Brown v. State

• Decision Date: 31 May 2012
• Docket Number: No. 2010–CA–01246–SCT.,2010–CA–01246–SCT.
• Citation: 88 So.3d 726
• Parties: Joseph Patrick BROWN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

88 So.3d 726

Joseph Patrick BROWN

v.STATE of Mississippi.

No. 2010–CA–01246–SCT.

Supreme Court of Mississippi.

March 22, 2012.

Rehearing Denied May 31, 2012.

James W. Craig, attorney for appellant.

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

EN BANC.

WALLER, Chief Justice, for the Court:

¶ 1. In 1994, Joseph Patrick Brown (a.k.a. Peanut Brown) was convicted of capital murder for shooting a convenience-store clerk to death on August 8, 1992, during the commission of an armed robbery. Brown was sentenced to death by lethal injection. His conviction and sentence were affirmed by this Court in Brown v. State, 682 So.2d 340 (Miss.1996). Pamela Farrington and Donald Ogden represented Brown at trial and on direct appeal. On March 17, 1998, Brown filed an application for post-conviction relief, which this Court granted, in part, for the sole purpose of determining whether Brown's trial counsel was ineffective for failing to seek an independent psychological evaluation of Brown for use as mitigation evidence. Brown v. State, 749 So.2d 82, 93 (Miss.1999). A special judge, appointed to hear the matter, denied Brown's petition for post-conviction relief, and Brown now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following statement of facts is taken from this Court's opinion in Brown v. State, 682 So.2d 340, 343–44 (Miss.1996):

[D]uring the late evening hours of Friday, August 7, 1992 and the early morning hours of Saturday, August 8, 1992, Brown and his girl-friend at the time, Rachel Walker (“Walker”), were cruising the area of Natchez, Mississippi, looking for drugs. Brown and Walker bought and smoked crack cocaine at several locations during that time period.

In the early hours of August 8, Brown turned the vehicle he was driving into the lot of the Charter Food Store located on Highway 61 South in Natchez, Mississippi, and stopped the vehicle next to the gas pumps. Walker, remaining in the vehicle, observed Brown pump gas into the vehicle and then walk into the store. While Brown was inside the store, Walker observed him walk around briefly and then approach the counter where the cash register and clerk were located. While Brown was at the counter, Walker observed the clerk, Martha Day (“Day”), grab her chest, turn and fall to the floor. Walker didn't see Day again. It was later to be discovered that Day was killed during an apparent robbery at approximately 2:45 a.m. Day was shot four times—once in the head, once through the heart, and twice in the back.

Walker observed Brown exit the store carrying a cash register among other items. Brown returned to the vehicle and placed the cash register and a handgun on the front seat. Upon entering the vehicle, Brown allegedly told Walker, “You better not move, and you better not say anything. If you love me you won't say anything.” Brown started the vehicle and Brown and Walker headed into town.

...

Throughout the morning of August 8 and continuing that day and the next, Walker, an eye-witness to the robbery, made several calls to the Natchez Police Department attempting to tell them about the incident at Charter Food Store. Within twenty-four hours of the robbery, the police received information that a .22 caliber handgun had been pawned by Walker; and approximately forty-eight hours after the robbery, the police recovered a two-dollar bill with a serial number matching that of the one kept in the cash register at the Charter Food Store. The serial number had been noted in an effort to aid police in their investigation in case of a robbery at the store. Walker proved to be the source of that two-dollar bill. With this information, the police began searching for Walker and Brown. On August 11, 1992, they were spotted; both Walker and Brown attempted to elude police by fleeing and hiding. When confronted by the police, Brown blurted out, “You got me for driving the car.” Brown and Walker were arrested and charged with the murder of Day.

...

While incarcerated in the Adams County Jail, Brown allegedly confided to a fellow inmate, Larry Bernard (“Bernard”), that he took the cash register from the Charter Food Store and that he shot Day three or four times. Bernard notified the Adams County Sheriff's Department of Brown's communication. Testimony revealed that Bernard received no favorable treatment or special consideration for his testimony at trial.

Walker, an ex-girlfriend, eye-witness and accessory after the fact, testified for the State. Through her testimony, the cash register, two-dollar bill and handgun were linked to Brown. Walker's testimony also placed Brown at the scene of the crime as the triggerman. Walker's testimony was corroborated by a fellow inmate of Brown and the State's ballistics expert, in addition to Brown's own incriminating statements made in writing to Walker while incarcerated.

A jury ... found Brown guilty as charged and returned a verdict that Brown suffer death.

Brown, 682 So.2d at 343–44. At the sentencing phase of the trial, Brown's attorneys presented a case in mitigation by calling four witnesses and submitting a 1984 report from the Louisiana Juvenile Reception and Diagnostic Center which characterized Brown as a nonviolent individual with emotional problems. At defense counsel's request, the trial court had ordered Brown evaluated at the Mississippi State Hospital at Whitfield specifically for the purpose of developing mitigating evidence pursuant to Mississippi Code Section 99–19–101(6) (Rev.2007). Defense counsel later reported that “[t]he Defendant was evaluated at Whitfield for the purposes of mitigation defense. On the basis that the staff at Whitfield could not assist in any mitigation defense, no written reports were ever submitted.” At the conclusion of evidence, Brown was sentenced to death by lethal injection. Id. at 344.

¶ 3. On direct appeal, this Court affirmed Brown's conviction and sentence. Id. at 357. Brown then filed an application with this Court for leave to file a petition for post-conviction relief. This Court granted Brown's application, in part, only as to the issue of ineffective assistance of counsel, based on counsel's alleged failure to seek an independent mental evaluation to be used for mitigation. Brown v. State, 749 So.2d 82, 93 (Miss.1999). This Court appointed Judge Isadore W. Patrick to hear the matter. On November 20, 2009, Judge Patrick issued an opinion denying Brown's petition for post-conviction relief, holding that Brown's trial counsel had not acted deficiently so as to satisfy a claim of ineffective assistance. Brown now appeals this decision.

ISSUES

¶ 4. Brown raises two issues ¹ on appeal:

I. Whether the circuit court erred by not granting Brown's motion for discovery under Mississippi Rule of Appellate Procedure 22.

II. Whether the circuit court erred by finding that Brown's trial counsel's failure to secure an expert report and/or expert mental health testimony on mitigating circumstances did not constitute “deficient performance” under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny.

STANDARD OF REVIEW

¶ 5. “When reviewing a lower court's decision to deny a petition for post convictionrelief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous.” Doss v. State, 19 So.3d 690, 694 (Miss.2009). This Court reviews discovery matters for abuse of discretion. Ford Motor Co. v. Tennin, 960 So.2d 379, 390 (Miss.2007); see also Howard v. State, 945 So.2d 326, 361 (Miss.2006) (reviewing trial court's denial of post-conviction petitioner's discovery request for abuse of discretion).

DISCUSSION

I. Brown was not improperly denied discovery.

¶ 6. Brown claims he was denied ² discovery under Mississippi Rule of Appellate Procedure 22(c)(4)(ii). This rule says that, upon appointment of counsel to represent the petitioner, or upon the petitioner retaining private counsel, the petitioner's trial and appellate counsel shall make available their complete files relating to the conviction and sentence. M.R.A.P. 22(c)(4)(ii). It also requires the State to make available “the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner.” Id. Brown says that he never received these files, and that the trial court erred in denying his motion for their production.

¶ 7. Section (c)(4) of Rule 22 governs matters “Preliminary to Proceedings in the Supreme Court.” M.R.A.P. 22(4). Section (c)(4)(ii) of Rule 22 is intended to allow a petitioner to gather information to support an application to the Supreme Court for leave to file a motion for post-conviction relief in the trial court. See Russell v. State, 819 So.2d 1177, 1178–79 (Miss.2001). If this Court grants such an application and directs its filing in the trial court, the proceedings are then governed by Mississippi Code Sections 99–39–13 through 99–39–23. Miss.Code Ann. § 99–39–27(7)(b) (Rev.2007). And under Section 99–39–15, a petitioner is allowed discovery “available under the Mississippi Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Miss.Code Ann. § 99–39–15 (Rev.2007) (emphasis added); see also Roland v. State, 666 So.2d 747, 751 (Miss.1995) (stating that a petitioner is entitled to discovery under Section 99–39–15 “upon good cause shown and in the discretion of the trial judge”) (quoting Fleming v. State, 553 So.2d 505 (Miss.1989)).

¶ 8. Once this Court granted, in part, Brown's application, Section (c)(4)(ii) of Rule 22 no longer provided the mechanism for discovery. After remand to the trial court for an evidentiary hearing, Brown could seek discovery pursuant to only Section 99–39–15. This section gives the trial judge discretion in granting or...