Simon v. State
| Decision Date | 18 September 2003 |
| Docket Number | No. 98-DR-00517-SCT.,98-DR-00517-SCT. |
| Citation | 857 So.2d 668 |
| Parties | Robert SIMON, Jr., v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
T.H. Freeland, IV, for appellant.
Office of Attorney General, by Marvin L. White, Jr., attorney for appellee.
EN BANC.
¶ 1. Robert Simon, Jr. was convicted of three counts of capital murder in October of 1990, and sentenced to death on each count. The charges originated from his participation in the murders of four members of the Parker family in Quitman County, Mississippi. Simon had previously been convicted of one count of capital murder for the murder of Charlotte Parker, but the jury could not reach a unanimous verdict concerning his punishment so he was sentenced to life imprisonment. See Simon v. State, 633 So.2d 407 (Miss.1993) (Simon I)
, vacated and remanded, 513 U.S. 956, 115 S.Ct. 413, 130 L.Ed.2d 329 (1994), on remand, Simon v. State, 679 So.2d 617 (Miss.1996).1 These three remaining convictions are for the murders of Carl, Bobbie Joe, and Gregory Parker that same evening. This Court affirmed these verdicts on direct appeal. See Simon v. State, 688 So.2d 791 (Miss.1997) (Simon II), cert. denied, 521 U.S. 1126, 117 S.Ct. 2524, 138 L.Ed.2d 1025 (1997).
¶ 2. Simon filed a pro se petition for post-conviction relief and supporting memorandum with this Court on April 2, 1998, and also contemporaneously filed a motion for leave to amend this application should counsel be appointed to represent him. Counsel was appointed on January 12, 2001, filed a separate petition for post-conviction relief on July 13, 2002, and filed a final amended petition for post-conviction relief on October 30, 2002. Attached to this petition is a motion for leave to proceed in the trial court. This opinion addresses the claims raised in all three petitions. The petitions seek relief from the guilty verdicts returned and death sentences imposed for the murders of Carl, Bobbie Joe, and Gregory Parker. After due consideration, we find the motion and petitions should be denied.
¶ 3. Carl and Bobbie Joe Parker, and their children Charlotte and Gregory, were last seen alive leaving their church around nine o'clock the evening of February 2, 1990, to return to their home in Quitman County. Two hours later, a passing motorist saw their house burning. Their bodies were found inside. Carl, Bobbie Joe, and Gregory died from gunshot wounds. Charlotte, although shot three times, died of smoke inhalation.
¶ 4. The Parkers' stolen pickup truck was found parked near the residence of Robert Simon's mother-in-law, in nearby Clarksdale, Mississippi. Police spotted two black men fleeing the cab of the truck almost an hour after the house fire was discovered. In the bed of the pickup were several items taken from the Parkers' residence. A shotgun and two revolvers were found near the pickup. The Parkers had been shot with revolvers of the same caliber as the revolvers found near the truck. A witness identified Simon as one of two men who had stolen those two guns from her less than a week earlier. Acting upon a tip provided by Simon's wife, police discovered a pair of wet coveralls and work gloves smelling of smoke locked in a dumpster near the pickup truck. The gloves belonged to Carl Parker.
¶ 5. Simon and Anthony Carr were arrested the next day.2 Simon was wearing boots taken from the Parker residence when he was arrested. Later, more property taken from the Parkers' home, including two wedding rings, was found inside an apartment leased by Simon and his wife in Memphis, Tennessee. After his arrest, Simon was read his Miranda rights and confessed to killing the Parkers to police at the Quitman County jail. He also discussed the Parker murders with inmates of the Quitman County jail who later testified against him.
¶ 6. According to Miss.Code Ann. § 99-39-27(5):
Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by such are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application....
Miss.Code Ann. § 99-39-27(5) (2000). See also Jaco v. State, 574 So.2d 625, 635 (Miss.1990)
; Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990); Neal v. State, 525 So.2d 1279, 1281 (Miss.1987). This Court accepts the well-pleaded allegations in the petition as true. Moore, 556 So.2d at 1061, 1062.
¶ 7. Simon raises claims of error in his Petition and Amended Petition which may be broken down into three categories: allegations of ineffective assistance of counsel; a violation of the disclosure rule announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and a violation of the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. In his pro se petition and supporting memorandum, Simon also alleges error with regard to the effective assistance of his trial counsel, denial of his right to counsel during interrogation, change in trial venue, and right to a fair trial. The State responds to some of these allegations by asserting that they are procedurally barred from examination by waiver or res judicata. Some of those allegations, as well as the remaining allegations which the State does not contend to be procedurally barred, are addressed on their merits below. The State ultimately contends that none of the issues cited for review have merit. We begin by determining whether any of the alleged errors assigned for review are procedurally barred.
¶ 8. Petitions for post-conviction relief provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal. Miss.Code Ann. § 99-39-3(2) (2000). Further, Miss.Code Ann. § 99-39-21 provides:
Miss.Code Ann. § 99-39-21 (Supp.2003). "[A]n alleged error should be reviewed, in spite of any procedural bar, only where the claim is so novel that it has not been previously litigated, or, perhaps, where an appellate court has suddenly reversed itself on an issue previously thought settled." Irving v. State, 498 So.2d 305, 311 (Miss.1986).
The Brady violation claim
¶ 9. The State alleges that examination of the Brady violation claim is procedurally barred as it was capable of being raised on direct appeal, and Simon has made no showing of cause and actual prejudice warranting relief from this waiver. It is uncertain whether Simon had knowledge of officer Thomas's testimony in the Carr trial during the trial of Simon II, thus making this issue capable of review on direct appeal. This Court is merely left to consider Simon's allegation that he was not provided with this statement from the Carr transcript when it is possible that his attorney did indeed have it and used it. Accepting the facts alleged in the petitions as true, the State has failed to meet the burden for imposing a procedural bar here. The merits of the claim are examined below.
The Double Jeopardy claim
¶ 10. The State argues that Simon's double jeopardy claim has been decided against him in Simon II and is now procedurally barred from review by the doctrine of res judicata. Considering the language used in rejecting the arguments not discussed on the merits by the Simon II majority opinion, it is clear this issue was decided against Simon on direct appeal. The requirements for imposing the procedural bar of res judicata have been met. The doctrine of res judicata prohibits any further examination of this issue on its merits. Since this issue concerns a fundamental right, it is examined on the merits below in the alternative.
Petition and Amended Petition: Ineffective Assistance of Counsel claims
¶ 11. The State argues that three of Simon's claims of ineffective assistance of counsel found in the Petition and Amended Petition are procedurally barred: (1) Simon's claim that his trial counsel was ineffective because he failed to offer any corroborating evidence that Simon's confession was coerced as both waived and barred by res judicata; (2) Simon's claim...
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