Cole v. State

Citation666 So.2d 767
Decision Date30 November 1995
Docket NumberNo. 94-DP-00217-SCT,94-DP-00217-SCT
PartiesWest COLE v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

James W. Craig, Phelps Dunbar, Jackson, for appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Assistant Attorney General, Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.

McRAE, Justice, for the Court:

This is an appeal from the denial of an evidentiary hearing by the Hinds County Circuit Court on West Cole's Application for Leave to File Motion to Vacate Judgment and Death Sentence filed on September 1, 1989, pursuant to Miss.Code Ann. § 99-39-1, et seq. (1994), otherwise known as the Mississippi Uniform Post-Conviction Collateral Relief Act. Upon review of his petition, we find that Cole was sentenced in violation of the Eighth Amendment since the jury was permitted to consider the especially "heinous, atrocious, and cruel" aggravator which was constitutionally infirm in the absence of a limiting or narrowing instruction. As a matter of state law, this Court may not reweigh the aggravating or mitigating circumstances or conduct a harmless error analysis to uphold the sentence of death on appeal. Accordingly, the denial of post-conviction relief is reversed and Cole's sentence of death is vacated. This case is remanded to the Circuit Court of Hinds County so that Cole may be sentenced for his capital murder conviction by a properly instructed jury.

West Cole was convicted of capital murder and sentenced to death by virtue of jury verdicts returned in the Circuit Court of the Second Judicial District of Hinds County during a trial conducted on July 23-27, 1984. Cole's conviction and sentence grew out of the December 22, 1983 slaying of Mrs. Nettie Mae Whitten, an elderly woman and proprietress of the Midway Grocery near Raymond, Mississippi. 1 Cole gave a written confession to the police, and the Mississippi State Hospital at Whitfield found him mentally competent to stand trial after conducting a mental examination pursuant to the request of Cole's attorney. In its sentencing verdict, the jury specifically found that Cole actually killed Nettie Mae Whitten, and that he contemplated that lethal force would be used. The jury then found the existence of the following four (4) aggravating circumstances:

(1) The capital murder was committed by a person under a sentence of imprisonment.

(2) The defendant was previously convicted of another capital offense or a felony involving the use of or threat of violence to the person.

(3) The capital murder was committed intentionally while the defendant was engaged in the commission of robbery; and was committed for pecuniary gain.

(4) The capital murder was especially heinous, atrocious or cruel.

Cole raised eighteen separate issues on direct appeal to this Court. On July 29, 1987, this Court, in a divided opinion, affirmed both Cole's conviction of capital murder and the sentence of death. Cole v. State, 525 So.2d 365 (Miss.1987). Rehearing was denied on June 3, 1988. Certiorari to the Supreme Court of the United States was denied on October 31, 1988, and rehearing was denied on January 9, 1989. An execution date of September 13, 1989, was set by this Court and later stayed after the filing of the present application.

Two other opinions relevant to the disposition of the present application are Cole v. State, 608 So.2d 1313 (1992), and Cole v. State, 608 So.2d 1331 (Miss.1992), both of which upheld denials by the trial court of post-conviction relief sought on the basis of Cole's allegedly uncounseled guilty pleas in 1957 and 1963 to manslaughter and attempted rape, respectively.


A. Issues Procedurally Barred

Miss.Code Ann. § 99-39-3(2) (1994) provides that "[d]irect appeal shall be the principal means of reviewing all criminal convictions and sentences ..." The purpose of the remedies contained in the post-conviction relief act is to provide prisoners with a procedure Post-conviction relief does not lie for facts and issues which were litigated at trial or on direct appeal. Similarly, post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial and on appeal. Smith v. State, 434 So.2d 212, 215 n. 2 (Miss.1983). Moreover, "[t]he procedural bars of waiver, different theories, and res judicata and the exception thereto as defined in Miss.Code Ann. § 99-39-21(1-5) are applicable in death penalty PCR Applications." Lockett v. State, 614 So.2d 898, 902 (Miss.1992).

limited in nature, to review issues or errors which "in practical reality could not be or should not have been raised at trial or on direct appeal." § 99-39-3(2).

In Smith v. State, a death penalty case, this Court opined:

We are compelled to note that in the instant case, as is all too often the case in similar post-conviction relief efforts which come before this Court, the petitioner is in actuality merely seeking to relitigate his case. Such is not the proper function of post-conviction relief proceedings in Mississippi. The fair and orderly administration of justice dictates that a person accused of a crime be afforded the opportunity to present his claims before a fair and impartial tribunal. It does not require that he be given multiple opportunities to "take a bite at the apple." Likewise, the orderly administration of justice does not require this Court to "lead a defendant by the hand" through the criminal justice system. It is this Court's responsibility to provide a meaningful opportunity for defendant to raise his claims and have them adjudicated. [emphasis added]

434 So.2d at 220. We turn now to the four claims by Cole that are procedurally barred from consideration in a post-conviction environment.

I. Prosecution of Cole By a Relative of the Victim

Amy Whitten, one of the prosecutors at trial for the State of Mississippi, was related to the victim by marriage. The deceased, Nettie Mae Whitten, was Amy Whitten's paternal step-grandmother. Cole claims his prosecution by a relative of the victim deprived him of due process of law. This claim is barred, but even if not, it certainly provides no basis for the granting of Cole's application.

The facts demonstrate that defense counsel, Davey Tucker, was well aware of the kinship at the time of trial and voiced no objection. He could have objected to Whitten's continued participation in the prosecution of the case had he desired to do so. Tucker made no objection, nor was the point raised on appeal. Accordingly, this claim is procedurally barred by the doctrine of waiver pursuant to Miss.Code Ann. § 99-39-21(1) unless Cole can show or demonstrate cause or actual prejudice in accordance with Miss.Code Ann. § 99-39-21(4) and (5). He has failed to demonstrate fundamental constitutional error, an intervening decision, cause for failing to raise this claim on direct appeal, or that this fact adversely affected the outcome of his conviction or sentence. Therefore, this assignment of error remains procedurally barred by the doctrine of waiver.

II. Comment on Cole's Failure to Testify

Cole claims the prosecutor directly commented on his failure to testify during the guilt-finding phase of his trial for capital murder when he/she stated: "That's five hundred dollars. Five hundred dollars. And he hadn't given you any explanation where that came from. And the reason he hadn't is because he can't." Cole also says the prosecutor made a second impermissible comment concerning the nonproduction of bloody clothing. Finally, Cole argues the prosecutor improperly commented on his appearance at trial.

Not only was there no objection raised during trial concerning these comments, no claim was raised on direct appeal bringing these issues to this Court's attention. Nor did this Court invoke its plain error rule. Because these claims could and should have been raised at trial and on direct appeal, they are procedurally barred by the doctrine of waiver or forfeiture.

In addition, this Court addressed the issue of prosecutorial misconduct in its written opinion, holding specifically that claims without contemporaneous objection were barred. Cole v. State, 525 So.2d at 369. Heightened appellate scrutiny in death penalty cases does not require abandonment of our contemporaneous objection rule which applies with equal force to death cases. For many years we have held that trial errors cannot be raised in this Court for the first time on appeal. See, e.g., Jefferson v. State, 386 So.2d 200 (Miss.1980).

In Leverett v. State, 197 So.2d 889, 890 (Miss.1967), this Court, quoting from Collins v. State, 173 Miss. 179, 180, 159 So. 865 (1935), stated the following:

The Supreme Court is a court of appeals, it has no original jurisdiction; it can only try questions that have been tried and passed upon by the court from which the appeal is taken. Whatever remedy appellant has is in the trial court, not in this court. This court can only pass on the question after the trial court has done so.

This Court explained the underlying bases for the existence of a contemporaneous objection rule in Oates v. State, 421 So.2d 1025, 1030 (1982):

There are three basic considerations which underlie the rule regarding specific objections. It avoids costly new trial. Boring v. State, 253 So.2d 251 (Miss.1971). It allows the offering party an opportunity to obviate the objection. Heard v. State, 59 Miss. 545 (Miss.1882). Lastly, a trial court is not put in error unless it had an opportunity to pass on the question. Boutwell v. State, 165 Miss. 16, 143 So. 479 (1932).

Accordingly, the claims in his petition for post-conviction relief are barred, implicitly if not directly, by the doctrine of res judicata found in Miss.Code Ann. § 99-39-21(3).

III. Cole's Confession

The target of this claim is Cole's alleged mental retardation, i.e., his low intelligence level, and its affect upon Cole's ability to give a free and voluntary confession and to understand his...

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