King v. State, 94-DP-00216-SCT

• Decision Date: 01 June 1995
• Docket Number: No. 94-DP-00216-SCT,94-DP-00216-SCT
• Citation: 656 So.2d 1168
• Parties: Mack Arthur KING, v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1168

656 So.2d 1168

Mack Arthur KING, v. STATE of Mississippi.

No. 94-DP-00216-SCT.

Supreme Court of Mississippi.

June 1, 1995.

James W. Craig, Jackson, James E. Rocap, III, Stephen L. Braga, Scott L. Nelson, David S. Cohen, David R. Fontaine, Miller Cassidy Firm, Washington, DC, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, MS, William S. Boyd, III, Bryant Clark Dukes Firm, Gulfport, MS, for appellee.

En Banc.

BANKS, Justice, for the court:

This is a post-conviction relief proceeding involving the imposition of the death penalty and, inter alia, what has come to be known as the Clemons issue. Application of our post-Clemons jurisprudence dictates that we remand this case to the trial court for another sentencing hearing. That disposition effectively resolves all other issues raised having any possible merit.

I.

King was found guilty of capital murder and sentenced to death on December 5, 1980. He appealed. This Court affirmed his conviction and sentence. King filed a petition King then filed a petition for habeas corpus in the United States District Court for the Northern District of Mississippi, which denied relief. He appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit reversed. It held that the "especially heinous, atrocious or cruel" aggravating circumstance jury instruction presented to the jury in King's trial without a limiting instruction was unconstitutional. The case was remanded to the district court with directions to issue the writ of habeas corpus unless the State of Mississippi initiates the appropriate proceedings.

for rehearing. This Court rejected King's request.

In response, the State has called upon this Court to reweigh the aggravators or apply the harmless error analysis in reviewing King's sentence. King, however, urges this Court to remand his case to the trial court for a new sentencing hearing. In addition to the error concerning the "especially heinous, atrocious or cruel" aggravating circumstance, King raises three errors for review:

I. THE STATE'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE CONCERNING MACK ARTHUR KING'S PSYCHIATRIC EXAMINATION VIOLATED HIS RIGHT TO DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

A. THE STATE'S FAILURE TO DISCLOSE INFORMATION ABOUT MR. KING'S MENTAL CONDITION AND MEDICATION VIOLATED HIS RIGHT TO DUE PROCESS.

1. THE MISLEADING INFORMATION AND THE WITHHELD EXCULPATORY EVIDENCE ADVERSELY AFFECTED THE TRIAL PREPARATION.

2. THE MISLEADING EVIDENCE AND THE WITHHOLDING EXCULPATORY EVIDENCE DEPRIVED MR. KING AND THE JURY OF CRITICAL EVIDENCE DURING THE SENTENCING PHASE OF THE TRIAL.

B. THE STATE'S FAILURE TO DISCLOSE VITAL INFORMATION IN THE PSYCHIATRIC REPORT DEPRIVED MR. KING OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

II. MACK ARTHUR KING WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS WELL AS HIS RIGHT UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, WHEN THE STATE PSYCHIATRISTS ORDERED TO EVALUATE HIM BEFORE TRIAL FAILED TO CONDUCT AN ADEQUATE EVALUATION OF HIS MENTAL STATE AND FAILED TO MAKE AN ADEQUATE REPORT TO THE COURT AND TO DEFENSE COUNSEL.

III. RACIAL DISCRIMINATION IN THE SELECTION OF GRAND JURY FOREMEN DEPRIVED MR. KING OF HIS RIGHT TO EQUAL PROTECTION.

II.

For a comprehensive treatment of the underlying facts of the offense and the subsequent history, the reader is directed to the reported decisions of this court on direct appeal, King v. State, 421 So.2d 1009 (Miss.1982) and his prior application for post-conviction relief. King v. State, 503 So.2d 271 (Miss.1987).

Before reaching the merits of this case, this Court must determine whether the claims raised by King are properly before this Court. Miss.Code Ann. Sec. 99-39-21 provides:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the State of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this chapter upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.

actual prejudice grant relief from the waiver.

(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

(4) The term "cause" as used in this section shall be defined and limited to 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.

(5) The term "actual prejudice" as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.

(6) The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.

Additionally, Miss.Code Ann. Sec. 99-39-27(9) provides:

The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter. Excepted from this prohibition is an application filed pursuant to section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of an application relating to insanity under section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive applications on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the state of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

As the State argues, all of the claims raised by King, except for the "especially heinous, atrocious, or cruel" aggravating circumstance issue are barred by the above statutes. After King's second application for leave to petition the circuit court for writ of error coram nobis, this Court ordered an evidentiary hearing for the purpose of determining whether King was denied effective assistance of counsel at the sentencing phase of his trial. The circuit court found that King was afforded effective assistance of counsel at the sentencing phase of his trial. King v. State, 503 So.2d 271, 273 (Miss.1987). On appeal King argued that his counsel's failure to investigate and prepare a defense for the sentencing phase of trial deprived him of his constitutional right to counsel. This Court affirmed holding that King failed to establish that his counsel's performance was deficient. Id. at 274.

Now, King argues that the State deprived him of due process and effective assistance of counsel by failing to disclose information regarding his level of intelligence and need for medication. King is procedurally barred from raising this issue because the issue has already been litigated on a different theory.

For the first time, King has raised the issue that the psychiatrist ordered to examine him failed to conduct an adequate evaluation of his mental state, and that counsel failed to make an adequate report to the court and defense counsel, and that racial discrimination in the selection of grand jury foremen deprived him of his right to equal protection. Having failed to raise these issues We have consistently treated Clemons claims as exceptions to the procedural bar rule, under the intervening decision proviso of the statute. See Irving v. State, 618 So.2d 58 (Miss.1992); Gilliard v. State, 614 So.2d 370 (Miss.1992); Pinkney v. State, 602 So.2d 1177 (Miss.1992); Jones v. State, 602 So.2d 1170 (Miss.1992); Shell v. State, 595 So.2d 1323 (Miss.1992); and Clemons v. State, 593 So.2d 1004 (Miss.1992).

at trial or on direct appeal, King is deemed to have waived them, and is procedurally barred from raising them now.

III.

Although the State is well aware of this Court's holdings that it will not reweigh aggravating and mitigating circumstances, it nonetheless urges this Court to engage in such a task. In Wilcher v. State, 635 So.2d 789 (Miss.1993), this Court pointed out that it has repeatedly refused to reweigh aggravators and engage in harmless error analysis on the issue of the "especially heinous, atrocious or cruel" jury instruction.

In Wilcher, we refused to reweigh the aggravators against the mitigators, holding that Sec. 99-19-101 militated such a result. This Court pointed to its decision in Clemons II, 593 So.2d 1004 (Miss.1992). In that case, this Court held that under Miss.Code Ann. Sec. 99-19-101 (Supp.1991), "finding aggravating and mitigating circumstances, weighing them, and ultimately imposing a death sentence are, by statute, left to a properly instructed jury."

This Court also...