Foster v. State

Decision Date16 May 1996
Docket NumberNo. 95-DP-00750-SCT,95-DP-00750-SCT
Citation687 So.2d 1124
PartiesRonald Chris FOSTER a/k/a Ron Chris Foster v. STATE of Mississippi.
CourtMississippi Supreme Court

Andre de Gruy, Jackson, for appellant.

Michael C. Moore, Attorney General; Marvin L. White, Jr., Assistant Attorney General, Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

This matter comes before this Court upon an Application for Leave to File Motion to Vacate Conviction and/or Death Sentence pursuant to our Post-Conviction Collateral Relief Statute, Miss.Code Ann. § 99-39-1, et seq. (Supp.1994). The crime underlying Foster's petition for relief is the shooting of a store clerk, George Shelton, during the commission of a robbery. See Foster v. State, 639 So.2d 1263 (Miss.1994). The procedural history of the case shows that Foster was convicted for the crime of capital murder and sentenced to death on January 18, 1991, in the Lauderdale County Circuit Court for the killing of George Shelton. Foster appealed this decision raising twenty-six assignments of error, among which were the issues of particularized findings for juvenile death penalty recipients, the "robbery-murder-pecuniary gain" aggravator, and the failure to grant certain jury instructions. Foster v. State, 639 So.2d 1263, 1268-70 (Miss.1994). The conviction was affirmed, and Foster filed a writ of certiorari to the United States Supreme Court, which was denied. Foster v. State, 639 So.2d 1263 (Miss.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995). In that certiorari petition, Foster again raised the issues of particularized findings for juvenile death penalty recipients, and whether the same facts can support two separate aggravating circumstances. A petition for rehearing ensued, and was also denied. Foster v. State, 639 So.2d 1263 (Miss.1994), reh'g denied, --- U.S. ----, 115 S.Ct. 1992, 131 L.Ed.2d 878 (1995). The federal district court for the Southern District of Mississippi had stayed his execution, to which the State has entered a motion to vacate stay. The State's motion was recently granted on November 8, 1995.

On July 21, 1995, Foster filed with this Court his motion for post-conviction collateral relief. We stayed the execution on July 24, 1995, and now, we turn to the merits of his petition. Foster advances one main issue--that he received ineffective assistance of counsel at the trial during the sentencing phase, and then again at the appellate level. Bear in mind the following: At trial, Foster was represented by Michael R. Farrow, Bill Cunningham, and James B. Wright. His past attorneys, on direct appeal, include James W. Craig, Jane E. Tucker, and Andre de Gruy, all employees of the Mississippi Capital Defense Resource Center. Farrow and Wright filed appearances for Foster's direct appeal. Currently, for the Application for Post Conviction Relief Motion, Andre de Gruy is Foster's primary counsel. Craig and Tucker are still Foster's attorneys because their Motion to Withdraw was denied by this Court.

Thus, in this Application presently before the Court, we essentially have one attorney of the Resource Center alleging that Foster received ineffective assistance of counsel from members of his own firm. The State has advanced the position that this action by the Resource Center broaches an ethical conflict in violation of the Rules of Professional Conduct, especially Rule 1.10, comment, definition of "firm." We need not address the State's ethical conflict issue, as there are other procedural avenues readily available to the State to air its legitimate and pressing concerns.

A review of the issues raised by Foster reveals many to be barred, but all are without merit. We must deny Foster's application for post-conviction collateral relief.

ISSUE

WHETHER FOSTER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

DISCUSSION OF LAW

Post-Conviction Collateral Relief

Post-conviction proceedings are for the purpose of bringing to the trial court's attention facts not known at the time of judgment. Smith v. State, 477 So.2d 191 (Miss.1985). The Post-conviction Collateral Relief Act provides a procedure limited in nature to review those matters which, in practical reality, could not or should not have been raised at trial or on direct appeal. Turner v. State, 590 So.2d 871 (Miss.1991); Cabello v. State, 524 So.2d 313, 323 (Miss.1988).

Procedural bars of waiver, different theories, and res judicata and exception thereto as defined in post-conviction relief statute are applicable in death penalty post-conviction relief application. Lockett v. State, 614 So.2d 888 (Miss.1992), cert. denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994). We have repeatedly held that a defendant is procedurally barred by waiver from making a challenge to a capital sentencing scheme as a whole in a petition for post-conviction relief where the issue was capable of determination at trial and/or on direct appeal but was not raised, and defendant failed to show cause or actual prejudice for not raising the issue on direct appeal. Lockett v. State, 614 So.2d 898 (Miss.1992), cert. denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994); Smith v. State, 477 So.2d 191 (Miss.1985). Post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial and on appeal. "The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal." Miss.Code Ann. § 99-39-21(3) (Supp.1994). We must caution that other issues which were either presented through direct appeal or could have been presented on direct appeal or at trial are procedurally barred and cannot be relitigated under the guise of poor representation by counsel.

Ineffective Counsel Claim

"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).

The Mitigation Evidence

Foster claims that his trial counsel failed to adequately investigate and present mitigation evidence, resulting in ineffective assistance of counsel at the sentencing phase. This is not a case where counsel failed to offer any mitigating circumstances or evidence to the contrary. In addition to the testimony and evidence revealed during the guilt phase, Foster's counsel also introduced the testimony of Stevson Foster and Lillie Mae Foster during the sentencing phase. The list of circumstances or factors offered for mitigation and the closing argument of counsel made at the end of the sentencing phase show that counsel did indeed investigate Foster's case for mitigation.

The areas of mitigation on which Foster...

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