Edwards v. Thigpen, No. 53298

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: BROOM; PATTERSON; ROBERTSON; DAN M. LEE; BOWLING; DAN M. LEE
• Citation: 433 So.2d 906
• Decision Date: 23 March 1983
• Docket Number: No. 53298
• Parties: Leo E. EDWARDS, Petitioner, v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections; Eddie Lucas, Warden, Mississippi State Penitentiary; T.B. Bruce, State Executioner; and the State of Mississippi, Respondents .

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433 So.2d 906 Leo E. EDWARDS, Petitioner,
v.
Morris THIGPEN, Commissioner, Mississippi Department of
Corrections; Eddie Lucas, Warden, Mississippi
State Penitentiary; T.B. Bruce, State
Executioner; and the State of
Mississippi,
Respondents
. No. 53298. Supreme Court of Mississippi. March 23, 1983.
Rehearing Denied July 13, 1983.

Stanfield & Holderfield, Percy S. Stanfield, Jr., Wise, Carter, Child & Caraway, David W. Clark, Jackson, for petitioner.

Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for respondents.

En Banc:

BROOM, Presiding Justice, for the Court:

Coram nobis and/or habeas corpus relief from his prior conviction of murder while engaged in robbery, and death penalty sentence, is the thrust of Leo E. Edwards'

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amended application before us. ¹ Edwards v. State, 413 So.2d 1007 (Miss.1982). Facts set forth in the Edwards opinion show that he fatally shot the store clerk during the robbery--he was the trigger man. After this Court's affirmance as per the cited case, Edwards sought and was denied a writ of certiorari by the United States Supreme Court on October 12, 1982. His execution is presently stayed by order of the Supreme Court of Mississippi. We here address his application for post-conviction relief which was responded to by the attorney general's office.

Petitioner Edwards makes the following admission in his present application before this Court:

7. Some of the issues raised in the annexed petition have never been presented in this case to any court of the State of Mississippi; others have not been fully considered.

Any such points raised in the application which have been previously litigated and decided at trial or on appeal are res judicata and barred. Callahan, et al. v. State, 426 So.2d 801 (Miss.1983). With this factor in mind, we proceed to examine each point raised in Edwards' application as constituting grounds for granting leave to file his petition in the lower court.

The petitioner's first ground assigned is:

Exclusion for Cause of Jurors with Scruples Against the Death Penalty

Petitioner Edwards objected to the exclusion of Juror Hopkins at trial. On appeal, however, Juror Hopkins' exclusion was not assigned as error. In not assigning an error, Petitioner Edwards accepted the trial court's determination of the matter. The issue was adjudicated and is barred from consideration by way of post-conviction relief.

The petitioner's contention regarding Juror Hibler was argued on direct appeal and adjudicated in our original opinion, Edwards v. State, supra, which held that Juror Hibler was correctly excluded. This matter, having been previously litigated, is barred.

Petitioner's Edwards' second assigned ground for relief is:

Systematic Exclusion of Blacks and Those with Scruples against the Death Penalty.

As to the systematic exclusion of blacks from the jury, this issue was raised at trial in Edwards' motion to quash the special venire. At that time he received a ruling from the trial court which included specific findings of fact. This was not assigned as error on appeal and is barred.

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As to the exclusion of those with scruples against the death penalty, this issue was also raised by the petitioner in a pre-trial motion. The trial court denied it and the petitioner did not raise this point on direct appeal. Therefore, it was adjudicated and is barred.

Edwards' third assigned ground for relief is:

The Prosecutor's Introduction of a Separate and Distinct Crime.

This point was raised at the trial court level, properly preserved, and assigned as error in direct appeal and decided by this Court. This is a previously litigated matter and now barred.

Petitioner Edwards' fourth assigned ground for relief is:

The Prosecutor's Inflammatory and Prejudicial Remarks during Closing Argument.

The state contends that this ground is merely a variation of the petitioner's eighth assignment of error on direct appeal regarding the petitioner's "denial of effective assistance of counsel." Petitioner Edwards, on the other hand, vigorously maintains that this issue was not raised on appeal and is a separate grounds justifying post-conviction consideration. He contends that the assignment of error in the direct appeal had to do with assistance of counsel. The present issue is contended to be focusing on the inflammatory and prejudicial remarks of the prosecution. At this point it should be noted that if the issue were raised on appeal then it has been previously litigated and therefore is barred from consideration in the present proceedings. If it were not raised on appeal, then the petitioner has accepted the trial court's determination of the issue. Analysis for the petitioner's ground of relief shows that it was not raised on direct appeal. Objection was made at trial to the remarks of the district attorney, but the failure to specifically assign such as error in the direct appeal before this Court resulted in petitioner's acceptance of the trial court's determination of this issue; therefore it is now barred.

Petitioner Edwards' fifth assigned ground for relief is:

Disproportionate and Arbitrary Imposition of the Death Penalty.

Petitioner Edwards' ground for relief as set forth in the present proceeding is less than precisely framed but is grounded upon Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In his reply to the state's response to his application, petitioner asserts

The Mississippi capital punishment statute impermissibly allows the prosecutor complete discretion to select from among accomplices charged with a single crime those who will be tried for capital murder and those who will be allowed to plea bargain, and leaves the jury with unguided discretion to impose the death penalty without any finding of an intent to kill.

He then admits having raised the point at trial and on motion for a new trial, and on direct appeal here wherein we affirmed. Then he states this Court "has not yet considered Petitioner's case in light of Enmund v. Florida, [---] U.S. [----], 102 S.Ct. 3368 [73 L.Ed.2d 1140] (1982)." Obviously Enmund is not applicable because of the facts of the present case wherein clearly Edwards intended to kill and, as trigger-man, did kill. Upon instructions granted, the jury unanimously found that he committed the murder "for the purpose of avoiding arrest". Edwards' co-indictee, White, testified that Edwards admitted he "shot the sucker" to prevent identification. Language of Judge Clark in Gray v. Lucas, 677 F.2d 1086, 1103 (5th Cir.1982) is pertinent here:

[T]he jury...