Bishop v. State, 2000-DP-00341-SCT.

• Decision Date: 14 February 2002
• Docket Number: No. 2000-DP-00341-SCT.,2000-DP-00341-SCT.
• Citation: 812 So.2d 934
• Parties: Dale Leo BISHOP v. STATE of Mississippi.
• Court: Mississippi Supreme Court

812 So.2d 934

Dale Leo BISHOP v. STATE of Mississippi.

No. 2000-DP-00341-SCT.

Supreme Court of Mississippi.

February 14, 2002.

Rehearing Denied April 11, 2002.

David Lee Daniels, Tupelo, Attorney for Appellant.

Office of the Attorney General by: Marvin L. White, Jr., Judy T. Martin, Attorneys for Appellee.

EN BANC.

WALLER, J., For The Court.

¶ 1. Marcus James Gentry was brutally murdered on a dirt road in Lee County, Mississippi, not far from the town of Saltillo on the night of December 10, 1998. Dale Leo Bishop and Jessie Dewayne Johnson were indicted by a Lee County Grand Jury for capital murder. The two defendants were tried separately. A jury found Bishop guilty of capital murder, with the underlying felony being kidnaping. Bishop and the State waived a jury trial as to sentencing. At sentencing, the circuit judge, finding beyond a reasonable doubt that Bishop contemplated that lethal force would be used and that the especially heinous, atrocious or cruel aggravating circumstance was proven, sentenced Bishop to death. We affirm the judgment of the Lee County Circuit Court.

FACTS¹

¶ 2. 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.

¶ 3. On the way back, Jessie, who was seated in the front passenger seat, asked Gentry why he "narced" or "ratted on" his little brother.² Gentry denied doing so. Jessie said, "Yeah, you did," then reached down to the floorboard, grabbed a hammer and hit Gentry between the eyes.³ 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.⁴ 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.

¶ 4. 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.

¶ 5. 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.

¶ 6. 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."

DISCUSSION

Standard of Review

¶ 7. We review capital murder convictions where a sentence of death has been imposed with heightened scrutiny "under which all bona fide doubts are resolved in favor of the accused." Flowers v. State, 773 So.2d 309, 317 (Miss.2000) citing Porter v. State, 732 So.2d 899, 902 (Miss. 1999) (quoting Williamson v. State, 512 So.2d 868, 872 (Miss.1987)). "What may be harmless error in a case with less at stake [may become] reversible error when the penalty is death." Id.

I. WHETHER THE TRIAL COURT ERRED FAILING TO FOLLOW RULE 9.08 OF THE UNIFORM CIRCUIT AND COUNTY COURT RULES.

¶ 8. UCCCR 9.08 requires that an omnibus hearing be held at least 3 days prior to the trial in order to ensure that the defendant is represented by counsel, to determine if any additional discovery is needed, to rule on any pending motions, to ascertain if constitutional or procedural issues exist, and to give the defendant an opportunity to change his or her plea. ¶ 9. Bishop contends that the circuit court erred by having the omnibus hearing one day before trial and that the violation of the rule, aggregated with the circuit court's refusal to grant a continuance, constitutes reversible error. In support of his argument, Bishop cites Inman v. State, 515 So.2d 1150, 1153 (Miss.1987), where we found that the denial of Inman's motion for continuance, coupled with the trial court's failure to conduct a timely omnibus hearing (the hearing was held one day prior to trial), was reversible error.

¶ 10. However, critical to the decision to reverse in Inman was the failure of the State to provide witness statements until the omnibus hearing, the day before trial, even though this information had been requested two months before. Id. at 1153. Upon learning of the undisclosed witness statements, defense counsel moved for a continuance, which request was denied. In Inman, we do not know what impact a timely omnibus hearing may have had, but the production of undisclosed witness statements the day before trial compromised Inman's defense.

¶ 11. A violation of the three-day protective window provided by UCCCR 9.08 alone is not reversible error. Bishop has failed to demonstrate any actual prejudice that resulted from the failure of the circuit court to hold a timely omnibus hearing, and this claim is without merit.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT FUNDS FOR AN INDEPENDENT PSYCHOLOGICAL EXPERT TO HELP DEVELOP AND PRESENT MITIGATION EVIDENCE.

¶ 12. Bishop argues that the circuit court erred in not allowing funds to hire an independent psychological expert. He sought to employ Joe Ed Morris to develop psychological mitigation evidence from mental and emotional problems purportedly suffered by Bishop from childhood.⁵ He informed the circuit court that the psychologist would investigate and testify for a fee of $2500.

¶ 13. The circuit court denied the motion because it had previously granted Bishop's motion for a competency evaluation and ordered that Bishop be evaluated by the Mississippi State Hospital at Whitfield. At the hearing on the motion for appointment of a psychological expert, the circuit court noted Bishop was found to be competent to stand trial and assist his attorney, and that it was further determined that he appreciated the difference between right and wrong at the time of the murder. The report from the State Hospital was not made an exhibit, and we can only assume no issue exists as to the findings on this issue that were made on the record by the circuit court. Finally, Bishop did not assert insanity as a defense.

¶ 14. A defendant is not entitled to a psychological expert where he has not raised insanity as a defense or where the State does not plan to submit psychological evidence against the defendant. Ladner v. State, 584 So.2d 743, 757 (Miss.1991); Nixon v. State, 533 So.2d 1078, 1096 (Miss. 1987). As we have stated, "[w]here a defendant offers no more `than undeveloped assertions that the requested assistance would be beneficial,' no trial court is under an obligation to provide him with fishing equipment." Griffin v. State, 557 So.2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985)).

¶ 15. Bishop did not raise an insanity defense; he offered no facts which would show that there was a need to develop mitigating evidence based on psychological problems; and he underwent a thorough psychological evaluation performed at the State Hospital which produced no mitigating evidence.

¶ 16. We therefore find that Bishop was not entitled to a psychological expert for the purpose of developing mitigating evidence.

III. WHETHER THE CIRCUIT JUDGE ERRED IN FAILING TO RECUSE HIMSELF.

¶ 17. Bishop argues that Circuit Judge Barry Ford, who merely ruled on pre-trial motions and did not preside over the trial, should have recused himself because he represented Bishop on unrelated charges while serving as a public defender. Bishop alleges that during that representation, he and Judge Ford got into an altercation and that this prior relationship caused Judge Ford to be biased against Bishop.

¶ 18. Bishop has presented no evidence that Judge Ford was connected to any of the parties by affinity or consanguinity. See Green v. State, 631 So.2d 167, 177 (Miss.1994)

(citing Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991)). Canon 3(C)(1) of the Code of Judicial Conduct requires disqualification of a judge when "his impartiality might reasonably be questioned, including but not limited to instances where ... `he has a personal bias or prejudice concerning a party....'" A judge...