State v. Tokman

• Decision Date: 25 April 1990
• Docket Number: No. 03-DP-201,03-DP-201
• Citation: 564 So.2d 1339
• Parties: STATE of Mississippi v. George David TOKMAN.
• Court: Mississippi Supreme Court

Page 1339

564 So.2d 1339

STATE of Mississippi v. George David TOKMAN.

No. 03-DP-201.

Supreme Court of Mississippi.

April 25, 1990.

Rehearing Denied Aug. 22, 1990.

Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellant.

Joshua J. Wiener, Brunini Grantham Grower & Hewes, Jackson, James C. McKay, Mitchell F. Dolin, Gaines Cleveland, Kenneth J. Diamond, Covington & Burling, Washington, D.C., for appellee.

En Banc.

BLASS, Justice, for the Court:

I.

George David Tokman was convicted of capital murder and sentenced to death in September 1981. The conviction and sentence were affirmed by this Court. Tokman v. State, 435 So.2d 664 (Miss.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984). Following denial of certiorari by the U.S. Supreme Court, Tokman filed, with leave of this Court, a motion for post-conviction relief on the issue of ineffective assistance of counsel. Tokman v. State, 475 So.2d 457 (Miss.1985); 482 So.2d 241 (Miss.1986). An evidentiary hearing was held in the Circuit Court of Hinds County, Judge William Coleman presiding. Relief was denied as to the guilt phase of the trial but granted as to the sentence phase. The death sentence was vacated. The State appeals, contending that the trial court erred in finding counsel's conduct fell below reasonable standards and in finding that this conduct prejudiced Tokman. Tokman timely filed a motion to alter or amend the order as to the guilt phase of the trial. Miss.R.Civ.P. 59(e). This motion was denied on July 7, 1988. Tokman appeals this denial, raising four issues, only one of which is addressed here.

We find no error in these proceedings, and the circuit court's order denying post conviction relief as to the guilt phase is affirmed. The order vacating the death sentence is also affirmed, and we remand for a new sentencing hearing.

II.

A.

The facts of the crime itself are briefly summarized here, but are related in greater detail in Tokman v. State, 435 So.2d at 666.

George David Tokman, Michael Leatherwood, and Jerry Fuson travelled from Fort Polk, Louisiana, to Jackson, on August 22, 1980, to retrieve Fuson's automobile. They ran out of money, and decided to rob a taxicab driver. Before a cab arrived they decided to kill the driver so that he could not identify them. The first taxi called was driven by a young, large man. He appeared too big and strong, so the trio rejected his taxi and called another. This one was driven by an elderly man, Albert Taylor, the victim. They directed Taylor to a Jackson address, but stopped him before arrival. A rope was placed around the driver's neck and he was pulled into the back seat. Tokman then drove the cab to the rear of Meadowbrook Cinema. Fuson left to get his car. Tokman and Leatherwood remained in the cab with Taylor. Taylor was repeatedly struck in the head and eventually killed. The record shows that Tokman struck him in the head with a knife, but the autopsy showed no stab wounds. The two men left the cab but returned to retrieve things they had forgotten. At this time Tokman struck Taylor again. At some point Tokman's hand was cut. Taylor was robbed of approximately $11.50, a pistol, his wallet, two money bags, and a set of keys. His body was found shortly after midnight on August 24, 1980.

B.

Counsel, Russell Moore, III, now deceased, was appointed by the court to represent Tokman. He met with Tokman several months before trial and received background information. Moore described Tokman as cooperative and responsive to questions. Counsel sought, unsuccessfully, a plea bargain agreement with the District Attorney's office. He learned that Jerry Fuson was to testify against Tokman, but did not interview Fuson or any other state witnesses before trial. Tokman's mother was contacted just as the trial was starting but declined to assist in his defense, saying that she was not well and that she was going through a difficult divorce. She was the only person, other than David Tokman, with whom counsel discussed Tokman's background. No other family members or community acquaintances were approached.

Counsel planned to have Tokman testify during the sentencing phase, but finally did not put him on when Tokman told counsel that he (Tokman) would ask for death. No search for mitigating evidence was conducted, other than the talk with the mother. Counsel stated that failure to investigate and to conduct any independent psychiatric examination of Tokman was due to a lack of funds, not strategic considerations. ¹

At the trial, defense counsel considered the testimony of the victim's twin brother as inflammatory, but did not object because he felt an objection would be unsuccessful. Other objections were not made for the same reason.

The total time spent personally, by appointed counsel, in preparation for trial was six hours, fifty minutes, three hours of which involved drafting pre-trial motions.

Approximately one week before trial, Robert H. Taylor, Jr. was brought in by appointed counsel to aid the defense. He stated that most of the factual investigation had been completed prior to his entry into the case. Taylor described Tokman as very mild mannered and cooperative, with a "death wish".

One day before the sentencing phase of Tokman's trial, Taylor met with Tokman and discussed his testimony. Initially Tokman agreed to ask for mercy, but on the morning of trial, he told counsel he would ask for the death penalty, preferring death to life imprisonment. The decision not to put Tokman on the stand was made by Taylor and Moore in light of the above, and because they felt Tokman would be a difficult witness to control. Taylor felt that "no person of David's age is, in the ultimate sense, competent to make a decision of the magnitude that David insisted upon making."

At the sentencing phase, Taylor suggested calling a clergyman as a witness, but Moore did not agree. Taylor stated that the failure to present mitigating evidence was not based on strategic considerations, with the exception of defendant's testimony. Tokman did not provide any useful information which might be converted into, or lead to mitigating evidence, despite repeated questioning.

Defense counsel was unaware that an order had been entered providing that Tokman be subjected to a battery of psychological tests. The tests were never given, nor was any protest made about it. The defense strategy, as described by Taylor, was to persist in the plea of not guilty and hope that the state would make some mistake.

III.

In reviewing a trial judge's decision our standard of review is clear. This "heavily fact-laden inquiry" should not be set aside absent a determination that the trial judge's finding was clearly erroneous. Merritt v. State, 517 So.2d 517, 520 (Miss.1987); Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 1510, 84 L.Ed.2d 518, 527 (1985).

The petitioner, seeking to overturn his conviction or sentence on grounds of ineffective assistance of counsel, must demonstrate factual proof by a preponderance of the evidence of an identifiable lapse by counsel and of some actual adverse impact on the fairness of the trial resulting from that lapse. Leatherwood v. State, 539 So.2d 1378, 1381 (Miss.1989); Miss.Code Ann., Sec. 99-39-23(7) (Supp.1988).

The trial judge must review the claim of ineffective assistance of counsel in light of the two-prong test, stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by this Court in Stringer v. State, 454 So.2d 468 (Miss.1984).

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 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. (emphasis added)

466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; 454 So.2d at 477.

IV.

DID THE TRIAL COURT ERR IN FINDING THAT COUNSEL'S CONDUCT

FELL BELOW REASONABLE STANDARDS AND IN FINDING

THAT TOKMAN WAS IN FACT PREJUDICED BY

THE LAPSE?

A.

In the lower court's "Opinion and Order", Judge Coleman notes that no testimony was presented in mitigation and extenuation during the penalty phase of the trial. He also notes that trial counsel had planned to rely entirely on Tokman's testimony in extenuation, then elected not to place Tokman on the stand, when he indicated that he would ask for the death penalty. While acknowledging that there was a serious conflict in the evidence of Tokman's psychological and psychiatric condition, Judge Coleman concludes that with timely investigation, mitigation evidence could have been obtained and offered during the penalty phase which would have presented Tokman to the jury as a person other than the cold-blooded, callous murderer portrayed by the State.

The failure by Tokman's counsel to conduct any investigation at all can be characterized as an "identifiable lapse". Cabello v. State, 524 So.2d 313 (Miss.1988); Daniels v. Maggio, 669 F.2d 1075 (5th Cir.1982). At a minimum, counsel has a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. Ferguson v. State, 507 So.2d 94, 96 (Miss.1987). It is critical that mitigating evidence be presented at capital sentencing proceedings. Leatherwood v. State, 473 So.2d 964, 970 (Miss.1985).

In...