Davis v. State, 98-DR-00511-SCT.

• Decision Date: 01 July 1999
• Docket Number: No. 98-DR-00511-SCT.,98-DR-00511-SCT.
• Citation: 743 So.2d 326
• Parties: Jeffrey Keller DAVIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

743 So.2d 326

Jeffrey Keller DAVIS v. STATE of Mississippi.

No. 98-DR-00511-SCT.

Supreme Court of Mississippi.

July 1, 1999.

Samuel E.L. Anderson, Jackson, Cynthia L. Eldridge, Walter E. Wood, Ridgeland, Attorneys for Appellant.

Office of the Attorney General by Leslie S. Lee, Attorney for Appellee.

EN BANC.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On Friday, July 12, 1991, Greene County Sheriff Tommy Miller received a phone call at home from Jeffrey Keller Davis. Davis identified himself and told Miller that he had killed Linda Hillman. Sheriff Miller knew Davis and Hillman. Miller and a deputy went to Davis's home and found him with his bags packed, waiting for Miller. Davis told Miller that he had gone to Hillman's trailer early on the morning of July 11 to get money to buy drugs. When Hillman refused to give him any money, he shot and stabbed her to death.

¶ 2. Jeffrey Keller Davis was convicted in May 1992 in Greene County for the capital murder of Linda Hillman while engaged in robbery. His conviction and death sentence were affirmed by this Court in Davis v. State, 684 So.2d 643 (Miss.1996),cert. denied, Davis v. Mississippi, 520 U.S. 1170, 117 S.Ct. 1437, 137 L.Ed.2d 544 (1997). Davis filed his Application for Leave to File Motion to Vacate Judgment and/or Sentence of Death in this Court on April 1, 1998.

STATEMENT OF ISSUES

¶ 3. Davis's application raises the following issues:

I. Davis was denied the effective assistance of counsel.

1) Counsel failed to contest the constitutionality of Davis's confession.

2) Counsel failed to move to suppress evidence retrieved from Davis's home and truck.

3) Counsel's cross-examination of the sheriff bolstered the State's case.

4) Counsel failed to contest evidence retrieved prior to the initial appearance even though a judge was available.

5) Counsel failed to object to the admission of testimony regarding decomposition of the victim's body even though it incited bias and passion in the jury.

6) Counsel's defense of Davis in the sentencing phase was deficient as a matter of law-Counsel failed to investigate the existence of character witnesses and inadequately prepared and examined the ones present.

7) Davis was not assigned two attorneys for his capital defense in violation of the Fifth and Sixth Amendments to the United States Constitution.

8) Counsel failed to request a change of venue.

9) Counsel failed to move to quash the jury based on improper contact with the State.

A) Jury members were taken on a tour of the Greene County Jail where Davis was held the week before trial and discussed Davis's case with guards.

B) Jury members mingled with Assistant District Attorney Daryl Dryden the week prior to trial.

10) Counsel failed to investigate or offer any independent evidence of cocaine psychosis.

11) Counsel failed to explain a plea bargain offered to Davis.

12) Counsel failed to object to Instruction S-3 which was defective in violation of state law and the Eighth Amendment.

13) Counsel failed to request a special jury venire prior to trial date.

14) Counsel failed to have to have the court reporter record the jury selection process.

15) Counsel failed to object to the nonconformity between S-3, S-2 and the indictment.

16) Counsel failed to raise the M'Naghten Rule in contesting the State's voluntary intoxication instruction.

17) Counsel failed to pose a specific objection to pain testimony by Dr. Hayne.

18) Counsel failed to require the prosecution to lay the proper foundation for introduction of the highly prejudicial photograph of Davis's right arm.

19) The cumulative errors of counsel deprived Davis of his Sixth Amendment right to the effective assistance of counsel.

II. Juror Denmark worked with Davis's mother but failed to reveal this fact during voir dire.

III. The prosecution improperly elicited evidence regarding Davis's alleged lack of remorse at trial.

IV. The many instances of prosecutorial misconduct violated Jeffrey Davis's right to a fair trial.

V. The trial court erred in denying defendant's instruction on the lesser included offense of murder.

VI. The trial court erred in limiting examination of witness Clayton Evans with regard to his knowledge of the victim.

VII. The trial court erred in prohibiting evidence concerning the victim's prior conviction for possession of marijuana.

VIII. The aggravating circumstance of whether the capital offense was committed for pecuniary gain was invalid and should not have been submitted to the jury.

IX. The jury should not have been instructed to consider the heinous, atrocious or cruel aggravating circumstance under the facts in this case.

X. The jury was given an unconstitutional definition of the heinous, atrocious or cruel aggravating circumstance in the sentencing phase of trial.

XI. The sentencing instructions were erroneous in that they failed to inform the jury that they need not be unanimous in finding mitigating circumstances.

XII. The trial court erred in allowing the district attorney to ask prospective jurors about their ability to return a death sentence given specific facts.

XIII. The use of the trial judge questionnaire and Miss.Code Ann. § 99-19-105 violated the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

XIV. The Court's proportionality review was based on erroneous evidence.

XV. The death sentence should be vacated as it is cruel and unusual punishment in violation of the Eighth Amendment and disproportionate given the circumstances of the crime and the background of the defendant.

XVI. The cumulation of error in this case demands reversal.

¶ 4. Davis also filed in this Court a Motion for Appointment of Counsel, Payment of Reasonable Litigation Expenses and Suspension of Briefing. The motion asks for relief similar to that granted by this Court in Jackson v. State, 732 So.2d 187 (Miss.1999).

DISCUSSION OF LAW

I. Davis was denied the effective assistance of counsel.

¶ 5. Jeffrey Davis first alleges that George Shaddock, sole trial and appellate counsel, was ineffective. The standard for such a question was provided by this Court in Foster v. State, 687 So.2d 1124, 1129-30 (Miss.1996):

"The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The test is two pronged: The defendant must demonstrate that his counsel's performance was deficient, and that the deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687,

104 S.Ct. at 2064; Washington v. State, 620 So.2d 966 (Miss.1993). "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stringer v. State, 454 So.2d 468, 477 (Miss.1984),

citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Stringer at 477, citing Strickland, 466 U.S. at 688,

104 S.Ct. at 2065; State v. Tokman, 564 So.2d 1339, 1343 (Miss.1990).

Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'

Stringer at 477; Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In short, defense counsel is presumed competent. Johnson v. State, 476 So.2d 1195, 1204 (Miss. 1985); Washington v. State, 620 So.2d 966 (Miss.1993).

Then, to determine the second prong of prejudice to the defense, the standard is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a "probability sufficient to undermine the confidence in the outcome." Id. The question here is

whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.

There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991).

1) Counsel failed to contest the constitutionality of Davis's confession.

¶ 6. This Court recounted the events of Jeffrey Davis's statements to law enforcement as follows:

On Friday, July 12, 1991, [Greene County] Sheriff Tommy Miller received a phone call at home from Jeffrey Davis. Davis identified himself to Sheriff Miller and told the Sheriff that he had killed Linda

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