Jones v. State, 2009-CA-02033-COA

• Decision Date: 23 August 2011
• Docket Number: NO. 2009-CA-02033-COA,2009-CA-02033-COA
• Parties: BRETT JONES APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

BRETT JONES APPELLANT v. STATE OF MISSISSIPPI APPELLEE

NO. 2009-CA-02033-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

DATE OF JUDGMENT:November 19, 2009

DISPOSITION: AFFIRMED: August 23, 2011

TRIAL JUDGE: HON. THOMAS J. GARDNER III

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: SYLVIA S. OWEN

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

SCOTT STUART

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF

DENIED

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE IRVING, P.J., BARNES AND MAXWELL, JJ.

MAXWELL, J., FOR THE COURT:

¶1. Brett Jones seeks post-conviction relief from his murder conviction and life sentence. On appeal, he alleges numerous errors, primarily concerning his trial counsel's effectiveness. Because Jones has failed to make the required two-part showing of (1) deficiency and (2) prejudice under Strickland on any of the issues raised, we affirm.

FACTS

I. BACKGROUND¹

¶2. At the times pertinent to this case, Jones lived with his grandparents in Shannon, Mississippi. On August 9, 2004, Jones's grandfather, Bertis Jones, discovered Jones's girlfriend, Michelle Austin, in Jones's bedroom. This angered Bertis, and he ordered Austin to leave his house, which she did. Austin later testified at trial that following this incident, Jones warned "he was going to hurt his granddaddy."

¶3. Jones testified that later the same day he and his grandfather got into an argument in the kitchen. According to Jones, Bertis's temper escalated, and he yelled at Jones and pushed him. When Jones pushed back, Bertis purportedly tried to hit him. After being cornered, Jones threw a steak knife—he claimed he already had in his hand from making a sandwich—which struck Bertis. Unfazed, Bertis attacked Jones, prompting Jones to stab Bertis. As the fight continued, Jones grabbed a different knife—a filet knife—and stabbed Bertis with it. Jones contends he was unable to escape.

¶4. After repeatedly stabbing his grandfather, Jones claimed he attempted to perform CPR but could not revive Bertis. Jones dragged Bertis's dead body into the laundry room and shut the door. Jones then tried to wash the blood off of himself with a water hose. He also threw his blood-soaked shirt in the garbage. In an effort to conceal blood stains on the carport floor, Jones parked Bertis's car over them.

¶5. A neighbor heard an old man "holler out he was in pain." Two or three minutes later,the neighbor encountered Jones, who was covered in blood. The neighbor testified Jones was carrying a knife, trembling, and saying "Kill, kill." The neighbor conveyed his encounter with Jones to his landlord. The landlord spotted Jones in the bushes near Jones' grandparents' house. When the landlord asked where Jones's grandfather was, Jones claimed Bertis had left. The landlord pointed out that Bertis's car was in the carport. Yet Jones still defended his false story that Bertis was not there. Jones also told the landlord the blood on him was fake and "a joke." According to the landlord, Jones left with a young lady. The landlord inspected the bushes where he had seen Jones and found an oil pan containing blood.

¶6. Jones and Austin began walking together. Jones testified he and Austin planned to travel to Walmart to meet his grandmother to explain what had happened. But before they arrived, police apprehended the couple at a gas station. Both Jones and Austin gave false names to the arresting officers. During a pat down of Jones, an officer found a knife. The officer asked if it was the knife Jones "did it with." Jones told him, "No, I already got rid of it."

¶7. Investigator Scotty Reedy of the Lee County Sheriff's Department interviewed Jones. After voluntarily waiving his Miranda² rights and executing a written waiver, Jones provided an account similar to his later trial testimony.³ He claimed he was making a sandwich in the kitchen with a knife in his hand, when he and his grandfather got into an argument. ThinkingBertis was about to hit him, Jones responded by stabbing Bertis in the chest. Upon Bertis's alleged continued retaliation attempts, Jones stabbed Bertis repeatedly. In his statement Jones also admitted telling Austin following the incident that he had "murdered" his grandfather.

¶8. An examination of Bertis's body revealed he had been stabbed eight times. According to Dr. Stephen Hayne, who performed the autopsy, there were abrasions consistent with the body being dragged. There were also cuts on Bertis's hand, which Dr. Hayne classified as "defensive posturing injuries."

¶9. The jury found Jones guilty of murder. The circuit court sentenced him to life imprisonment. On direct appeal, Jones claimed his conviction was not supported by sufficient evidence or by the weight of the evidence. He also challenged the court's admission of certain photographs. This court found no error and affirmed his conviction and life sentence. Jones v. State, 938 So. 2d 312 (Miss. Ct. App. 2006).

II. POST-CONVICTION FACTS

¶10. On July 30, 2008, the Mississippi Supreme Court granted Jones leave to seek post-conviction relief in the trial court. Jones filed his PCR motion on August 6, 2008. The circuit court later held a full evidentiary hearing. Jones's father, Tony Jones, and grandmother, Madge Jones, both testified at the hearing, as did Jones's two trial attorneys, William Bristow and Robert Laher. Bristow served as Jones's appointed trial counsel, and Laher represented Jones pro bono. Jones's uncle, Michael Jones, testified as the State's sole witness.

¶11. The circuit judge denied Jones's PCR motion. The judge observed that Jones madenumerous vague and conclusory allegations of constitutional-rights violations. When pared down, he found the overarching issue was the alleged ineffectiveness of Jones's trial counsel. Finding that Jones's attorneys' decisions were calculated and strategic, the circuit judge denied Jones's PCR motion, holding that Jones had failed to satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668 (1984).

III. JONES'S CLAIMS ON APPEAL

¶12. On appeal, the thrust of Jones's allegations focus on his attorneys' purported ineffective assistance. The numerous alleged deficiencies include: (1) not requesting a mistrial when two jurors received unredacted copies of Jones's statement to police; (2) withdrawing a motion to suppress his statement to police; (3) not conducting a sufficient investigation; (4) failing to call two witnesses (Jones's grandmother, Madge, and father, Tony); (5) failing to discover during voir dire that two jurors were related to the victim's family; (6) stipulating to Dr. Hayne's qualifications; (7) not presenting expert testimony rebutting Dr. Hayne's testimony; (8) failing to object to the prosecutor's statement during voir dire that "this is not a death penalty case"; (9) wrongfully advising Jones that his case would never go to trial. He also claims: (10) his appellate counsel was ineffective for not raising many of these same issues; (11) his sentence constitutes cruel and unusual punishment; and (12) the cumulative effect of multiple errors deprived him of a fair trial.

STANDARD OF REVIEW

¶13. In considering the denial of a PCR motion, we review the trial court's findings of fact for clear error. Rowland v. State, 42 So. 3d 503, 506 (¶8) (Miss. 2010). "A finding of fact is 'clearly erroneous' when, although there is evidence to support it, the reviewing court, onthe entire evidence, is left with the definite and firm conviction that a mistake has been made." Johns v. State, 926 So. 2d 188, 194 (¶29) (Miss. 2006). We accept as true any evidence, together with the reasonable inferences that may be drawn from that evidence, which supports the trial court's findings. Loden v. State, 971 So. 2d 548, 572 (¶59) (Miss. 2007). As to credibility issues, we defer to the circuit judge who is the "sole authority for determining credibility of the witnesses." Id. at 572-73 (¶59). When reviewing questions of law, our standard is de novo. Rowland, 42 So. 3d at 506 (¶8). The PCR movant has the burden to show by a preponderance of the evidence that he is entitled to relief. Miss. Code Ann. § 99-39-23(7) (Supp. 2010).

DISCUSSION

¶14. To prevail on a claim of ineffective assistance of counsel, Jones must establish: (1) his attorney's performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To qualify as deficient, an attorney's performance must fail to meet "an objective standard of reasonableness." Id. at 688. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, . . . the challenged action might be considered sound trial strategy." Id. at 689 (citation and quotations omitted).

¶15. Generally, "counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim." Jackson v. State, 815 So. 2d 1196, 1200 (¶8) (Miss. 2002) (citation and quotations omitted); see also Turner v. State, 953 So. 2d 1063, 1073 (¶36) (Miss. 2007). For prejudice to exist, there must be a "reasonableprobability 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." Strickland, 466 U.S. at 694.

¶16. The PCR movant has the burden to show both prongs of Strickland are met. Moody v. State, 644 So. 2d 451, 456 (Miss. 1994). His allegations under both prongs must be pled with specific detail. Jenkins v. State, 986 So. 2d 1031, 1035 (¶14) (Miss. Ct. App. 2008) (citing Brooks v. State, 573 So. 2d 1350, 1354 (Miss. 1990)). And the movant may not rely on mere allegations in his affidavit or brief. Vielee v. State,...