Doss v. State

• Decision Date: 22 October 2009
• Docket Number: No. 2007-CA-00429-SCT.,2007-CA-00429-SCT.
• Citation: 19 So.3d 690
• Parties: Anthony DOSS v. STATE of Mississippi on Motion for Rehearing.
• Court: Mississippi Supreme Court

19 So.3d 690

Anthony DOSS v. STATE of Mississippi on Motion for Rehearing.

No. 2007-CA-00429-SCT.

Supreme Court of Mississippi.

October 22, 2009.

Robert B. McDuff, attorney for appellant.

Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

GRAVES, Presiding Justice, for the Court.

PART ONE

¶ 1. The appellant's motion for rehearing is granted. The previous opinions are withdrawn and these opinions are substituted therefor.

¶ 2. Anthony Joe Doss was convicted of capital murder in the Circuit Court of Grenada County and sentenced to death for the murder of Robert C. Bell. Doss' conviction and sentence were affirmed by this Court on direct appeal. Doss v. State, 709 So.2d 369 (Miss.1996), cert. denied, 523 U.S. 1111, 118 S.Ct. 1684, 140 L.Ed.2d 821 (1998). In Doss v. State, 882 So.2d 176 (Miss.2004), this Court granted Doss' Application for Leave to File a Motion to Vacate Judgment and Sentence, finding that Doss was entitled to an evidentiary hearing in the trial court on the issues of whether he received ineffective assistance of counsel during the penalty phase and whether he was mentally retarded. The trial court considered the evidence and found against Doss on both issues. Doss subsequently filed this appeal. This Court reverses the trial court's denial of post-conviction relief on the issue of ineffective assistance of counsel and remands this matter to the trial court for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

¶ 3. Doss was convicted of capital murder in the Circuit Court of Grenada County and sentenced to death for the murder of Robert C. Bell. Doss' conviction and sentence were affirmed by this Court on direct appeal. Doss v. State, 709 So.2d 369 (Miss.1996), cert. denied, 523 U.S. 1111, 118 S.Ct. 1684, 140 L.Ed.2d 821 (1998). Doss filed an Application for Leave to File Motion to Vacate Judgment of Sentence in this Court in May 2003. This Court granted Doss leave to proceed in the trial court on the following issues: (1) Whether he was mentally retarded; and (2) whether his trial counsel had been ineffective at the penalty phase. Doss v. State, 882 So.2d 176 (Miss.2004).

¶ 4. The Grenada County Circuit Court held an evidentiary hearing on this matter on September 6-7, 2006. Doss presented the following witnesses: Dr. Criss Lott, a psychologist; Lee Bailey, Doss' trial counsel; Dr. Daniel Grant, a psychologist; Dr. Timothy Summers, a psychiatrist; Q.T. Doss, Doss' cousin; Sadie Doss, Doss' mother; Sandra Price, a daughter of Sam "Joe" Brown, with whom Sadie Doss had lived in Chicago; and Sam Henry Phillips, Doss' biological father. The State presented Dr. Gilbert V. MacVaugh, III, a psychologist, and Dr. Reb McMichael, a psychiatrist, as witnesses. On December 12, 2006, the trial court entered an Order and an Opinion, finding that Doss was not mentally retarded and that he was not denied effective assistance of counsel. Doss' Motion to Alter or Amend Opinion and Judgment was denied. Subsequently, Doss filed this appeal, asserting that he did not receive effective assistance of counsel at the sentencing phase of his trial and that the decision in Atkins v. Virginia requires that the death sentence in this case be set aside. Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

ANALYSIS

¶ 5. The standard of review after an evidentiary hearing in post-conviction-relief (PCR) cases is well settled. This Court has said:

"When reviewing a lower court's decision to deny a petition for post conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Brown v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Mississippi v. Southern Mem'l Park, Inc., 677 So.2d 186, 191 (Miss.1996)) (emphasis added). In making that determination, "[t]his Court must examine the entire record and accept `that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact....'" Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987) (quoting Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983)). That includes deference to the circuit judge as the "sole authority for determining credibility of the witnesses." Mullins, 515 So.2d at 1189 (citing Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963)).

Loden v. State, 971 So.2d 548, 572-573 (Miss.2007). However, "where questions of law are raised the applicable standard of review is de novo." Brown v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Mississippi v. Southern Mem'l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). The burden of proof at an evidentiary hearing on a PCR case is on the petitioner to show "by a preponderance of the evidence" that he is entitled to relief. Miss.Code Ann. § 99-39-23(7) (Rev.2007).

I. WHETHER DOSS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCING PHASE OF HIS TRIAL.

¶ 6. Doss asserts that defense counsel, Lee Bailey, failed to properly investigate the available mitigating evidence and presented only one witness in mitigation at the penalty phase.

¶ 7. The United States Supreme Court established a two-part test for determining a claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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.

Id. at 687, 104 S.Ct. 2052.

¶ 8. The Court further established that "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. With regard to an attorney's duty to investigate, the Court said the following in Strickland:

These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment.

Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.

¶ 9. This Court has applied the Strickland standard numerous times and has further said, "an attorney's lapse must be viewed in light of the nature and seriousness of the charges and the potential penalty." See Ross v. State, 954 So.2d 968, 1004 (Miss.2007) (citing State v. Tokman, 564 So.2d 1339, 1343 (Miss.1990)). In Ross, defense counsel offered, as mitigating evidence during the sentencing phase, the testimony of Ross' mother, grandmother, and daughter, a minister from the jail, and a sheriff who had arrested Ross. The testimony referenced Ross' character, and the witnesses described Ross as a "good prisoner." Id. at 1005. Counsel's failure to investigate Ross' inmate record led to the admission of highly prejudicial evidence on cross-examination. Ross' counsel also failed to conduct an adequate investigation into potentially mitigating factors, including Ross' psychological problems, and failed to obtain an expert to testify to these factors. This Court noted:

While courts must defer to lawyers' judgments and strategies, "at a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case." Ferguson v. State, 507 So.2d 94, 96 (Miss.1987). Under this standard, counsel may be deemed ineffective for relying almost exclusively on material furnished by the State during discovery and conducting no independent investigation. Id. While counsel is not required to exhaust every conceivable avenue of investigation, he or she must at least conduct sufficient investigation to make an informed evaluation about potential defenses. State v. Tokman, 564 So.2d at 1343.

Ross, 954 So.2d at 1005. This Court further said:

[C]ounsel will not be deemed ineffective if there is proof of investigation or if there is no factual basis for the defendant's claim. However, each of these principles presuppose a certain level of investigation. By contrast, "strategic choices made after less than complete investigation will not pass muster as an excuse when a full investigation would have revealed a large body of mitigating evidence." ... "It is not reasonable to refuse to investigate when the investigator does not know the relevant facts the investigation will uncover."

Ross, 954 So.2d at 1006 (citation omitted).

¶ 10. In his application for leave filed with this Court in 2003, Doss relied on affidavits¹ from several people with various connections to him, including: Lee Bailey, trial attorney; Kelvin Winbush, Bailey's investigator; Carolyn Watkins, the public defender who handled...