Smith v. State, 53564

• Decision Date: 01 June 1983
• Docket Number: No. 53564,53564
• Citation: 434 So.2d 212
• Parties: Willie Albert SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 212

434 So.2d 212

Willie Albert SMITH v. STATE of Mississippi.

No. 53564.

Supreme Court of Mississippi.

June 1, 1983.

Rehearing Denied July 27, 1983.

Minor F. Buchanan, Jackson, John E. Gregg, Raymond, Robert J. Brantley, Jr., Jackson, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Jackson, for appellee.

En Banc.

BROOM, Presiding Justice, for the Court:

Post-conviction relief ¹ is sought by the petitioner in the instant case, Willie Albert Smith. Smith was convicted of the March 15th, 1981, capital murder of a convenience store operator, Shirley Roberts. On appeal, we affirmed the petitioner's conviction and death sentence on August 11, 1982. Smith v. State, 419 So.2d 563 (Miss.1982). After we denied Smith's petition for rehearing, the United States Supreme Court denied Smith's petition for writ of certiorari, --- U.S. ---, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983).

Smith now seeks our permission for leave to file a petition for post-conviction relief in the lower court, assigning 19 individual grounds which he maintains entitle him to post-conviction relief. At the outset it should be noted that this Court has repeatedly and consistently held that post-conviction relief in Mississippi is not granted upon facts and issues which could or should have been litigated at trial and on appeal. ² Callahan v. State, 426 So.2d 801 (Miss.1983); Bell v. Watkins, 381 So.2d 118 (Miss.1980); Auman v. State, 285 So.2d 146 (Miss.1973); Irving v. State, 194 So.2d 239 (Miss.1967); Gordon v. State, 160 So.2d 73 (Miss.1964); Kennard v. State, 246 Miss. 209, 148 So.2d 660 (1963); Rogers v. State, 240 Miss. 610, 128 So.2d 547 (1961); Goldsby v. State, 226 Miss. 1, 78 So.2d 762 (1955); Wetzel v. State, 225 Miss. 450, 76 So.2d 188 (1955).

While each of petitioner Smith's claims are individually noted and addressed below, we note at the outset that the first three of these asserted grounds which he claims entitle him to post-conviction relief are grouped under the general heading of "constitutional claims relating to sentence that depend upon cases currently pending." It is true that Mississippi post-conviction relief procedures may be employed to either obtain relief under a retroactively applied court decision, or to test the retroactivity of such a decision. Culberson v. State, 412 So.2d 1184 (Miss.1982); Spears v. State, 278 So.2d 443 (Miss.1973); Taylor v. State, 285 So.2d 172 (Miss.1973). See also Woodruff v. State, 187 So.2d 883 (Miss.1966), cert. den. 386 U.S. 919, 17 L.Ed.2d 790, 87 S.Ct. 881 (1977). Nonetheless, the petitioner's plea that this Court stay its hand in anticipation of what the United States Supreme Court may (or may not ) decide is not well taken. If we were to delay our decision on a case, or delay the execution of a sentence, solely for the reason that the United States Supreme Court might decide a case involving similar points, the wheels of judicial administration would of necessity come to a grinding halt. Our function as the highest court of the state of Mississippi is to interpret, apply, and shape the law as we see it. Indulgence in prognostications as to the future actions of either the United States Supreme Court or any other court is not our function. ³

The petitioner's first such assigned ground for relief is the state's interjection of evidence relating to Smith's purported rape of the victim as an aggravating circumstance. At trial, the defendant objected on three separate occasions to the state's interjection of such evidence, but failed to raise the issue on appeal. The petitioner apparently deemed himself not to have been prejudiced by the interjection of such matters, and abandoned this issue. Thus we hold that he has chosen to accept the trial court's original determination of the issue and is barred from relitigating this issue in post-conviction relief proceedings. Edwards v. Thigpen, supra; Wheat v. Thigpen, 431 So.2d 486 (Miss.1983). See Auman v. State, supra.

Second asserted ground for relief is the jurors' instruction allowing them to consider "committed for pecuniary gain" as an aggravating circumstance in addition to the underlying felony of robbery. This issue was raised at trial, assigned as error and argued on appeal, and thus has been fully and finally adjudicated, barring petitioner Smith's attempt to relitigate it in post-conviction proceedings. Wheat v. Thigpen, supra; Edwards v. Thigpen, supra; Callahan v. State, supra.

Petitioner's third assigned ground for post-conviction relief relates to alleged improper prosecutorial closing argument to the effect that the rendition of a life sentence for Smith would in actuality result in his being released on parole in ten years. These comments (as to parole and punishment) by the prosecutor were not objected to by defense counsel, ⁴ and were not asserted on appeal. If, within the context of the trial, petitioner felt such comments to have been improper, and felt himself to be prejudiced thereby, the question of the propriety of such argument could and should have been litigated at trial and subsequently on direct appeal. Having failed to do so, he is barred from raising this issue for the first time in post-conviction relief proceedings. Wheat v. Thigpen, supra; Edwards v. Thigpen, supra. See particularly, Holloway v. State, 261 So.2d 799, 800 (Miss.1972).

Fourth alleged ground for relief relates to his claim that the in-court identification of Smith by witnesses Thomas and Wells was "impermissibly tainted." This issue was raised in petitioner Smith's supplemental assignment of error and was considered by this Court on direct appeal. Smith v. State, supra, at 574. Having been fully adjudicated against petitioner Smith, this issue is barred from consideration in post-conviction relief proceedings. ⁵ Holloway v. State, supra.

The next asserted ground for relief urged by petitioner Smith involves the admissibility of evidence seized from Smith's house as the result of a search which was conducted without a search warrant. This issue was raised at trial, and on direct appeal. We exhaustively analyzed and reviewed the circumstances surrounding this search and seizure, concluding that the search was permissible under the emergency exception to the requirement of a search warrant. Therefore, this issue having been completely and thoroughly litigated and adjudicated against petitioner Smith, he is barred from attempting to relitigate it in post-conviction relief efforts.

His next ground for relief is the assertion that the trial court erred in failing to restrain the district attorney's interference with his attempt to impeach a witness on cross-examination. This issue was not raised on direct appeal and is barred.

Petitioner's next asserted ground for relief is the trial court's rejection of the defense's challenge for cause of a potential juror. This issue was not assigned as error on direct appeal. Petitioner Smith, having therefore accepted the trial court's ruling on the matter, is now barred from attempting to again raise this issue in post-conviction proceedings.

Petitioner Smith next urges that the trial court's denial of his motion for a change of venue was error and constitutes grounds for post-conviction relief. Once again, we note that he did not raise this issue on direct appeal; he is barred from raising it now.

He urges that the trial court erroneously failed to instruct the jury that the age of the petitioner at the time of the commission of the crime was a mitigating circumstance to be considered in their consideration of the sentence to be imposed upon Smith. This issue was not raised at trial. ⁶ Nevertheless, as a part of our statutorily imposed duty to review the entire trial, we specifically found on direct appeal that the jury had been properly instructed with respect to, inter alia, the petitioner's age. Having been adjudicated on direct appeal, the issue is barred from post-conviction proceedings.

Smith next claims that there is an absence of a specific finding by the jury of the fact that Smith intended to take a life and therefore he is entitled to a new trial. Enmund v. Florida, --- U.S. ----, ----, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140, 1152 (1982). This issue was neither raised at trial nor assigned as error on appeal. Likewise, there is no showing of any lack of "constitutional tools" by the defendant which could have been used to construct this defense. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Although not necessary to our holding today, we note in passing that the evidence clearly warranted such a finding by the jury.

Smith next alleges that there was an absence of notice with regard to the aggravating circumstances to be used by the state in seeking the imposition of the death penalty. This issue was not raised at trial or on appeal, and thus is now barred.

He claims that the failure to provide a presentence report constitutes grounds for post-conviction relief. Again, this issue was not raised at trial nor on appeal. Once again, if petitioner felt himself to be prejudiced thereby, this issue could and should have been litigated at trial. Petitioner is therefore barred from seeking post-conviction relief on this ground. See In re Jordan, 390 So.2d 584 (Miss.1980).

Smith contends that the removal of jurors who had scruples against capital punishment constituted a violation of the rule set forth by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). By failing to raise this issue on direct appeal, Smith accepted the trial court's determination of this matter and is barred from attempting to raise it now in post-conviction relief proceedings.

Next, Smith contends that the trial judge's report on the proceedings which was forwarded to the Mississippi Supreme Court as part of the appellate process, was inadequate. This issue was not...