Conner v. State, 94-DP-01210-SCT

• Decision Date: 13 June 1996
• Docket Number: No. 94-DP-01210-SCT,94-DP-01210-SCT
• Parties: Ronnie Lee CONNER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 608

684 So.2d 608

Ronnie Lee CONNER v. STATE of Mississippi.

No. 94-DP-01210-SCT.

Supreme Court of Mississippi.

June 13, 1996.

Rehearing Denied Sept. 19, 1996.

Andre' deGruy, Jackson, James W. Craig, Phelps Dunbar, Jackson, Julie Ann Epps, Jackson, for Appellant.

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

En Banc.

ON APPLICATION FOR LEAVE TO FILE MOTION TO VACATE CONVICTION

AND/OR DEATH SENTENCE

McRAE, Justice, for the Court:

Ronnie Lee Conner was convicted of capital murder for the kidnap, robbery and murder of an elderly woman, Celeste Brown, by a jury of the Lauderdale County Circuit Court. His conviction and death sentence were affirmed by this Court in Conner v. State, 632 So.2d 1239 (Miss.1993), cert. denied, Conner v. Mississippi, 513 U.S. 927,

115 S.Ct. 314, 130 L.Ed.2d 276 (1994). We now deny Conner's motion for post-conviction relief.

STATEMENT OF THE CASE

Conner filed his Motion to Vacate Conviction and/or Death Sentence pursuant to Miss.Code Ann. § 99-39-7 (1994), the Mississippi Uniform Post-Conviction Collateral Relief Act, in the Lauderdale County Circuit Court on December 2, 1994. By an order of this Court dated December 5, 1994, Conner's December 7, 1994 execution date was postponed pending the outcome of his Application for Leave to File Motion to Vacate Judgment and Death Sentence, Motion to Vacate Judgment and Death Sentence, and Memorandum in Support Thereof.

In support of his motion, Conner now asserts:

I. Conner's Right to Effective Assistance of Counsel at the Sentencing Phase was violated by his Attorney's Failure to Investigate, Prepare and Present Compelling Mitigation Evidence;

II. Because His Counsel Was Ineffective in Failing to Object to the Prosecutor's Use of the Peremptory Challenges in a Racially Discriminatory Manner, Conner Is Entitled to an Evidentiary Hearing on the Question of Whether the Prosecutor's Use of Peremptory Challenges to Exclude Blacks from Conner's Trial Jury Was Race-Neutral;

III. Conner Was Deprived of His Right to Effective Assistance of Counsel and Due Process of Law by Trial Counsel's Inadequate Voir Dire of Prospective Jurors;

IV. Trial Counsel's Failure to Object and Otherwise Preserve Reversible Error Constitutes Ineffective Assistance of Counsel under Strickland;

V. This Court's Refusal to Vacate Conner's Death Sentence after Willie v. State Established the Proper Statutory Use of the "Robbery" and "Pecuniary Gain" Aggravating Factors Deprived Conner of Meaningful Appellate Review.

Conner also filed a motion to proceed in forma pauperis. The State was granted a thirty-day extension of time in which to respond, but no response was received. Conner's motion to proceed in forma pauperis is denied.

ARGUMENTS AND DISCUSSION OF LAW

The first four issues Conner raises challenge the effectiveness at trial of his appointed attorney. To succeed on these claims, he must satisfy the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by this Court in Stringer v. State, 454 So.2d 468 (Miss.1984). Conner bears the burden of showing (1) that counsel's performance was deficient, and (2) that his defense was prejudiced by the deficient performance. Roland v. State, 666 So.2d 747, 750 (Miss.1995); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer v. State, 454 So.2d at 476. Moreover, Conner must show that but for counsel's errors, the outcome of his case would have been different. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992); Ahmad v. State, 603 So.2d 843, 848 (Miss.1992). He faces "a strong but rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance." Moody v. State, 644 So.2d 451, 456 (Miss.1994).

On review, we look with deference upon counsel's performance, considering the totality of the circumstances to determine whether it was both deficient and prejudicial. Moody, 644 So.2d at 456; Carney v. State, 525 So.2d 776, 780 (Miss.1988). If the petitioner raises questions of fact regarding counsel's deficiencies or any prejudice resulting therefrom, he is entitled to an evidentiary hearing. Moody, 644 So.2d at 456; Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). When we find that counsel's performance was ineffective, the case will be remanded for a new trial. Moody, 644 So.2d at 456.

I. Counsel's Failure to Investigate and Present Mitigating Evidence

Conner first asserts that his attorney was deficient in failing to develop and present evidence of his mental illness during the sentencing phase of his trial. He contends that expert testimony that he was schizophrenic The issue of Conner's mental health and low intelligence level arose in several contexts throughout the course of his trial, as well as on direct appeal. Conner raised the matter in charging that the circuit court erred in not ordering a competency hearing; that his sentence was disproportionate; that important mitigating evidence was excluded; and that the circuit court erred in denying his motion to compel disclosure of information regarding both aggravating and mitigating circumstances. Conner, 632 So.2d at 1247-51, 1265, 1267, 1275. Conner was evaluated at Whitfield State Hospital in March, 1990 by order of the circuit court. In relevant part, the evaluation stated that:

with a history of psychotic episodes and not taking his medication at the time Celeste Brown was murdered would have entitled him to instruct the jury to consider two additional mitigating factors pursuant to Miss.Code Ann. § 99-19-101(6) when determining his sentence: that the offense was committed while under the influence of extreme mental or emotional disturbance; and, that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. The State counters that Conner's attorney did not shirk his duty to investigate his mental health, especially in light of the evaluation made in response to Conner's motion for a mental examination.

The staff was unanimous in the opinion that he is competent to stand trial at the present time. He appears to have a rational as well as factual understanding of the charges against him and he appears capable of assisting his attorney in preparing a defense. With regard to his sanity at the time of the crime, the staff was unanimous in the opinion that he knew the difference between right and wrong in relation to his actions.

Mr. Conner has been treated at the [Weems] Mental Health Center for a number of years and has a Schizophrenic diagnosis. We have retained this diagnosis, although he has shown few if any of the symptoms of this disorder during his stay in the hospital. He is on medication and this could account for the lack of symptoms. We have given him a diagnosis of Personality Disorder Not Otherwise Specified to reflect a long-standing pattern of social discomfort, excessive dependency, and a tendency to take out his anger in indirect and passive ways.

Conner, 632 So.2d at 1251.

Conner relies primarily on Woodward v. State, 635 So.2d 805 (Miss.1993) to support his assertion that his attorney's alleged failure to investigate and present evidence of his mental illness constitutes ineffective assistance of counsel. In Woodward, as distinguished from the case sub judice, the attorney presented Woodward's mental illness as the sole mitigating factor. Woodward, 635 So.2d at 810. The defense's sole witness throughout the case, who, in his affidavit, indicated that Woodward suffered from a severe psychotic disorder at the time of the crime, was questioned by Woodward's attorney only as to the results of his testing and not about the history or details of Woodward's illness. Noting the attorneys' ineptitude, the Court noted:

By not realizing that they could offer Dr. Thurman's testimony about the [sic] Woodward's mental illness without opening the door to unlimited character evidence, Woodward's trial counsel were ineffective. Having made a tactical decision to rely solely on mental illness as a mitigating factor, counsels' failure to offer all of the evidence they had was inexcusable.

Woodward, 635 So.2d at 810. Similarly, in Loyd v. Smith, 899 F.2d 1416 (5th Cir.1990), a habeas action upon which Conner also relies, the ineffectiveness of counsel issue arose from the petitioner's attorney's ignorance of the law. The Fifth Circuit stated that:

The district court wholly failed to address the state court's implicit finding that the failure to properly investigate stemmed, at least in part, from Hackman's ignorance as to the admissibility of statutory mitigating evidence of mental disease or defect which did not reach the level of insanity under the McNaughten rule. Had Hackman understood the relevance of mitigating evidence Loyd, 899 F.2d at 1425. The court further noted that the district court was correct in stating that Lloyd's attorney had no duty to find an expert who would testify as he wished, but found such a statement to be incongruous in light of the fact that "at least one of Lloyd's attorneys was wholly unaware of the admissibility of statutory mitigating circumstances, such as mental disease or defect not rising to the level of insanity." Id.

an attempt to develop such testimony could have begun at an earlier stage.

As distinguished from Loyd and Woodward, there is no indication that Conner's attorney acted in ignorance of the law when he failed to call any mental health professionals as witnesses. Based on the evaluation from Whitfield, supra, it hardly seems that further evidence of Conner's alleged personality disorders was necessary. Further, the affidavits of the experts Conner now claims should have been called to testify do little more than establish that he once had been diagnosed as schizophrenic, apparently failed to take his medication...