Jordan v. State

Decision Date19 May 2005
Docket NumberNo. 1999-DR-01391-SCT.,1999-DR-01391-SCT.
Citation918 So.2d 636
PartiesKelvin JORDAN a/k/a Kelvin L. Jordan v. STATE of Mississippi.
CourtMississippi Supreme Court

James W. Craig, Stefanie M. McArdle, F. Keith Ball, for appellant.

Kelvin Jordan, appellant, pro se.

Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.


CARLSON, Justice, for the Court.

¶ 1. Kelvin Jordan was convicted by a Clarke County jury of two counts of capital murder in the shooting deaths of Tony Roberts and Codera Bradley, and after a separate hearing, the jury sentenced Jordan to death. This Court affirmed Jordan's direct appeal in Jordan v. State, 728 So.2d 1088 (Miss.1998). Rehearing was denied, and the United States Supreme Court denied certiorari. Jordan v. Mississippi, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999).

¶ 2. Jordan now seeks post-conviction relief pursuant to Miss.Code Ann. §§ 99-39-1 et seq. (Rev.2000). He raises numerous issues related to his trial and the effectiveness of his attorneys at trial and on appeal. After a full review of the claims raised in the petition, we find that Jordan's petition for post-conviction relief is without merit and should be denied.


¶ 3. On October 5, 1995, after smoking marijuana and drinking beer outside a Pachuta truck stop, cousins Kelvin Jordan and Frontrell Edwards formulated a plan to rob someone in order to get money to attend a football game. They discussed having to kill the victim so that they would not later be identified. Jordan had a .25 caliber pistol, and Edwards had a .22 pistol.

¶ 4. Previously that night, Tony Roberts had picked up his two-year-old son Codera Bradley from the child's mother's residence. When Roberts stopped at the truck stop, Edwards asked him for a ride. Roberts agreed, and Jordan and Edwards left with Roberts and the child. After heading south on Highway 35, Roberts stated that he had to work the next morning and he decided that he had driven Jordan and Edwards as far as he could. When he stopped the car, he was shot twice in the head. Codera was later shot in the head. Jordan and Edwards dumped the bodies on a wooded dirt road off the highway.

¶ 5. Law enforcement officers received an anonymous phone call implicating Edwards and Jordan in the killings. After a search of the trailer where the suspects were staying, officers found a pistol and items thought to have been stolen from Roberts's vehicle. Upon questioning by various officers, Jordan admitted that he and Edwards had robbed and killed Roberts and Bradley. In his statements to police, Jordan blamed Edwards for the shootings. However, Jordan did confess that he knew about the plan to rob someone, that he suggested to Edwards that they rob Roberts when Roberts pulled into the gas station, that he had a pistol when he left his house that afternoon, that he had fired a shot at Roberts, that he helped Edwards dispose of Roberts's body, and that he helped burn the car and get rid of the pistols.

¶ 6. After giving several statements, Jordan took the officers to the location of the bodies. Both victims had been shot in the head. Roberts's car had been stolen, and his pockets had been emptied. Jordan and Edwards had also stolen Roberts's Nike shoes. Jordan had stated that he had brought a .25 caliber pistol with him and that Edwards had a .22 caliber pistol. Edwards and Jordan had also used Roberts's .380 pistol at some point during the crime. Roberts had been shot twice in the head. One wound was a non-fatal shot that passed through Roberts's face. Codera had been shot once in the head. The medical examiner and the State's firearms expert were unable to determine which wounds had been caused by which pistol.

¶ 7. Jordan was indicted by a Clarke County jury on two counts of capital murder. He was tried and convicted of both counts, and the jury then considered punishment in a sentencing hearing. After weighing the aggravating and mitigating factors, the jury returned verdicts of death on both counts. Jordan appealed, and the two capital murder convictions and death sentences were affirmed unanimously by this Court. Jordan v. State, 728 So.2d 1088 (Miss.1998).

¶ 8. Jordan initially filed a pro se petition for post-conviction relief. In that filing, Jordan made only conclusory allegations without supporting argument. We consider those claims to be subsumed by the later filings made by the attorneys who later entered appearances on behalf of Jordan. In the petition filed by counsel, Jordan raises numerous issues regarding admission of evidence and ineffective assistance of counsel. Counsel for Jordan also filed an amended pleading in which he raised one additional issue as to whether Jordan was mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Finally, in his second amended petition, Jordan raises several new constitutional issues unrelated to issues previously argued. We will consider each issue raised by Jordan.

I. Psychological Examination in Presence of Law Enforcement

¶ 9. Jordan first alleges that he was denied his Fifth, Sixth, Eighth, and Fourteenth Amendment rights when Deputy Sheriff Todd Kemp was allowed to testify as to a comment he made during his mental evaluation by Dr. Reginald White. This claim was not raised at trial or on direct appeal to this Court and is, therefore, barred by the provisions of Miss.Code Ann. § 99-39-21(1). This Court has noted that:

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.

Foster v. State, 687 So.2d 1124, 1129 (Miss.1996). See also Bishop v. State, 882 So.2d 135, 149 (Miss.2004); Grayson v. State, 879 So.2d 1008, 1020 (Miss.2004); Wiley v. State, 750 So.2d 1193, 1208 (Miss.1999).

¶ 10. Prior to trial, the defense obtained permission to have Jordan examined by a psychiatric expert. Dr. Reginald White testified in the sentencing phase that after examining Jordan, he had determined that Jordan appeared to be a person who would be easily influenced or dominated by a stronger person such as Frontrell Edwards. He also testified that Jordan appeared to have low-average intelligence. During the State's rebuttal, the State called Deputy Sheriff Todd Kemp who testified that he had transported Jordan to Dr. White's office and that he had been present during Jordan's interview. Deputy Kemp testified that Jordan had stated during the examination that he had not been influenced by Edwards and that both of them had done what they wanted to do.

¶ 11. Jordan now maintains that allowing Deputy Kemp to listen in on the examination violated his constitutional rights. Jordan relies on the U.S. Supreme Court ruling in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which reversed the death sentence of a capital petitioner after a state psychiatrist testified in rebuttal at the sentencing hearing regarding comments made to him by the petitioner during a court-ordered competency evaluation. There the Court stated:

The Court has held that "the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967). In this case, the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist. Just as the Fifth Amendment prevents a criminal defendant from being made "`the deluded instrument of his own conviction,'" Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (1961)(quoting 2 Hawkins, Pleas of the Crown 595 (8th ed. 1824)), it protects him as well from being made the "deluded instrument" of his own execution.

451 U.S. at 462, 101 S.Ct. at 1873. Estelle is distinguishable from the case sub judice because in Estelle, the statement made by the psychiatrist — that the petitioner posed a future risk to the community — was directly used by the jury to sentence the petitioner to death.1 In the case sub judice, the statement made by the deputy refuted the psychiatrist's testimony that Jordan was easily influenced. There is nothing in the record to indicate that law enforcement surreptitiously placed Deputy Kemp in the room with Dr. White and Jordan during the examination for the sinister motive of eavesdropping to obtain incriminating evidence against Jordan for later use at trial. Additionally, similar testimony was allowed into evidence through Jordan's mother and was not directly rebutted by the State.

¶ 12. Pursuant to Miss.Code Ann. § 99-39-21 (Rev.2000), the failure to raise a claim "shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver." The section defines "cause" as "those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal." "Actual prejudice" is defined as "those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence." The petition must allege the necessary facts to prove cause and actual prejudice in order to overcome the...

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