Mitchell v. State

• Decision Date: 19 August 2004
• Docket Number: No. 2002-DR-00479-SCT.,2002-DR-00479-SCT.
• Citation: 886 So.2d 704
• Parties: William Gerald MITCHELL a/k/a William Jerald Mitchell v. STATE of Mississippi.
• Court: Mississippi Supreme Court

886 So.2d 704

William Gerald MITCHELL a/k/a William Jerald Mitchell v. STATE of Mississippi.

No. 2002-DR-00479-SCT.

Supreme Court of Mississippi.

August 19, 2004.

Rehearing Denied December 2, 2004.

Office of Capital Post-Conviction Counsel by: Robert Ryan, attorney for appellant.

Office of the Attorney General by: Judy T. Martin Marvin L. White, Jr., attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Patty Milliken was murdered in Biloxi in 1995. At the time of Milliken's brutal murder, William Gerald Mitchell had been out on parole from a prior sentence of life in prison for murder. Mitchell was charged with the capital murder of Milliken committed while being under a sentence of life in prison. A jury found him guilty and sentenced him to death by lethal injection. This Court affirmed both the conviction and the sentence. Mitchell v. State, 792 So.2d 192 (Miss.2001), cert. denied, 535 U.S. 933, 122 S.Ct. 1308, 152 L.Ed.2d 218 (2002). Mitchell has now filed an application for leave to seek post-conviction relief in the trial court pursuant to Miss.Code Ann. § 99-39-5. Finding no merit to Mitchell's application, we deny leave to proceed in the trial court.

FACTS

¶ 2. On November 21, 1995, James Hartley saw William Gerald Mitchell enter the Majik Mart on Popps Ferry Road in Biloxi, Mississippi, three separate times to visit Patty Milliken while she was working her shift. Hartley overheard Milliken refer to Mitchell as "Jerry." When Milliken's shift ended that evening around 8:00 p.m., she and Hartley had yet to document the amount of cash they had placed in the safe that night. Milliken opened the safe and then telephoned her son that she would be home in fifteen minutes. According to Hartley, Milliken walked out of the store with Mitchell to smoke a cigarette and told him (Hartley) that she would be right back. Ten minutes later, Hartley walked outside to ask Milliken a question, but she was not there. Her belongings were inside the store, and her car was in the parking lot.

¶ 3. When Milliken had still not returned by 10:00 p.m., Hartley telephoned the police. Hartley gave Milliken's purse to police and showed them where she had written Mitchell's phone number. The police cross referenced the telephone number to a physical address and proceeded to 323 Croesus Street. The police arrived at the residence at approximately midnight and asked to speak to Mitchell. Mitchell ran, and the Biloxi Police Department issued an alert for Mitchell and his vehicle. A police officer later spotted Mitchell at a gas station on U.S. Highway 90. Mitchell again ran, and the police followed in pursuit. Mitchell was eventually caught and arrested for traffic violations. His passenger testified that Mitchell had stated that he (Mitchell) "got that bitch."

¶ 4. Patty Milliken's body was found the following morning under a bridge. She had been beaten, strangled, sexually assaulted both vaginally and anally, crushed by a car and mutilated. There was testimony that she was still alive when the car ran over her. Comparison tests conducted police that the tire casts from the area matched three of the four tires on Mitchell's car with regard to tread design and size. Police also found blood and hair on and under Mitchell's car.

ANALYSIS

I. Ineffective Assistance of Counsel.

¶ 5. "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, 80 L.Ed.2d 674 (1984). A claimant must demonstrate that counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. "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, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry is on whether counsel's assistance was reasonable considering all the circumstances. Id. A reviewing court must strongly presume that counsel's conduct falls within a wide range of reasonable professional assistance. Further, one who claims ineffective assistance must overcome another presumption that the challenged act or omission "might be considered sound trial strategy." Id. at 477.

¶ 6. As for the second prong of prejudice to the defense, a reviewing court must determine whether there 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.

¶ 7. In a death penalty case, the ultimate inquiry is "whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently re-weighs the evidence — would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. 2052. There is however, no constitutional right then to errorless counsel. Mohr v. State, 584 So.2d at 430. The right to effective counsel does not entitle a defendant to have an attorney who makes no mistakes at trial but simply affords the right to have competent counsel. If the post-conviction application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v. State, 743 So.2d 326, 334 (Miss.1999) citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).

a. Mental Retardation as a Mitigating Circumstance.

¶ 8. This Court has held that the "failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel." Williams v. State, 722 So.2d 447, 450 (Miss.1998) (citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)). Mitchell argues that trial counsel should have developed and presented evidence of mental retardation during the sentencing phase of the trial. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the U.S. Supreme Court held that execution of a mentally retarded prisoner violates the prohibition on cruel and unusual punishment in the Eighth Amendment. In the present case, there is no evidence in the record to suggest that Mitchell is mentally retarded within the meaning of Atkins. In fact, the record shows that Mitchell served four years in the military and attended college at Mississippi Valley State University for one semester. A clinical psychologist interviewed Mitchell for two hours after his arrest for murder in 1974. Dr. Donald Mathorne wrote that "it was obvious that the patient had at least average intellectual functioning and a significant deficit in cognitive functioning was not noted during the interview." Consequently, trial counsel cannot be faulted for failing to present mitigating evidence which did not exist. This issue is without merit.

b. Failure to Challenge the Aggravating Circumstance.

¶ 9. Mitchell next argues that trial counsel failed to challenge the factual basis for charging him with "avoiding arrest." Whether there was a sufficient factual basis for charging this particular aggravating circumstance was raised on direct appeal and soundly rejected.

¶ 10. This Court held that it was reasonable to conclude that Mitchell repeatedly ran over the victim's body in order to disguise the injuries he had already inflicted and that "there was sufficient evidence that the murder was committed in an effort to avoid lawful arrest." Mitchell, 792 So.2d at 220. Mitchell may not now recast the same issue as ineffective assistance of counsel. The issue is procedurally barred from further consideration on collateral review by the doctrine of res judicata. Miss.Code Ann. § 99-39- 21(3).

c. Failure to Challenge Venue.

¶ 11. Mitchell asserts that counsel was ineffective due to his failure to "actively" seek a change of venue. Since he is an African-American and the victim was white, Mitchell maintains that "it was imperative that he be tried in a county where the racial make-up was more favorable to him." This Court, however, has previously held that "a defendant has no right to a change of venue to a jurisdiction with certain racial demographics". De La Beckwith v. State, 707 So.2d 547, 597 (Miss.1997). Mitchell was entitled only to a trial by an impartial jury representing a fair cross-section of the community. Lanier v. State, 533 So.2d 473, 477 (Miss.1988). A motion for a change of venue is not automatically granted in a capital case. There must be a satisfactory showing that a defendant cannot receive a fair and impartial trial in the county where the offense is charged. Gray v. State, 728 So.2d 36, 65 (Miss.1998). Mitchell has made no such showing.

d. Failure to Secure a Speedy Trial.

¶ 12. Interestingly, this Court held on direct appeal that Mitchell was not denied his right to a speedy trial largely because he was already incarcerated for violating the terms and conditions of his parole. Mitchell, 792 So.2d at 213. Mitchell, on more than one occasion, waived the right to a speedy trial in order to allow defense counsel more time to evaluate the physical evidence and even to allow new counsel to become familiar with the case. Id. at 212. Since this Court has already held that Mitchell's defense suffered no prejudice from the delay, it follows that any purported omission by trial counsel in causing the delay could have had absolutely no adverse impact on the outcome of the trial within the meaning of Strickland v. Washington. This issue is without merit.

e. Demand for Jury Questionnaires.

¶ 13. Mitchell's last claim of ineffective assistance is that trial counsel...