Culberson v. State, 03-DP-0009

• Decision Date: 25 July 1990
• Docket Number: No. 03-DP-0009,03-DP-0009
• Citation: 580 So.2d 1136
• Parties: Alvin CULBERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1136

580 So.2d 1136

Alvin CULBERSON v. STATE of Mississippi.

No. 03-DP-0009.

Supreme Court of Mississippi.

July 25, 1990.

Rehearing Denied May 8, 1991.

Robert B. Wiygul, Gordon Arata McCollam Stuart & Duplantis, New Orleans, La., Catherine V. Kilgore, Batesville, for appellant.

Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene Robb Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

On the evening of January 31, 1975, potato chip deliveryman Grady Evans exited a business establishment on Old Highway 49 in Harrison County, Mississippi, and was walking toward his truck, when Alvin Culberson, in concert with Alvareece Pittman, accosted him, and in the course of the attempted robbery, Culberson shot and killed Evans. The Circuit Court of Harrison County, Mississippi, sitting with a jury, convicted Culberson of capital murder and sentenced him to death, only to have this Court reverse and remand for a new trial. Culberson v. State, 348 So.2d 1025 (Miss.1977).

In late 1977, Culberson stood trial again, and, largely on the testimony of accomplice Pittman, he was again found guilty of capital murder and condemned to death. This time this Court affirmed. Culberson v. State, 379 So.2d 499 (Miss.1979), cert. den. 449 U.S. 986, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980).

Culberson then petitioned this Court for post-conviction relief and said that his conviction and/or sentence should be vacated on numerous grounds. We considered his application and on April 21, 1982, found Culberson entitled to an evidentiary hearing on the limited question of whether he had been denied effective assistance of counsel in the sense that his attorney prohibited him from testifying at either the guilt phase or sentencing phase of his trial. This Court remanded to the Circuit Court, adding

We have considered the other grounds of the writ of error coram nobis and are of the opinion that no evidentiary hearing should be held except on the narrow question heretofore authorized.

Culberson v. State, 412 So.2d 1184, 1187 (Miss.1982).

In due course, the Circuit Court found that Culberson had not been prevented from testifying in such a manner that his right to effective assistance of counsel was abridged and, on appeal, this Court affirmed, Culberson v. State, 456 So.2d 697 (Miss.1984), and set a new date on which Culberson should be put to death. En route this Court again noted that Culberson's post-conviction application had asserted other points and grounds and observed, with respect to the Court's April 21, 1982, ruling, that "we found that there was no merit to the other allegations of appellant's petition," Culberson, 456 So.2d at 697. Later in the opinion the Court stated

All of the other assignments of error now presented in this appeal either previously have been disposed of by this Court or all are procedurally barred, except the question granted as to whether or not Culberson was refused permission to testify. A careful study of the opinions heretofore cited confirms these statements.

Culberson, 456 So.2d at 698.

Culberson thereafter applied to the United States District Court for the Southern District of Mississippi for relief from his conviction and/or sentence via federal habeas corpus. In time, the District Court found, with respect to three of the claims Culberson sought to present to that Court, that he had not exhausted his state remedies. These three claims were and are

1) Culberson's claim that the Circuit Court of Harrison County failed to instruct the jury of the contents of the plea bargain arrangement between the prosecuting attorney and Alvareece Pittman, Culberson's accomplice, for leniency in sentence in exchange for Pittman's testimony, and for further instructions regarding the prosecution's handling of the matter involving accomplice Pittman.

2) His claim of ineffective assistance of counsel on direct appeal.

3) He claims the report the trial judge must submit to this Court in conjunction with proportionality review, required by Miss.Code Ann Sec. 99-19-105(1) (Supp.1989) was inadequate.

On the authority of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) the District Court then stayed its hand and remanded Culberson to the courts of this state for exhaustion of his state remedies, if any, on these three claims, all the while retaining federal jurisdiction of the case and maintaining in effect, pending exhaustion of state remedies, an order for stay of execution.

Parenthetically, it should be noted that, in the proceedings before the United States District Court, the Attorney General of the State of Mississippi had argued that other claims over and above these three had not been "exhausted." Exhaustion is a federal question. Nevertheless, as an expression of comity, the District Court invited this Court to

reconsider any of the state's claims assigned as unexhausted but actually found exhausted by this Court.

While we respect and appreciate the District Court's attitude, we are not about to second guess that Court in its decision on what we perceive a pure question of federal law.

In any event, Culberson has now filed with this Court a new application for post-conviction relief, asserting some seventeen claims--fourteen more than the three the District Court found unexhausted. In his application, Culberson acknowledged his additional claims were (re)tendered in light of the District Court's comity expression.

We have reviewed the entire course of proceedings before this Court. We find inescapable the conclusion that this Court's 1984 order and opinion, Culberson v. State, 456 So.2d 697 (Miss.1984), contemplated that all proceedings before the courts of the State of Mississippi were at an end. In that order this Court set a new date for execution of sentence. Under these circumstances, we consider it inappropriate that this Court reopen any of these matters or readjudicate any of these claims or revise or further articulate any of the grounds for denying these claims, with the limited exception of the three claims expressly identified by the District Court as being in need of exhaustion.

Culberson's first claim before the Court today is that the Circuit Court failed "to properly inform and instruct the jury of the deal made with Alvareece Pittman." The record before us does reflect Pittman was originally indicted for capital murder along with Culberson, but that he entered a plea of guilty to the reduced charge of manslaughter, that he was sentenced to fifteen years imprisonment, and that he was finally released from custody some eighteen months thereafter. Culberson here points to the prosecution's plea bargain with Pittman and suggests that it infected Pittman's credibility as a witness. In point of fact, one brief colloquy with Pittman advised the Culberson jury that the charge against Pittman had been reduced to manslaughter.

There is no question but that in a criminal trial defense counsel has the right to present to the jury the particulars of a plea bargain made with an accomplice presented by the state to testify against the defendant, and this has been the law for some time now. See Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Suan v. State, 511 So.2d 144, 147-48 (Miss.1987); Malone v. State, 486 So.2d 367, 368-69 (Miss.1986); King v. State, 363 So.2d 269, 274 (Miss.1978). Assuming arguendo that Culberson was of right entitled to have the jury instructed in this regard, the time to raise the point was at trial in October of 1977, before the Circuit Court submitted the case to the jury. The record reflects no request by Culberson or counsel for such instruction, nor do the proceedings before the Court on direct appeal reflect mention of the point. This Court's opinion affirming is simply silent on the subject, Culberson v. State, 379 So.2d 499 (Miss.1979), this though the disposition of the charge against Alvareece Pittman was a matter of great concern to several of the Justices. See Culberson...