Burns v. State

• Decision Date: 11 October 2001
• Docket Number: No. 1999-DR-01392-SCT.,1999-DR-01392-SCT.
• Parties: Joseph Daniel BURNS a/k/a "JoJo" Burns, v. STATE of Mississippi.
• Court: Mississippi Supreme Court

813 So.2d 668

Joseph Daniel BURNS a/k/a "JoJo" Burns, v. STATE of Mississippi.

No. 1999-DR-01392-SCT.

Supreme Court of Mississippi.

October 11, 2001.

Rehearing Denied April 18, 2002.

Michael Adelman, Hattiesburg, Attorney for Appellant.

Office of the Attorney General by Judy T. Martin, Attorney for Appellee.

EN BANC.

STATEMENT OF THE CASE

PITTMAN, C.J., for the Court:

¶ 1. Joseph Daniel Burns a/k/a JoJo Burns was convicted of the capital murder of Floyd Melvin McBride in Lee County in 1996. After the sentencing phase, Burns was sentenced to death by lethal injection. Burns's conviction and sentence were affirmed by this Court in Burns v. State, 729 So.2d 203 (Miss.1998). This Court denied the motion for rehearing on January 28, 1999. The United States Supreme Court denied Burns's petition for writ of certiorari on June 24, 1999. Burns v. Mississippi, 527 U.S. 1041, 119 S.Ct. 2406, 144 L.Ed.2d 804 (1999). Burns's motion for rehearing was denied on August 23, 1999. Burns v. Mississippi, 527 U.S. 1059, 120 S.Ct. 26, 144 L.Ed.2d 830 (1999).

¶ 2. Burns filed his Pro Se Petition for Post-Conviction Relief on August 23, 1999. Thereafter, in accordance with Jackson v. State, 732 So.2d 187 (Miss.1999), this Court remanded the post-conviction proceedings to the Lee County Circuit Court for appointment of qualified counsel to represent Burns. Counsel has been appointed and has filed a Supplemental Application for Post Conviction Relief which is presently before the Court.

FACTS AND PROCEEDINGS BELOW

¶ 3. On November 10, 1994, the body of Floyd Melvin McBride, the manager of the Town House Motel in Tupelo, was found in the motel residence where he lived. The manager's residence was connected to the office. McBride had been beaten and stabbed until he bled to death. The motel's money box had been pried open and its contents had been taken. The initial investigation of the murder was fruitless. However, several months after the crime, law enforcement authorities received telephone calls from anonymous persons who implicated Jo Jo Burns, Phillip Hale and Jeff Hale. Upon questioning, Phillip Hale told officers that he and Burns had robbed the motel and that Burns had killed McBride. Burns and Hale were indicted for the capital murder of McBride. The cases were severed for trial.

¶ 4. Phillip Hale testified at Burns's trial that he and Burns had gone to see McBride at the motel. McBride was an acquaintance of Hale's. While there, McBride asked if the two wanted to help him count the motel's cash. Hale and Burns then decided to rob McBride. Hale testified that he struck McBride and knocked him down. He then left the room to find the money or to see if anyone was coming. When he returned, he saw Burns stabbing McBride with a knife, a screwdriver, and a fork. The two then pried open the cash box, took the money, wiped away their fingerprints and left the motel.

¶ 5. Several witnesses testified that they had seen a light brown or tan older model truck parked in front of the motel on the night of the crime. Jeff Hale owned a mid 1960's Ford pickup truck. His brother Phillip was driving the truck at the time of the murder. Jeff Hale testified that Burns and Phillip had discussed the murder with him several days later. He stated that Burns told him that he had killed McBride because he did not want to leave any witnesses. Both Hale brothers and Burns went to Tunica where they gambled with the cash taken from the motel.

¶ 6. Janie Taylor, Burns's girlfriend who was living with Burns and Phillip Hale at the time of the crime, testified that Burns and Hale had come home at 3 or 4 a.m. on November 10 with $3,000 in cash which Burns and Hale had split. She testified that Burns had admitted to her that they had killed a man at the motel. She also stated that she had later seen Burns in a car with Carrie Cryder. Burns had a bundle which appeared to be several tools wrapped in the shirt he had worn on the night of the crime. Cryder testified that he had been riding around with Burns several weeks after the murder when Burns had gone into the weeds behind his trailer and had returned with a package or a bag. Cryder testified that Burns later had him stop near a bridge, that Burns took the package with him toward the bridge and later returned to the car without it.

¶ 7. The State went to great effort to show that Burns had written two incriminatory letters to a female inmate while he was also in the Lee County jail. In one of those letters to Contina Kohlheim, Burns wrote that "I took a man's life and now I'm looking at the death penalty." In another letter to Kohlheim, Burns wrote "Look, about the guy I killed, me and Phillip were dealing with a lot of dope and Phillip was giving our dope up front to this guy. He had owed us 58,000 dollars. I told Phillip to ask him one more time to pay us but he never did. So that night we went to the town house and I killed his ass." Burns was not charged with any other murder and no one else had been killed at the Town House motel. A Lee County jail trusty testified that Burns had given letters to him to deliver to a female trusty who was to give them to Kohlheim. Kohlheim testified that a female trusty had given the letters to her. ¶ 8. After obtaining the letters, the district attorney sought to compare the handwriting to a known sample of Burns's writing. To obtain a sample of Burns's writing, the sheriff falsely told Burns that he needed a list of all people Burns wanted to be listed as his possible visitors. The State's handwriting expert compared the known Burns samples and the letters to Kohlheim and testified that there was a "strong probability" that the writer was the same person. Additionally, Burns's fingerprints were lifted from both letters.

¶ 9. Burns called only one witness. Olen Harbin testified that he had been at the Town House on the night of the crime and that he had seen the tan truck drive up. He testified that he thought that a man and a woman had been in the truck. He also testified that he called the front desk and a strange woman answered the phone. The defense argued that Janie Taylor had been with Phillip Hale and that Hale had killed McBride.

¶ 10. The jury returned a verdict of guilty of capital murder. Before the sentencing phase began, the defense informed the judge that it did not intend to present any witnesses during the sentencing phase. The judge questioned Burns about that decision outside the presence of the jury. Burns stated that he understood that he had the right to call witnesses or testify himself. The judge asked if the decision not to call witnesses was his and Burns replied affirmatively. The State chose not to call witnesses and resubmitted all of the evidence from the guilt phase. The defense offered by stipulation the fact that Burns was 26 years old at the time of the crime. After closing arguments, the jury deliberated two and a half hours before returning a verdict in the sentencing phase. The jury specifically found that Burns actually killed McBride, that he attempted to kill McBride, that he intended that the killing would take place, and that he contemplated that lethal force would be used. Finally, the jury found that there were insufficient mitigating circumstances to outweigh the aggravating circumstances and sentenced Burns to death.

¶ 11. Burns's direct appeal was affirmed by this Court in Burns v. State, 729 So.2d 203 (Miss.1998). Presently before the Court are the pro se Petition for Post-Conviction Relief and the Supplemental Application for Post-Conviction Relief filed by counsel for Burns.

ANALYSIS

¶ 12. Burns's attorney raises ten issues in the supplemental petition:

I. INEFFECTIVE ASSISTANCE IN TRIAL COUNSEL'S FAILURE TO INSURE THAT BENCH CONFERENCES WERE RECORDED.

II. INEFFECTIVE ASSISTANCE IN ALLOWING JURY SELECTION TO TAKE PLACE DURING A RECESS.

III. INEFFECTIVE ASSISTANCE IN FAILING TO SUPPORT THE DEFENDANT'S MOTION FOR A PSYCHIATRIC EVALUATION.

IV. INEFFECTIVE ASSISTANCE IN FAILING TO WAIVE THE PRESENCE OF THE DEFENDANT AT THE DRAWING OF THE SPECIAL VENIRE.

V. INEFFECTIVE ASSISTANCE IN FAILING TO OBJECT TO THE TRIAL COURT'S INSTRUCTION ALLOWING ONLY TWO SENTENCING OPTIONS: DEATH OR LIFE WITHOUT PAROLE.

VI. INEFFECTIVE ASSISTANCE IN PRESENTING AN INADEQUATE

OPENING ARGUMENT.

VII. INEFFECTIVE ASSISTANCE AT THE SENTENCING PHASE.

VIII. INEFFECTIVE ASSISTANCE IN PRESENTING THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR A NEW TRIAL.

IX. INEFFECTIVE ASSISTANCE ON DIRECT APPEAL.

X. THE HANDWRITING EXEMPLARS WERE TAKEN IN VIOLATION OF BURNS'S CONSTITUTIONAL RIGHTS AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

¶ 13. In his pro se petition, Burns raises five claims:

I. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

II. INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE SENTENCING PHASE.

III. INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL.

IV. FAILURE OF THE STATE TO REVEAL ALL EXCULPATORY EVIDENCE.

V. OTHER UNKNOWN FACT BASED CLAIMS.

¶ 14. The majority of the issues presented relate to claims of ineffective assistance of counsel. Burns was represented at trial by Melvin Ellis, III, and William Bristow. On appeal, he was represented by Ellis and Wayne Housley. 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, 104 S.Ct. 2052. "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...