Berry v. State, No. 2002-DR-00301-SCT.

• Citation: 882 So.2d 157
• Decision Date: 01 July 2004
• Docket Number: No. 2002-DR-00301-SCT.
• Parties: Earl Wesley BERRY v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

882 So.2d 157

Earl Wesley BERRY v. STATE of Mississippi.

No. 2002-DR-00301-SCT.

Supreme Court of Mississippi.

July 1, 2004.

Rehearing Denied September 30, 2004.

Office of Capital Post-Conviction Counsel by Terry L. Marroquin, Robert M. Ryan, William J. Clayton, attorneys for appellant.

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

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. Earl Wesley Berry was convicted of capital murder in the Circuit Court of Chickasaw County and sentenced as a habitual offender to death for the kidnaping and murder of Mary Bounds. On appeal, we affirmed the jury's verdict of guilty but vacated the death sentence and remanded for resentencing. Berry v. State, 575 So.2d 1 (Miss.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2042, 114 L.Ed.2d 126 (1991) ("Berry I").

¶ 2. On resentencing, due to the nature and the extent of pretrial publicity, venue was changed to the Circuit Court of Union County. Again he was sentenced to death. Berry v. State, 703 So.2d 269, 273 (Miss.1997) ("Berry II"). On appeal, we affirmed the sentence on all grounds except for the issue of jury selection under Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Berry II, 703 So.2d at 295. We remanded the case for a hearing on whether in exercising its peremptory challenges the State violated Batson.

¶ 3. Following the Batson hearing, the circuit court held that Berry failed to establish a prima facie case of purposeful discrimination and that the strikes made by the State were race neutral. We affirmed the circuit court's findings and denial of Berry's Batson motion. Berry v. State, 802 So.2d 1033, 1036 (Miss.2001) ("Berry III).

¶ 4. Subsequently Berry filed with this Court the instant Application for Leave to File Petition for Post-Conviction Relief. We find that the application is not well taken.

DISCUSSION

¶ 5. Provided there is no procedural bar, when determining whether to grant leave to seek relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, we determine if there is substantial showing of a denial of a state or federal right. Miss.Code Ann. § 99-31-27(5) (2000). See also Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990)

.

I. WHETHER TRIAL AND APPELLATE COUNSEL WERE CONSTITUTIONALLY INEFFECTIVE.

¶ 6. To establish a claim for ineffective assistance of counsel a 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 (Miss.2002); Burns v. State, 813 So.2d 668, 673 (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, 813 So.2d at 673 (citations omitted).

¶ 7. With regard to the showing of deficient performance, the inquiry focuses on whether counsel's performance fell below an objective standard of reasonableness. 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. Id. at 688, 104 S.Ct. 2052; Burns, 813 So.2d at 673; Neal v. State, 525 So.2d 1279, 1281 (Miss.1988). Because of the distorting effects of hindsight, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Burns, 813 So.2d at 673.

¶ 8. With regard to the showing of the deprivation of a fair trial, the petitioner must show how counsel's errors prejudiced the defense. Id. at 673-74. The petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. If the conviction is challenged, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. If the sentence is challenged, 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.

¶ 9. Berry cites several instances as illustrations of counsel's ineffectiveness. We must consider whether the petition, affidavits, and trial record render it sufficiently likely that he received ineffective assistance of counsel so that an evidentiary hearing should be held. Neal, 525 So.2d at 1281.

Failure to Obtain a Change of Venue for the Trial

¶ 10. Emphasizing the fact that a change of venue was granted for resentencing after Berry II, Berry claims that counsel should have secured a change of venue before the first trial in 1988. He also points to the fact that counsel presented only three witnesses at the hearing and argues that, since the State presented eleven witnesses, the defense's three witnesses were woefully inadequate.

¶ 11. Under Mississippi law, once a motion for change of venue which is supported by three affidavits is filed, a presumption arises that the defendant has been prejudiced by pre-trial publicity. If a defendant presents fifteen witnesses, an irrebuttable presumption of prejudice arises. See Fisher v. State, 481 So.2d 203 (Miss.1985)

; Johnson v. State, 476 So.2d 1195, 1213 (Miss.1985). Assuming, arguendo, that the failure to secure an irrebuttable presumption satisfied the first prong (deficiency) under Strickland, we find that Berry fails to show how such a failure deprived him of a fair trial. Accordingly, leave to seek post-conviction relief of this issue is denied.

Failure to Object to the Change of Venue for Resentencing

¶ 12. Berry contends that trial counsel was ineffective for failing to object to the change of venue to Union County, which has a twenty percent fewer African-Americans than Chickasaw County. Berry, a Caucasian, fails to discuss how the county's racial composition impacted his rights or potential jurors' rights. We considered this issue in Berry II and found it to be procedurally barred. Berry II, 703 So.2d at 292. "Our case law is clear in that there is no constitutional right to be tried by a jury that absolutely mirrors any particular community." Simon v. State, 688 So.2d 791, 806 (Miss.1997). This issue is without merit.

Failure to Object to the State's Improper Remarks on Credibility

¶ 13. Berry contends that the State improperly bolstered the credibility of Billy Gore, an investigator for the highway patrol. We discussed this issue in Berry I and found it to be procedurally barred. Berry I, 575 So.2d at 9. In doing so, we went on to say that "[s]ubstantively, broad latitude is afforded [ ] attorneys in closing argument, and the prosecutor did not exceed the limits of the argument in this case." Id. Though not asked to admonish the jury regarding such comments, the circuit court instructed the jury that the testimony of a police officer is entitled to no special or exclusive sanctity. Id.

¶ 14. Considering such instructions and bearing in mind that the decision whether to make certain objections falls within the ambit of trial strategy, we find that this issue is without merit. See generally Jackson v. State, 815 So.2d 1196, 1200 (Miss.2002)

.

Failure to Object to Testimony about Berry's Status as a Habitual Offender

¶ 15. On resentencing during voir dire, the circuit court disclosed that Berry was a habitual offender and later included such fact in the sentencing instructions. Berry claims that in both instances counsel was ineffective by failing to object. Berry fails to clearly define how this issue impacts his ineffective assistance of counsel claim.

¶ 16. We addressed this issue in Berry I and held that in a capital case, before considering sentencing options, a jury should be informed that the defendant has been adjudicated as an habitual offender. Berry I, 575 So.2d at 13-14. Actually, resentencing was ordered because the circuit judge failed to instruct the jury that Berry was an habitual criminal. Id. at 13. This issue is without merit.

¶ 17. Berry's argument seemingly hinges on the fact that his status was disclosed during voir dire, rather than just prior to deliberations. The record reveals that the circuit court worked diligently to follow the Court's holding in Berry I. Finding that the circuit court reasonably applied the holding Berry I, there was no cause for defense counsel to object. Likewise, as for the inclusion in the sentencing instructions, we find that the circuit court sought to comply formally with our holding in Berry I.

Failure to Object to Hearsay Testimony

¶ 18. Berry contends that trial counsel failed to object to the hearsay testimony of the Oktibbeha County Sheriff Dolph Bryan, a witness for the State. During resentencing, Sheriff Bryan testified as to Berry's previous conviction of simple assault of law enforcement officer Jimmy McClemore. Berry claims that counsel allowed the Sheriff, though not a witness to the attack, to testify regarding specific facts of the incident. This issue is without merit.

¶ 19. During the assault, Berry was shot by Officer McClemore. Trying to undermine the conviction, the defense cross-examined the Sheriff regarding Berry's successful civil suit against Officer McClemore in federal court.¹ On redirect, Sheriff Bryan briefly testified as to Officer McClemore's physical size and his reasons for shooting Berry.

¶ 20. Berry fails to discuss how counsel's failure to object supports his...