of the murder. However, there were no witnesses to corroborate his alibi. Both James's sister and Coffey's girlfriend testified that they saw Bell with Coffey, Doss and James the day of the murder.

¶ 4. The store owner, James Shelby Sparks, testified that a .38 caliber pistol (which was later recovered during Bell's arrest), a box of shells, and a money bag were taken from the store during the robbery. An autopsy revealed that Bert was shot several times. Ballistics tests showed that Bert was shot with the .38 and a smaller caliber gun, likely a .22 caliber.

¶ 5. Following the trial, on January 26, 1993, the jury found Bell guilty of capital murder and sentenced him to death. Bell, 725 So.2d at 841. This Court affirmed both the conviction and sentence. Bell, 725 So.2d 836. Bell now seeks relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2003).

DISCUSSION

¶ 6. Provided there is no procedural bar, when determining whether to grant leave to seek relief under the Act, the Court reviews application and determines if there is substantial showing of a denial of a state or federal right. Miss.Code Ann. § 99-31-27(5) (Rev.2000). See also Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990)

.

I. TIMELINESS

¶ 7. The State initially argues that Bell's petition is time barred according § 99-39-5(2), which requires that all petitions for post conviction relief "be made" within three-years after the Court's decision. Miss.Code Ann. § 99-39-5(2) (2000). Following direct appeal, the Court denied Bell's motion for rehearing on December 17, 1998. Relying on this, the State claims that the instant petition, filed on December 20, 2001, is time barred. Generally, the three-year deadline is measured from the date the mandate was issued, which in this case was December 28, 1998. See Puckett v. State, 834 So.2d 676, 677

¶ 6 (Miss.2002). Thus, the instant petition was filed several days before the deadline.

II. INEFFECTIVE ASSISTANCE OF COUNSEL AT CULPABILITY PHASE

¶ 8. To establish a claim for ineffective assistance of counsel the petitioner must prove that under the totality of circumstances (1) the counsel's performance was deficient and (2) the deficient performance deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Benson v. State, 821 So.2d 823, 825 ¶ 5 (Miss.2002); Burns v. State, 813 So.2d 668, 673 ¶ 14 (Miss.2001). "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." Burns v. State, 813 So.2d at 673 ¶ 14 (quoting Strickland, 466 U.S. at 686,104 S.Ct. at 2063).

¶ 9. With regard to the showing of deficient performance, the inquiry focuses on whether counsel's performance fell below an objective standard of reasonableness. Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000); Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. That is, consider whether the assistance was reasonable under all the circumstances seen from counsel's perspective at the time, and the prevailing professional norms for attorneys. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; Burns, 813 So.2d at 673 ¶ 14; Neal v. State, 525 So.2d 1279, 1281 (Miss.1988). Defense counsel is presumed competent, and because of the distorting effects of hindsight, there is a strong presumption that counsel's conduct is within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Burns, 813 So.2d at 673 ¶ 14.

¶ 10. Regarding the deprivation of a fair trial, the petitioner must show how counsel's errors prejudiced the defense. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067; Burns, 813 So.2d at 673-74 ¶ 14. The petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 691-94, 104 S.Ct. at 2066-68; Burns, 813 So.2d at 673-74. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

¶ 11. If the petitioner is challenging the conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. Id. If the petitioner is challenging the sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id.

¶ 12. In the instant case, we must consider whether the petition, affidavits, and trial record render it sufficiently likely that Bell received ineffective assistance of counsel so that an evidentiary hearing should be held. Neal, 525 So.2d at 1281. The application must pass both prongs. Id. Bell was represented by attorney Leland H. Jones, III, at the trial and on direct appeal. The trial court acknowledged that Jones is "one of the better attorneys, and one who is well known for his common sense understanding and application of the law . . ." Jones has represented numerous persons charged with criminal offenses at both the trial and appellate court levels, including several capital offense cases.

A. Cumulative Error.

¶ 13. Bell contends that counsel's cumulative ineffectiveness rendered the guilt phase of the trial unconstitutional. We will address this as a separate issue after reviewing each of the following claims.

B. Counsel's Qualifications.

¶ 14. Bell alleges that trial counsel was too inexperienced to try a capital case. Bell contends counsel's failure to satisfy the qualifications provide by M.R.A.P 22(d) creates a presumption of prejudice.¹

¶ 15. M.R.A.P. 22(d) sets forth the qualifications for attorneys representing petitioners in post-conviction matters and was adopted well after Bell's trial and direct appeal. See In Re: Mississippi Rules of Appellate Procedure-Rule 22, 735 So.2d XXIII (Miss.1999). Bell asks the Court to impose this heightened standard to trial counsel. This standard has never been imposed outside of its intended setting. This argument is without support and contradicts the presumption under Sixth Amendment jurisprudence.

¶ 16. Inexperience does not as a matter of law make counsel ineffective. Wiley v. State, 517 So.2d 1373, 1382 (Miss. 1987); see also United States v. Lewis, 786 F.2d 1278, 1281 (5th Cir.1986)

. The Court disagrees that trial counsel, Leland H. Jones, III, was too inexperienced and notes that prior to Bell's direct appeal, trial counsel had appeared before the Court several times, including two appeals involving murder convictions. See Holly v. State, 671 So.2d 32 (Miss.1996); Taylor v. State, 597 So.2d 192 (Miss.1992).

¶ 17. Bell emphasizes that trial counsel was working three death penalty cases simultaneously and claims that even the most...