Gilliard v. State
| Decision Date | 09 January 1985 |
| Docket Number | No. 55566,55566 |
| Citation | 462 So.2d 710 |
| Parties | Robert C. GILLIARD, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Lionel R. Barrett, Jr., Nashville, Tenn., for appellant.
Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III and Charles W. Maris, Jr., Sp. Asst. Attys. Gen., Jackson, for appellee.
En Banc.
ON APPLICATION FOR WRIT OF ERROR CORAM NOBIS
This Court affirmed the capital murder death sentence of Robert C. Gilliard, Jr. on February 16, 1983. Gilliard v. State, 428 So.2d 576 (Miss.1983). The United States Supreme Court denied petition for writ of certiorari to the Supreme Court of Mississippi on October 3, 1983. Application for leave to file petition for writ of error coram nobis was filed in this Court November 7, 1983, setting out twenty-nine (29) grounds for relief. We granted the application on two questions and remanded the cause to the Circuit Court of Jones County, Mississippi, for that purpose, 446 So.2d 590. The questions follow:
(1) Petitioner should be granted a new trial in view of the unconstitutional aspects of his plea of guilty.
(2) Petitioner was denied the effective assistance of counsel at his guilt and sentencing trials in violation of the Sixth, Eighth and Fourteenth Amendments.
The Circuit Court of Jones County conducted an evidentiary hearing on the two questions and resolved them against the petitioner, viz, that the petitioner's guilty plea was free and voluntary and the guilty plea and proceedings in connection therewith were not violative of petitioner's constitutional rights, and that petitioner was not denied the effective assistance of counsel at his guilt and sentencing trials in violation of the Sixth, Eighth and Fourteenth Amendments. The petitioner has appealed to this Court from the decision of the Jones County Circuit Court on those questions.
Did the lower court err in concluding that the guilty plea, and the proceedings surrounding such plea, were constitutionally sufficient?
In order to meet constitutional standards, a guilty plea must be freely and voluntarily entered. It is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).
The petitioner expressed his desire to enter a plea of guilty to capital murder at the guilt phase of his trial. Before determining whether the guilty plea should be accepted, the trial judge conducted a lengthy interrogation of the petitioner for the purpose of ascertaining whether or not petitioner fully understood the charge against him, the critical elements of the charge, the possible adverse effects of a guilty plea and that, if the guilty plea were accepted by the court, a jury would then be impaneled and the jury could fix his punishment at death. The interrogation and answers of the petitioner consumed eight (8) pages in the trial record. The expressions and answers of the petitioner appear from the record to be clear, lucid, and knowledgeable. At one point in the interrogation, petitioner stated that he did not wilfully kill Grady Chance. That part of the interrogation is set forth:
Q. Do you realize that when you plead guilty to this charge now before you, that you are saying to this Court that you did on or about the 27th day of August, 1981 here in the Second Judicial District of Jones County, Mississippi, that you did unlawfully, wilfully and feloniously, with malice aforethought, kill and murder one Grady Chance, a human being while you were engaged in the commission of the crime of robbery upon him in violation of Section 97-3-19(2)(e) of the Mississippi Code of 1972, as amended?
Do you realize that's what you are telling the Court?
A. Yes, sir.
Q. Before the Court will accept your plea of guilty the Court must be absolutely satisfied that you understand what you are pleading guilty to.
I have read what the indictment charges you with, and you said that you understood that, but I want to fully understand that you understand each part of it.
You will be telling this Court that this crime occurred on the 27th day of August, 1981; is that what you are telling the Court?
A. Yes, sir.
Q. Are you telling the Court that this happened there in the Second District of Jones County, Mississippi?
A. Yes, sir.
Q. You are telling the Court that you unlawfully killed Grady Chance?
A. Yes, sir.
Q. You are telling the Court that you willfully killed Grady Chance?
A. No, sir.
Q. You are not telling us that you did willfully do it?
* * * (Conference between Defendant and Public Defender)
A. Oh, yes, sir.
Q. You are telling the Court that you feloniously killed him, with malice aforethought?
A. Yes, sir.
Q. You are also telling the Court that this was done--that this killing occurred while you were engaged in the commission of the crime of robbery?
A. Yes, sir.
Q. Is that what you are telling the Court?
A. Yes, sir.
Q. The purpose of this hearing, as I have stated to you, is to see if you enter your plea freely, voluntarily and intelligently, and I have already explained to you what a jury could do even though you pleaded guilty, and you said you understood that, and is that correct?
A. Yes, sir.
Q. Has anyone offered you anything to get you to plead guilty?
A. No, sir.
The petitioner was called by his own counsel and he was the only witness who testified at the coram nobis hearing. The State offered no witnesses. Petitioner stated that he repeatedly told his attorney the gun went off accidentally, but that his attorney advised him to plead guilty anyway. His position on this question is that he entered the plea of guilty because his attorney told him to do so.
The coram nobis record reflects that petitioner and his attorney discussed the guilty plea at length and on more than one occasion before it was entered; he and his attorney met with petitioner's three sisters and discussed the guilty plea and trial strategy with them; two of the sisters were in favor of pleading guilty, while one of them opposed it. Apparently the petitioner and his attorney discussed the overwhelming evidence against petitioner, viz, testimony of an accomplice, an eyewitness (Mrs. Grady Chance), and petitioner's own confession. Also, it appears that the strategy was for petitioner to be frank with the jury, and hope to arouse their sympathy. Further, there was considered the possibility of excluding certain evidence.
We are of the opinion that the petitioner had full knowledge of the charge against him, the elements of that charge, and the consequences which might result from entering a plea of guilty, and we are of the opinion that the finding of the lower court that the plea of guilty was free and voluntary and was not constitutionally infirm does not constitute error.
Did the lower court err in deciding that the petitioner received effective assistance of counsel in view of Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)?
Strickland, decided May 14, 1984, is the most recent case of the United States Supreme Court addressing the question of ineffective assistance of counsel. That Court, speaking through Justice O'Connor, set forth the following important principles dealing with this troublesome question:
(1) There is 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.
(2) The two-prong test to determine whether or not defense counsel was constitutionally ineffective is
(a) The petitioner must show that counsel's conduct was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment, and
(b) If the petitioner can show that his counsel was ineffective, then he must show that he was prejudiced by counsel's mistakes.
Strickland states the standard: --- U.S. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Applying the standard set forth in Strickland to the effectiveness of petitioner's counsel, we now consider the nine (9) alleged errors in the original trial, which petitioner claims rendered his trial counsel ineffective in violation of his Sixth Amendment right.
(1) The trial counsel improperly assisted the petitioner to have a preliminary hearing granted in this case.
The petitioner has put on no proof that the failure to have a preliminary hearing was not a strategic move. Also, he has shown no prejudice from the failure to have a preliminary hearing. Further, petitioner has failed to show any advantage or benefit he could have gained from having a preliminary hearing, therefore, we are of the opinion that petitioner has not met the Strickland test.
(2) Petitioner's counsel did not comply with the Mississippi statute concerning the raising of the question of change of venue.
At the trial, petitioner's counsel made a motion for change of venue, but the motion did not follow the statute and counsel did not pursue the change of venue. Again, petitioner has not shown prejudice and there is no indication that a change of venue would have effected a different result in the trial.
(3) The trial counsel failed to request individual sequestered voir dire during the selection of the jury for the sentence trial.
This Court has approved questioning the jury as a panel provided the defense is given adequate opportunity to question...
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