Conway v. State

• Citation: 48 So.3d 588
• Decision Date: 02 December 2010
• Docket Number: Nos. 2009-CA-00886-COA, 2003-CT-02807-COA.,s. 2009-CA-00886-COA, 2003-CT-02807-COA.
• Parties: Derek Brandon CONWAY, Appellant v. STATE of Mississippi, Appellee. Derek Brandon Conway, Appellant v. State of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

48 So.3d 588

Derek Brandon CONWAY, Appellant

v.STATE of Mississippi, Appellee.

Derek Brandon Conway, Appellant

v.State of Mississippi, Appellee.

Nos. 2009-CA-00886-COA, 2003-CT-02807-COA.

Court of Appeals of Mississippi.

June 1, 2010.

Rehearing Denied Aug. 31, 2010.

Certiorari Denied Dec. 2, 2010.

Edwin Lloyd Pittman, Jonathan Michael Farris, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before MYERS, P.J., ISHEE and ROBERTS, JJ.

ROBERTS, J., for the Court:

¶ 1. Derek Conway was convicted of murder in the Circuit Court of Forrest County. He appealed his conviction, which was considered by this Court. After reviewing the issues presented, we ultimately affirmed Conway's conviction. See Conway v. State, 915 So.2d 521, 527 (¶ 23) (Miss.Ct.App.2005). Conway received leave from the supreme court to file his motion for post-conviction relief (PCR) in the trial court. Conway subsequently filed a PCR motion in the Circuit Court of Forrest County in which he argued that he had received ineffective assistance of counsel at both the trial and appellate level as well as arguing other matters. Following the trial court's denial of Conway's PCR motion, he appeals and raises the following issues, which we have restated for the purpose of clarity and concision:

I. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS CRIMINAL TRIAL;

II. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE APPEAL OF HIS CONVICTION OF MURDER;

III. WHETHER CONWAY WAS DENIED A FAIR TRIAL; and

IV. WHETHER CONWAY WAS DENIED PROCEDURAL DUE PROCESS.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts surrounding Conway's shooting of Kenneth Ray Mooney were set out in Conway as follows:

Derek Brandon Conway was a friend of Joseph Jansen. Jansen became aware that Conway and his wife, Christina, had separated. Heather Essary, an ex-girlfriend of Conway's, contacted Conway and told him that Christina and Jansen were using Essary's cell phone to communicate with each other. Conway called Christina and accused her of seeing Jansen, an accusation Christina denied. Conway told Christina that he would fight Jansen when Jansen returned from Alabama. Jansen called Conway and asked him why he was being accused of sleeping with Christina. Conway said nothing in reply, and the conversation was ended.

After the telephone conversation, many of Conway's friends informed him that Jansen and Christina were sleeping together. Conway again called Jansen and accused him of sleeping with his wife. Jansen again denied the allegations. According to Jansen, they talked the situation over and Conway eventually told Jansen that he believed him.

On the afternoon of July 4, 2002, Conway and two of his friends, Michael Smith and Paul Ingram, went to Conway's mother's house. They ingested crystal methamphetamine and remained at Conway's mother's house until the evening. At approximately 8:00 p.m. Conway, Smith, and Ingram drove to Bud's and Sud's Car Wash to wash Smith's car. Next to Bud's and Sud's is the Kangaroo store. Ingram was shopping for something to drink. As Conway and Smith were vacuuming the car, Conway saw Anthony Thames'[s] truck pull up at the Kangaroo store. Thames was driving, Kenneth Ray Mooney was in the passenger's seat, and Jansen was in the middle.

Ingram came out of the Kangaroo store and spoke to Jansen. Ingram told Jansen that Conway and Smith were atthe car wash. Jansen, Thames, and Mooney drove to the car wash and stopped in front of Conway. The three of them began staring at Conway and laughing.

Conway reached in Smith's car, took out a [Maglite] and walked over to the truck. Jansen tried to get out of the truck, but Mooney would not let him out. Conway hit Mooney in the head with the [maglight] twice.

Jansen and Thames testified that none of the occupants in the truck had a weapon. Conway testified that he attacked Mooney because he "was scared that they were all fixing to do something to him" and that "he didn't give them a chance" for the boys in the truck to harm him. According to Conway, Mooney attempted to strike him in the head with a beer bottle. No other witnesses testified that Mooney displayed any acts of physical aggression.

After Conway hit Mooney in the head with a [Maglite], Conway and Jansen argued about whether Jansen was sleeping with Conway's wife. Conway pulled out a gun from his back pocket and shot Mooney. Conway then ran back to Smith's car and drove away, saying, "I didn't mean to; I'm sorry." Thames and Jansen took Mooney to Forrest General Hospital, where he died later that night. Conway turned himself in to the police the next day. The jury found Conway guilty of first[-]degree murder.

Conway, 915 So.2d at 523-24 (¶ ¶ 3-9).

¶ 3. Following the hand-down of Conway on November 29, 2005, and subsequent issuance of the mandate on December 20, 2005, Conway's appellate counsel filed a motion for an enlargement of time to file a motion for reconsideration with this Court. The motion was denied by this Court. Conway's current counsel filed a motion for reconsideration of this Court's denial of the motion for an enlargement of time, which was also denied. Conway subsequently filed a petition for writ of certiorari review with the supreme court. This motion was treated as a motion to suspend the rules by the supreme court, and it was denied.

¶ 4. Conway then filed an application in the supreme court to proceed in the trial court for post-conviction relief pursuant to Mississippi Code Annotated section 99-39-27 (Rev.2007). The supreme court granted Conway's motion, and he subsequently filed a PCR motion on November 6, 2007, in the Circuit Court of Forrest County. In its brief, the State claims that the trial court summarily dismissed Conway's motion. However, the record shows that there were two notices of hearing, setting a hearing date on November 20, 2007, and March 21, 2008, respectively, as well as a re-notice of hearing. Further, in its May 6, 2009, order nunc pro tunc denying Conway's motion, the trial court stated that "this matter [was] previously heard by the Court on October 3, 2008...." On September 12, 2008, the State through the district attorney's office filed an answer to Conway's PCR motion. The answer was quite detailed and specific. Although there is no transcript of the hearing in the record, these facts suggest that a hearing on the matter did take place. Further justifying this assumption is the fact that Conway's initial notice of appeal of the trial court's denial of his PCR motion was filed on January 9, 2009. After reviewing Conway's claims of error, we find that they are without merit and affirm the trial court's denial of his PCR motion.

DISCUSSION

I. WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS CRIMINAL TRIAL.

¶ 5. Conway first argues that he was denied his Sixth Amendment right to effectiveassistance of counsel. Specifically, Conway assigns the following errors of his trial counsel on appeal: (1) failed to adequately prepare for Conway's trial; (2) failed to renew his motion to exclude evidence provided by the State; (3) failed to move for a mistrial after learning that a juror had failed to inform the court that she knew Conway's mother; and (4) failed to object to the qualifications of the State's expert witness.

¶ 6. The standard of review for a claim of ineffective assistance of counsel is a well-settled, two-pronged principle of law. The supreme court has stated:

In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wilcher v. State, 479 So.2d 710, 713 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). [A reviewing court] looks at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial. Carney v. State, 525 So.2d 776, 780 (Miss.1988); Read v. State, 430 So.2d 832, 839 (Miss.1983). "Judicial scrutiny of counsel's performance [is] highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong but rebuttable presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Carney, 525 So.2d at 780; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Only where it is reasonably probable that but for the attorney's errors, the outcome of the trial would have been different, will we find that counsel's performance was deficient. Dickey v. State, 662 So.2d 1106, 1109 (Miss.1995); Reed v. State, 536 So.2d 1336, 1339 (Miss.1988).

Holly v. State, 716 So.2d 979, 989 (¶ 37) (Miss.1998).

¶ 7. Furthermore, the appellant bears "the burden of proving that counsel's performance was deficient and prejudicial." Branch v. State, 882 So.2d 36, 52 (¶ 26) (Miss.2004) (citing Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994)). Additionally, there is no constitutional right to errorless counsel. Id. (citing Stack v. State, 860 So.2d 687, 696 (¶ 20) (Miss.2003)); Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

A. Whether Conway received ineffective assistance of counsel as a result of his trial counsel's being unprepared.

¶ 8. At the beginning of Conway's trial, his counsel moved the trial court for examination and testing of physical evidence and for a continuance. However, the motions were denied. On appeal, Conway argues that the record shows that Conway's trial counsel was deficient in his preparations for trial and that "[t]he deficiencies prejudiced Conway's defense because [his trial] counsel was unprepared for trial; was unable to obtain separate verification of the existence and placement of the fingerprints on the bottles found in the truck; and was unable to obtain separate verification of the...