Bishop v. State, 2002-DR-00932-SCT.

• Decision Date: 01 July 2004
• Docket Number: No. 2002-DR-00932-SCT.,2002-DR-00932-SCT.
• Citation: 882 So.2d 135
• Parties: Dale Leo BISHOP v. STATE of Mississippi.
• Court: Mississippi Supreme Court

882 So.2d 135

Dale Leo BISHOP v. STATE of Mississippi.

No. 2002-DR-00932-SCT.

Supreme Court of Mississippi.

July 1, 2004.

Rehearing Denied September 23, 2004.

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

Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., attorneys for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. Dale Leo Bishop was convicted of the crime of capital murder, with the underlying felony of kidnaping, and sentenced to death. Bishop's conviction and sentence were affirmed by this Court in Bishop v. State, 812 So.2d 934 (Miss.2002), cert. denied, 537 U.S. 976, 123 S.Ct. 468, 154 L.Ed.2d 335 (2002). This Court's mandate issued on April 18, 2002. Bishop, represented by the Mississippi Office of Capital Post-Conviction Counsel (MOCPCC), has now filed his Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief. The State has filed its response in opposition to the motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following statement of facts is taken from this Court's opinion in Bishop v. State, 812 So.2d 934 (Miss.2002):

FN1. Bishop did not testify at trial. He did give a detailed statement to the police on December 13, 1998, which statement was admitted into evidence.

About 10:30 p.m. on the evening of December 10, 1998, Gentry, Bishop, Jessie Johnson, Cory Johnson, and Charlie Rakestraw went to Ricky Myhand and Rachel Dobbs's apartment in Saltillo. Jessie, Bishop's co-defendant, and Cory were brothers. After drinking a couple of beers, Jessie decided to go to a store for more beer and asked Myhand to go along. Gentry, who had driven his vehicle to Myhand's apartment, drove Jessie, Bishop and Myhand to the store. Upon reaching their destination, they discovered that the store was closed, so Gentry turned around and headed back toward Myhand's apartment.

On the way back, Jessie, who was seated in the front passenger seat, asked Gentry why he "narced" or "ratted on" his little brother.[FN2] Gentry denied doing so. Jessie said, "Yeah, you did," then reached down to the floorboard, grabbed a hammer and hit Gentry between the eyes.[FN3] The car coasted to a stop and Gentry begged Jessie not to hit him again. Bishop, who was seated behind Gentry, grabbed Gentry in a headlock and hit him. While he was being held, Jessie struck Gentry in the head again with the hammer.[FN4] Bishop and Jessie next made Gentry move over into the front passenger's seat, and Jessie began driving. He turned off the road and went down a little field road. When Jessie stopped the vehicle, Gentry jumped out of the car and ran. Jessie told Bishop to catch him.

FN2. In his statement given to the police, Bishop said Jessie was upset at Gentry for ratting on his brothers. As a result of the "ratting," Bishop believed that Jessie's little brothers were charged with some serious crimes. "Mark [Gentry] had instigated his brothers' getting about 9 or 10 counts of grand larceny and burglary."

FN3. In his statement given to the police, Bishop, whose life-long vocation was being a carpenter, admitted the hammer belonged to him and went into some detail describing its characteristics. He stated that carpenter's hammers normally used in Mississippi weighed 20 to 22 ounces. He stated, "[The hammer owned by Bishop and used to hit Gentry] is a 28 ounce Vaughn [? ? ? not sure if Vaughn is correct] [sic] California framing straight claw." He indicated that his hammer was not available for purchase in Mississippi. When asked by the police about how he came about bringing a hammer with him when he went riding with Gentry, he admitted using a false pretense:

BY BISHOP: Well, when the trip originally began, the excuse was that I was going to go work on my truck and I use the hammer to work on my truck.

BY THE POLICE: Is that true?

BY BISHOP: That's just how we got the usage of the car to begin with.

FN4. There is some discrepancy in the chain of events. In his statement, Bishop indicated that Jessie initially "decked Gentry with his hands." Then Bishop grabbed Gentry and Jessie hit him "probably just twice" with the hammer.

After about five minutes Bishop came back with Gentry and forced him to get on his knees in front of the car. Bishop and Jessie began kicking Gentry. Jessie struck Gentry numerous times with the hammer. At one point Myhand was asked to hold Gentry while Bishop retrieved beers for himself and Jessie. In response, Myhand begged Jessie to stop. When they finished, Bishop had to dislodge the hammer from Gentry's throat, and then he and Jessie drug Gentry into the bushes. While returning to Myhand's apartment, Jessie and Bishop discussed finding a shovel with which to bury Gentry. At Myhand's apartment, Jessie and Bishop washed off and changed into some clean clothes given to them by Myhand.

When Bishop, Jessie, Cory and Rakestraw finally left the apartment, Myhand and Dobbs called the police. Myhand took the officers to the site of the murder, and Gentry's body was recovered. Gentry's car was there, and a shovel was found nearby. Bishop and Jessie apparently fled the scene when the police car pulled up. They hid out in the woods until they were apprehended on December 13, 1998.

Steven Hayne, M.D., a forensic pathologist who conducted the autopsy on Gentry's body, testified that there were 23 injuries to the head, neck and hand which were produced either by a blunt object with enough force to break or tear the skin, or with a sharp object such as the edge of a claw hammer. These injuries did not include bruises or scrapes which could have been produced from being kicked. Injuries to the hands, forearms and fingers were consistent with defensive posturing by Gentry. According to Dr. Hayne, "Mr. Gentry died from cranial cerebral trauma, secondary to blunt force trauma to the head, and he also died from lacerations, tears of the voice box, with aspiration of blood."

Bishop, 812 So.2d at 937-38.

¶ 3. This Court's mandate in Bishop's direct appeal issued on April 18, 2002. The statute of limitations for filing Bishop's application for post-conviction relief expired on April 18, 2003, the date the present post-conviction relief petition was filed. See Puckett v. State, 834 So.2d 676, 677-78 (Miss.2002). Included with his motion to proceed in the trial court, Bishop also filed a motion to supplement and/or amend the present petition. The State strongly objected. By order entered on May 16, 2003, this Court denied Bishop's motion to supplement or amend the petition. This Court noted that "Bishop ... offered nothing to support his motion to supplement or amend the application." The order stated, "that absent any compelling reasons or circumstances, the Court intends to follow the prescribed time lines."

¶ 4. In his petition, Bishop asserts the following grounds for relief:

I. The Petitioner was denied his Sixth Amendment right to effective assistance of counsel at the guilt and sentencing phases of the trial within the meaning of Strickland v. Washington, and corresponding portions of the Mississippi Constitution.

II. Petitioner's Eighth Amendment rights were violated by the imposition of a sentence of death which was constitutionally defective in light of Tison v. Arizona.

III. The errors and omissions of the trial judge at the sentencing denied Bishop of fundamental constitutional rights as guaranteed under the United States and Mississippi Constitutions.

IV. The trial court erred in charging the trial jury with State requested instruction 10 as the same is an incorrect statement of the law of the State and as a result, Bishop was unfairly prejudiced and denied a fundamentally fair trial.

V. Bishop is mentally retarded as contemplated in the United States Supreme Court case of Atkins v. Virginia and the Eighth Amendment forbids the execution of the mentally retarded.

VI. Introduction of the 911 Audio Tape was in error.

VII. Bishop asserts that his death sentence was disproportionately imposed.

VIII. Bishop was denied his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of the Federal Constitution and Mississippi Law due to the cumulative effect of the errors at his capital trial.

¶ 5. The State has filed its response in opposition to the petition and Bishop has filed a reply to the State's response. The State has also filed a Motion to Strike Exhibits and Appendices to and Portions of Petitioner's Reply Brief, which will be addressed below.

ANALYSIS

I. Whether Bishop was denied his Sixth Amendment right to effective assistance of counsel at the guilt and sentencing phases of the trial within the meaning of Strickland v. Washington, and corresponding portions of the Mississippi Constitution.¹

¶ 6. This Court has stated the following regarding ineffective assistance of counsel:

The standard for determining if a defendant received effective assistance of counsel is well settled. "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). A defendant must demonstrate that his counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. "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 v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.

Burns v. State, 813 So.2d 668, 673 (Miss.2001) (emphasis in original)....