Russell v. State

• Decision Date: 19 June 2003
• Docket Number: No. 97-DR-00046-SCT.,97-DR-00046-SCT.
• Citation: 849 So.2d 95
• Parties: Willie C. RUSSELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

849 So.2d 95

Willie C. RUSSELL v. STATE of Mississippi.

No. 97-DR-00046-SCT.

Supreme Court of Mississippi.

June 19, 2003.

Clive A. Stafford Smith, attorney for appellant.

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

EN BANC.

WALLER, Justice, for the Court.

¶ 1. Willie C. Russell was convicted of capital murder and sentenced to death for the murder of Argentra Cotton, a Mississippi Department of Corrections (MDOC) officer, on July 18, 1989, at the Mississippi State Penitentiary at Parchman. Russell was an inmate at the time of the murder, serving time on a conviction of armed robbery. On his first direct appeal to this Court, Russell's capital murder conviction was affirmed, but his sentence of death was reversed and remanded due to the circuit court's failure to determine Russell's habitual offender status prior to his sentencing hearing. See Russell v. State, 607 So.2d 1107 (Miss.1992)

. Russell was sentenced to death by the second sentencing jury. On direct appeal this Court affirmed the second death sentence. Russell v. State, 670 So.2d 816, 820 (Miss. 1995),

cert. denied, 519 U.S. 982, 117 S.Ct. 436, 136 L.Ed.2d 333 (1996). Pursuant to the Mississippi Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2002), Russell filed his Amended Petition for Post-Conviction Relief with this Court, the State has filed its Response, and Russell has filed his Second Amendment and Reply to Response, and the State has filed its Response. After thorough consideration the Court denies relief to Russell on all issues but one, that being Russell's claim that he is mentally retarded. On that issue the Court grants Russell leave to file in the Sunflower County Circuit Court a motion seeking post-conviction relief vacating his death sentence based upon his alleged mental retardation.

FACTS

¶ 2. The following statement of facts is taken from this Court's opinion on Russell's appeal from his second death sentence:

On July 18, 1989, while an inmate at the State Penitentiary in Parchman, Russell removed the 16" by 10" bottom air vent in his cell door, crawled through the space, and managed to secrete himself behind the stairwell pillar on the lower level of the unit in which he was housed. Russell, armed with a "shank," (homemade knife) waited in ambush for Corrections Officer Cotton. Russell's patience was rewarded at approximately 6:50 p.m. when Officer Cotton entered Zone 3 in which Russell was hiding. Cotton, unaware of Russell's presence, attempted to lock the door between Zone 2 and Zone 3. While Cotton's back was turned, Russell rushed Cotton and proceeded to stab him with the shank.

Officer Cotton, surprised by Russell's attack, attempted to escape by using a plastic food tray to repulse Russell's assault. Nonetheless, Russell followed Cotton, stabbed him in the back, and then held Cotton down with his knee and continued to stab him. During the attack, Russell's attention was momentarily drawn away by another guard allowing Cotton the opportunity to retreat into the guard control tower. Upon reaching the safety of the guard tower, Officer Cotton called for and received medical help. Cotton was first taken to the Parchman emergency room and subsequently transferred to the Bolivar County Hospital where he died as a result of internal bleeding. Russell, 607 So.2d at 1109-10.

Subsequently, Russell was indicted and convicted for killing a peace officer acting in his official capacity as a Correctional Officer of the Mississippi State Penitentiary in violation of Miss.Code Ann. § 97-3-19(2)(a). At trial, Russell took the stand and testified that he stabbed Officer Cotton because Cotton had taken twenty dollars from him in order to buy yeast for Russell. Evidently, Russell was going to use the yeast to make an alcoholic drink. However, according to Russell's testimony, Cotton never delivered the yeast, nor did he return Russell's twenty dollars.

The jury, after hearing overwhelming evidence as to Russell's guilt, returned a guilty verdict. After finding Russell guilty of capital murder, the jury sentenced Russell to death. On appeal, this Court affirmed the jury's determination of Russell's guilt, but reversed his death sentence as Russell, indicted as a habitual offender, was not allowed a habitual offender hearing before the penalty phase of his trial. See Turner v. State, 573 So.2d 657 (Miss.1990)

.

On Russell's resentencing, the venire and subsequent sentencing jury were drawn from Montgomery County Mississippi. However, for security reasons and the ease and convenience of transporting witnesses into court from Parchman, the trial was held in Sunflower County.

The second jury, after hearing evidence of the murder and all of the evidence that would tend to establish mitigating factors and aggravating factors, sentenced Russell to death. Specifically, the jury found the following aggravating factors: (1) The capital offense was committed by a person under a sentence of imprisonment; and (2) The Defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. Likewise, the jury found that there were "insufficient mitigating circumstance [sic] to outweigh the aggravating circumstance(s)."

Russell, 670 So.2d at 820.

The Stabbing of Officer Cotton as told in 1990

¶ 3. The version of the stabbing the jury heard in the 1990 trial came primarily from the testimony of A.J. Smith, Christopher Womber, Calvin Lee, Sylvester Clark and Russell himself.

¶ 4. Smith testified as follows: He was an inmate floorwalker for Officer Cotton on July 18, 1989, and was helping Officer Cotton serve the last meal of the day to the inmates when the stabbing took place. Officer Cotton was trying to lock the door between Zone 2 and 3 in Unit 24-B when Russell stabbed Officer Cotton in the back with a knife. Russell and Officer Cotton wrestled and fought and then went up the stairs and fought again. Russell stabbed Officer Cotton again at this time. At this time Officer Calvin Lee came to Officer Cotton's aid, striking Russell with Lee's night stick. Then Officer Cotton got away from Russell and both he and Lee went to the tower and locked the door. Officer Cotton did not have a weapon, and all Officer Cotton had in his hands, while trying to fight off Russell, was a plastic food tray. Russell stabbed Officer Cotton four or five times.

¶ 5. Christopher Womber, another inmate, corroborated most of Smith's testimony and testified as follows: He was in cell 33 in Unit 24-B on the date of the stabbing. An MDOC Officer Jones arrived after the stabbing and asked for the knife and Russell gave it to him. Russell stated that Officer Cotton had been "f* *king with him for three or four months." After Russell stabbed Officer Cotton the first time, Russell backed up, and then the two started fighting with the food trays. Russell could have followed Officer Cotton and Officer Lee into the control tower after the stabbing but did not, because there was a set of keys lying on the floor after the fight.

¶ 6. Calvin Lee, an MDOC officer working with Officer Cotton, testified as follows: He was in the control tower doing paper work while Officer Cotton was feeding the inmates with the Smith's help on July 18, 1989. The incident occurred about 6:50 p.m. At that time he heard a loud noise in Zone 3, "like all the food trays had been turned over." Lee left the tower and saw Russell swinging at Officer Cotton with a knife and Officer Cotton swinging a food tray for protection and backing away. Lee went back to the tower, got a night stick, and went back to the two, ordering Russell to drop the knife. When Russell refused and continued swinging the knife, Lee struck him "around his head and neck area" with the nightstick, breaking the stick. Russell turned his attention to Lee momentarily, but then went back to fighting with Officer Cotton. Lee followed the two, swinging his night stick at Russell again. At this time Officer Cotton was able to get away and into the control tower, followed by Lee. Lee saw Russell stab Officer Cotton twice.

¶ 7. Sylvester Clark, an MDOC officer, received a call from Officer Cotton. Officer Cotton told him that "he was having problems with inmate Willie Russell acting a fool over in "B" building." Officer Cotton "sounded as if he was out of breath." Officer Clark and several other officers went to 24-B Building. When they arrived, Officer Cotton was sitting at his desk writing in the register. Officer Cotton pointed to where Russell was standing. Officer Clark saw Russell "standing over in zone three all bloody with a sharp instrument in his hand and he was just standing there." Officer Clark went over to Russell and ordered him to drop the shank. Russell refused and yelled back, "come on with it." Officer Clark started back to get a gun which shoots wooden blocks when an Officer Jones told him to wait a minute. Officer Jones then spoke to Russell and Russell gave Officer Jones the shank. Russell was then restrained and handcuffed. According to Officer Clark, Russell then stated, "I stabbed that m.f. over there.... I told that m.f. that I was going to get him." After Russell was restrained, Officer Clark and the others went into the control tower and noticed that Officer Cotton was slipping out of his chair. They discovered at this time that the front of Officer Cotton's shirt was bloody. Officer Clark dialed the emergency number at Parchman. Officer Clark said he received Officer Cotton's call at around 6:50 p.m.

¶ 8. Rayford Jones, an MDOC officer, accompanied Officer Clark to 24-B Building when Officer Clark received a call from Officer Cotton. Officer Jones said Russell was standing in zone three and "he had blood all over his body from top all the way down at least to his waist."

¶ 9. Russell testified at trial as follows: He was supposed to be out as a floor walker on July 18, 1989, the...