Evans v. State
| Decision Date | 19 February 1986 |
| Docket Number | No. 53754,53754 |
| Citation | 485 So.2d 276 |
| Parties | Connie Ray EVANS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Shirley E. Payne, Horn & Payne, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
ON APPLICATION FOR LEAVE TO FILE MOTION TO VACATE, OR SET
ASIDE, JUDGMENT AND SENTENCE
Petitioner Connie Ray Evans was indicted for the capital murder of Arun Pahwa on April 8, 1981, during an armed robbery of a convenience store in Jackson, Mississippi. He entered a guilty plea to the capital murder on October 12, 1981, and was tried on the issue of sentence and punishment. On October 13, 1981, a jury sentenced petitioner to death and a mandatory appeal to the Supreme Court of Mississippi followed.
In a written opinion dated November 3, 1982, Evans v. State, 422 So.2d 737 (Miss.1982), the Supreme Court of Mississippi affirmed the sentence and petition for rehearing was denied December 15, 1982.
The United States Supreme Court denied certiorari on May 16, 1983, and denied a rehearing. Evans v. Mississippi, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 314 (1983).
On July 1, 1983, petitioner filed an Application for Leave to File a Petition for Writ of Error Coram Nobis pursuant to Mississippi Code Annotated Sec. 99-35-145 (repealed April 17, 1984, Ch. 378, Miss.Laws 1984) with the Mississippi Supreme Court. On November 30, 1983, we rendered a written opinion denying the application and holding that the claims raised on direct appeal were res adjudicata and that others were procedurally barred. Evans v. State, 441 So.2d 520 (Miss.1983). Rehearing was denied on January 25, 1984. Petitioner sought a stay of execution pending review by the United States Supreme Court from the denial of coram nobis relief. The application was denied by the United States Supreme Court on June 25, 1984. Evans v. Mississippi, 467 U.S. 1264, 104 S.Ct. 3558, 82 L.Ed.2d 860 (1984).
On February 4, 1984, petitioner filed a petition for writ of habeas corpus in the United States District Court, Southern District of Mississippi [Evans v. Morris Thigpen, Commissioner, et al., Civil Action No. J84-0090(L) ]. The petition is presently pending in said court.
The present application before us was filed in this Court on July 12, 1985, and presents two claims, viz, ineffective assistance of trial counsel and prejudicial jury selection prohibited by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and cases following Swain. Those claims were not raised in any proceeding prior to the present application. The respondent (State) contends that the petitioner has not adequately explained his failure to present such issues in a timely and diligent manner and that for procedural failure and substantive causes, the application should be dismissed.
WAS NOT KNOWINGLY AND INTELLIGENTLY MADE SINCE IT WAS THE
PETITIONER RELIED TO HIS MATERIAL DETRIMENT.
1. Petitioner was represented by trial counsel who had been in practice for only four (4) years at the time of petitioner's trial and had little real experience in capital cases. He served as lead counsel in petitioner's case.
2. Trial counsel filed a motion for appointment of a defense psychiatrist but failed to follow up. On the morning of the guilty plea, counsel relied on representations that there were no problems uncovered.
3. Counsel recommended to petitioner that he plead guilty on the basis of counsel's understanding of Coleman v. State, 378 So.2d 640 (Miss.1979). It was counsel's understanding that the State's case would be limited at the penalty phase only to evidence relevant to the eight (8) enumerated statutory aggravating circumstances and that, on a guilty plea, he could exclude all evidence of the crime and of premeditation from the penalty hearing. Petitioner pled guilty in reliance upon counsel's legal advice.
4. Counsel's legal advice was below "the range of competence demanded of attorneys in criminal cases." Counsel based his conclusion on a literal reading of Coleman, id., 378 So.2d at 648, without regard either to the different procedural postures of that case or the clear language of Mississippi Code Annotated Sec. 99-19-101(1), and that he was incompetent in assuming he could keep out information about the crime itself clearly relevant to sentence, such as evidence on the issue of premeditation under statute that allows "any matter that the court deems relevant to sentence."
5. The advice given by counsel to petitioner, upon which petitioner relied in pleading guilty, was particularly in error in that counsel told petitioner evidence on the issue of premeditation could be excluded. Counsel's advice, upon which petitioner relied in pleading guilty, that such evidence could be excluded, was beneath the range of competence demanded of attorneys in criminal cases.
6. Counsel failed to ascertain whether petitioner understood the basis of the plea; failed to obtain the psychological report to ascertain petitioner's mental state or ability to intelligently waive his right to trial and failed to ascertain independently whether petitioner understood counsel's advice.
7. Petitioner's guilty plea was not a knowing and intelligent waiver of his right to trial by jury, and was a result of ineffective assistance of counsel. Petitioner would not have entered a plea of guilty except for counsel's erroneous advice and petitioner relied upon counsel's advice in deciding to plead guilty resulting in the loss of his rights to trial by jury and effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
AT THE SENTENCING PHASE AND ON APPEAL IN VIOLATION
OF THE SIXTH AMENDMENT.
1. Counsel failed to adequately prepare and present a reasonable and credible case in mitigation; he did not obtain the psychological report from the State psychiatrist prior to trial; he did not develop relevant mitigating evidence about petitioner's character and history; was not diligent in meeting with witnesses and decided not to use any of them; failed to call petitioner's pastor, but called the witness Reverend Owen whose testimony was excluded because he had no first-hand testimony about petitioner.
2. During the cross-examination of petitioner at the sentencing trial, the State displayed slides of the victim for the jury to see by means of projected color slides which were left exhibited before the jury for approximately fifteen (15) minutes. The purpose and effect of the display was to inflame and prejudice the jury against petitioner. Counsel failed to object to the slides.
3. Counsel failed to raise issues hereinbefore mentioned and reiterated in Paragraph B(19) of the motion to vacate.
4. Counsel was ineffective and operated to the prejudice of petitioner. Counsel failed to develop and present that petitioner is a man of low intelligence with psychological problems; that he was suffering from depression at the time of the murder; that he had no prior history of violence; that he presented a good prospect for rehabilitation and little evidence of future dangerousness, and, but for counsel's ineffectiveness, the result of the proceeding would have been different.
THE PROSECUTION INTENTIONALLY USED ITS PEREMPTORY
GUARANTEED BY THE SIXTH AMENDMENT.
1. The respondent used its peremptory challenges to strike black prospective jurors, which resulted in a jury consisting of eight (8) white persons and four (4) black persons. Prosecutor Peters engaged in purposeful and systematic attempts to remove blacks from juries; and District Attorney Peters has confirmed that his philosophy is to strike black persons off juries in both capital and non-capital cases.
2. Because of District Attorney Peters' admissions with reference to striking black persons, the Federal District Court has ordered that an evidentiary hearing be held to determine whether he has engaged in a systematic and intentional practice of excluding black persons from juries in criminal trials by utilizing peremptory challenges. 1
3.--4. These subsections further argue the proposition that the prosecutor's use of peremptory challenges to exclude blacks violated petitioner's Sixth, Eighth and Fourteenth Amendments rights to a jury consisting of a fair cross-section of the population, equal protection, and freedom from the arbitrary and capricious infliction of the death sentence.
Petitioner seeks to vacate or set aside his judgment of conviction and sentence of death under the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated Secs. 99-39-1, et seq. (Supp.1985). Recognizing that there must be finality and an end at some reasonable time to litigation in criminal cases, the legislature adopted the act
to revise, streamline and clarify the rules and statutes pertaining to post-conviction collateral relief law and procedures, to resolve any conflicts therein and to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences.
Miss.Code Ann. Sec. 99-39-3(1) (Supp.1985).
The act further provides:
(2) Direct appeals shall be the principal means of reviewing all criminal convictions and sentences, and the purpose of this chapter is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.
Miss.Code Ann. Sec. 99-39-3(2) (Supp.1985)....
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