Carson v. State
| Decision Date | 17 November 2016 |
| Docket Number | NO. 2013–KA–02011–SCT,2013–KA–02011–SCT |
| Parties | Robert CARSON a/k/a Bay Bay v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN, ATTORNEY FOR APPELLANT
OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶ 1. A jury convicted Robert Carson of capital murder, being a felon in possession of a firearm, and conspiracy to commit armed robbery, all of which arose from the shooting death of Juan Ortiz during an armed robbery in Madison County on April 30, 2012. Carson received a life sentence without the possibility of parole for his capital-murder conviction, a ten-year sentence for being a felon in possession of a firearm, and a five-year sentence for conspiracy to commit armed robbery. On appeal, Carson argues that his trial counsel was ineffective for failing to request an instruction regarding the unreliability of accomplice testimony and that there is a "reasonable probability" that there would have been a different outcome at trial if counsel had requested the instruction. He also argues that he was entitled to receive his proposed instruction D–6. We find his arguments to be without merit and affirm.
FACTS AND PROCEEDINGS BELOW 1
¶ 2. On April 30, 2012, Robert Carson, Bobby Allen, and Edward Earl Clay spent the day together at the apartment of Crystal Brent, Carson's cousin, barbecuing on the grill, smoking cigarettes and marijuana, and consuming codeine and beer. Between seven and eight o'clock that evening the men ran out of money for cigarettes and beer, so they decided to go out and "hit a lick," meaning rob someone at gunpoint.
The men got into a grey rental car, drove to Ridgeland, and started driving around apartment complexes looking for someone to rob. Both Carson and Clay were carrying guns. Carson's gun was a black semiautomatic handgun. Clay's was a .38 special revolver. Allen was the getaway driver.
¶ 3. Around 11 o'clock that evening, the three men drove into the Ridgeland Ranch apartment complex. They backed the car into a parking spot, smoked marijuana, and waited for another car to drive up. After waiting for ten or fifteen minutes, the men saw Jose Ortiz drive into the apartment complex. Ortiz was the manager of Margarita's Mexican restaurant on County Line Road and was returning home after the dinner shift. Ortiz was carrying almost $600 in cash.
¶ 4. Carson got out of the car, carrying his semiautomatic handgun. After Carson had been out of the car for two or three minutes, Clay got out of the car to help Carson with the robbery. Carson approached Ortiz in the parking lot. Clay stood about five feet away. Carson pointed his gun at Ortiz, and Ortiz took out his wallet and turned it inside out so that its contents fell to the ground. After Ortiz had emptied his wallet, Carson shot Ortiz in the face. Carson collected the money from the ground and then searched Ortiz's pockets for more money. Carson and Clay ran back to the car. When they got back to Jackson, the men divvied up the stolen money and used it to buy beer and cigarettes. Each man received approximately $120 from the crime.
¶ 5. After the shot was fired, Jose Hernandez, a resident of the Ridgeland Ranch complex and one of Ortiz's neighbors, saw an African–American man wearing a blue ACE shirt running between the buildings. Hernandez called the Ridgeland Police Department, and police officers arrived at the apartment complex five minutes later. The Ridgeland police officers discovered Ortiz's dead body lying in the back seat of his car and $177.28 in mixed bills and change in Ortiz's front pocket.
¶ 6. Based on an anonymous tip, the Ridgeland Police Department identified Carson as a suspect in Ortiz's murder. Carson was arrested on May 3, 2012, and was charged with capital murder and armed robbery. After Carson's arrest, the Ridgeland Police Department identified both Clay and Allen as suspects. Clay and Allen turned themselves in to police on May 17, 2012. They gave separate statements to police in which they confessed to the armed robbery and said that Carson had shot Ortiz. On July 26, 2012, a Madison County grand jury returned an indictment against Carson, charging him with capital murder, being a felon in possession of a firearm, and conspiring with Clay and Allen to commit armed robbery. The Ridgeland Police Department was unable to find the gun that was used to shoot Ortiz.
¶ 7. Carson's trial commenced on March 4, 2014. Hernandez testified that, although he had heard a shot fired, he did not see anyone shoot Ortiz. He also testified that he had seen a tall, thin African–American man wearing a blue ACE shirt running between the apartment complex's buildings.
¶ 8. Officer Rodney Hale testified that he was the first officer from the police department to arrive at the scene. Hale described finding Ortiz's body in the back of his car. He said that Ortiz was holding his wallet, which was turned inside out. Adrian Ready, a detective with the Ridgeland Police Department, also testified on the State's behalf. Detective Ready testified, without objection, that the police department had procured surveillance footage of Ortiz purchasing beer at a local convenience store at 11:08 p.m. and that Hernandez's call to the Ridgeland Police Department was made at 11:20 p.m. Thus, Ready deduced that the crime had occurred during the twelve minutes between 11:08 and 11:20 p.m. Ready averred (without objection) that the surveillance footage from the gas station did not show that Ortiz was being followed by anyone. The police department tried to dust Ortiz's car for fingerprints, but officers were unable to obtain any. According to Ready, the police department was unable to find either the assailant's gun or a spent shell casing.
¶ 9. Clay testified for the State. He said that he had pleaded guilty to armed robbery and that, although he had not been sentenced yet, he expected to be sentenced to twenty-five years of incarceration to be served day-for-day. Clay said that it was his idea for the men to go out and "hit a lick" for money with which to buy beer and cigarettes. Clay testified that the men drove to the Ridgeland Ranch apartment complex for the purpose of committing an armed robbery and that Carson brought a semiautomatic handgun. According to Clay, after the men saw Ortiz drive by, Carson got out of the car to find Ortiz. Clay averred that he got out of the car two or three minutes later to help Carson commit the robbery. Clay said that he was standing about five feet away from Carson when Carson pointed his gun at the victim. Ortiz then flipped his wallet inside out. Clay testified that, after Ortiz had emptied his wallet, Carson shot Ortiz in the face and searched his pockets for money. Clay said that, after he and Carson had returned to the car to meet Allen, he seen Carson's gun and noticed that a shell casing was lodged in the gun's chamber.
¶ 10. On cross-examination, Clay admitted that, at the time of the crime, he was high on marijuana and codeine. He said that he had been convicted of burglary of a dwelling, burglary of an automobile, and automobile theft. He averred that he had pleaded guilty to armed robbery but that his plea deal was not contingent upon his testimony against Carson. He also said that, after he had taken the plea deal, he mailed the following to police:
I lied about the confession I made to [the] investigator about the crime that took place on April 30, 2012, armed robbery and capital murder due to ... [the] severity of the charges. All I was thinking about was going home 'cause I was out on [early release supervision]. I was afraid that ... they was gone [sic] violate me. I didn't have any knowledge about this case. I'm sorry All I wanted to do was go home.
Clay testified that he wrote the recantation because he thought that all of the charges would be dropped because the prosecution did not have any evidence.
¶ 11. The State called Dr. Amy Gruszecki, a forensic pathologist, who performed the autopsy on Ortiz. She testified that Ortiz had died as a result of blood loss from a gunshot wound
to his face.
¶ 12. Finally, the State called Aretha Brent, Carson's cousin, to testify. She said that Carson had told her, Carson admitted to Brent that he had robbed Ortiz, but he did not tell her that he had shot or killed him. Brent testified that the Ridgeland Police Department had offered to dismiss her outstanding warrants for failure to pay traffic tickets in exchange for her testimony.
¶ 13. Crystal Brent was called as a witness in Carson's defense. Brent said that she had seen Carson at the barbecue held at her apartment on April 30, 2012, that she had seen him leave, and that she did not see him return.
¶ 14. Bobby Allen did not testify at Carson's trial because he had invoked his Fifth Amendment right to remain silent.
¶ 15. The jury returned guilty verdicts against Carson on all three charges. Carson received a life sentence without the possibility of parole for his capital-murder conviction, a ten-year sentence for being a felon in possession of a firearm, and a five-year sentence for conspiracy to commit armed robbery. The trial court ordered that Carson's sentences for felon in possession of a firearm and conspiracy to commit armed robbery would run consecutively to each other. The trial court determined that both sentences should run concurrently with Carson's life sentence for capital murder.
¶ 16. On July 29, 2015, the Court received an affidavit by mail, ostensibly from Bobby Allen. In the affidavit, executed on July 27, 2015, Allen said that he had lied to investigators about Carson's involvement in the crime. He swore that he and Clay had conspired to blame the crimes on Carson because they hated him. He said that Carson was not with...
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