Turner v. State

• Decision Date: 04 January 2007
• Docket Number: No. 1999-DR-01828-SCT.,1999-DR-01828-SCT.
• Citation: 953 So.2d 1063
• Parties: Edwin Hart TURNER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

953 So.2d 1063

Edwin Hart TURNER v. STATE of Mississippi.

No. 1999-DR-01828-SCT.

Supreme Court of Mississippi.

January 4, 2007.

Rehearing Denied April 26, 2007.

James W. Craig, Jane E. Tucker, attorneys for appellant.

Office of the Attorney General, by Marvin L. White, attorney for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. Edwin Hart Turner (Turner) shot and killed Eddie Brooks and Everett Curry during robberies of two convenience stores in Carroll County. A jury first found him guilty of two counts of capital murder and subsequently found that Turner should be sentenced to death for both murders. Turner's appeal from those convictions and sentences was affirmed by this Court, and rehearing was denied. Turner v. State, 732 So.2d 937 (Miss.1999). The United States Supreme Court denied certiorari. Turner v. Mississippi, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999).

¶ 2. Both through counsel and pro se, Turner now asks this Court to grant him post-conviction relief pursuant to Miss. Code Ann. Sections 99-39-1, et seq. He raises numerous issues, primarily related to effectiveness of his attorneys at trial and on appeal. After a thorough review of the claims raised in the petitions, the Court finds that Turner failed to establish that his attorneys were ineffective and that the other claims raised in the petitions lack merit. Accordingly, the petitions are denied.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3. Turner's accomplice, Paul Murrell Stewart (Stewart), confessed his involvement in the robberies and murders. Stewart pled guilty to two counts of capital murder and received consecutive life sentences without parole. As part of his plea agreement, he agreed to testify. At trial, Stewart testified that he and Turner spent the night of December 12 and the early morning hours of December 13, 1997, driving around Carroll and Leflore Counties drinking beer and smoking marijuana. They decided to rob a convenience store. Turner was armed with a 6 millimeter rifle, and Stewart was armed with a .243 rifle. They drove to Mims One Stop on U.S. Highway 82 between Carrollton and Greenwood. After surveying the scene, they decided that the store was too crowded so they left and drove west to another convenience store on Highway 82. The second store, Mims Turkey Village Truck Stop, was occupied only by one clerk, Eddie Brooks. As Turner and Stewart entered the store, Turner ordered Brooks to get down on the floor. Before Brooks could comply, Turner shot him in the chest with the 6 millimeter rifle. However, neither Turner nor Stewart could open the cash register. Both fired their rifles into the cash register, but it still wouldn't open. Meantime, Brooks was still alive, lying wounded on the floor. Before they fled the scene, Turner placed the barrel of his rifle to Brooks's face and pulled the trigger. The second shot proved to be fatal.

¶ 4. After failing to obtain money from the cash register, Turner and Stewart decided to return to Mims One Stop. They parked behind the store and headed toward the door. Stewart went into the store and ordered the cashier to open the cash register. Turner encountered Everett Curry pumping gas in front of the store. While Stewart was inside robbing the store, Turner ordered Curry to the ground and took cash from Curry's wallet. As Curry laid on the ground pleading for his life, Turner unmercifully shot him in the head. Meanwhile, Stewart took approximately $400 from the cash register. The two fled the scene and returned to Turner's house. Curry was abandoned to die.

¶ 5. Based on their investigation of the robberies and killings, law enforcement officers suspected Turner in the murders. One witness had reported that one of the perpetrators had a white towel wrapped around his face. Turner was known to wrap a towel around his face to conceal his disfigurement from a botched suicide attempt. Turner was also a suspect in a motor vehicle violation and for fleeing police in Leflore County the night of the shootings. A warrant had been issued for his arrest on those charges.

¶ 6. Therefore, officers sought to question Turner. Turner allowed them into the house where two rifles were observed. In a car outside the house, officers found two items—a white plastic mask like one reported to be used in one of the robberies and a rifle shell. After obtaining a warrant, the officers seized a 6 millimeter rifle and a .243 rifle, along with several boxes of ammunition. The State's firearms expert later testified that the shell casings found at the scene of Brooks's murder came from the two rifles found in Turner's home. Additionally, Turner's fingerprints were found on the 6 millimeter rifle. Finally, the cashier at Mims One Stop identified Turner.

¶ 7. Turner was indicted for two counts of capital murder. The trial court granted the defense's motion for a transfer of venue. The case was tried in Forrest County. Turner was convicted of both counts. After hearing evidence of mitigation, the jury found that Turner had actually killed Brooks and Curry, that he had attempted to kill both victims, that he had intended that the killings take place, and that in both instances, he had contemplated that lethal force would be employed. Finally, the jury found that both killings were committed for pecuniary gain during the armed robberies. On both counts, the jury found that the mitigating factors did not outweigh the aggravating factors and that Turner should be sentenced to death.

ANALYSIS

¶ 8. In his petition for post-conviction relief, Turner raises ten issues. All but two of those claims are allegations of ineffective assistance of counsel. The issues raised in the petition are:

I. Venue transfer from Carroll County.

¶ 9. Turner retained two renowned attorneys, John Collette of Jackson and James K. Dukes of Hattiesburg. Collette continued to represent Turner in the direct appeal. Collette and Dukes enjoy a statewide reputation of respect and competency, and both are well seasoned trial attorneys with years of experience in representing criminal defendants.

¶ 10. The standard for determining if a criminal defendant received constitutionally effective counsel is well established. "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 defendant must demonstrate that his attorney's actions were 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 v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.

Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances the challenged action `might be considered sound trial strategy.'

Stringer, 454 So.2d at 477, citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Defense counsel is presumed competent. Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985)

Then, to determine the second prong of prejudice to the defense, the standard 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.

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There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss. 1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss. 1991).

Davis v. State, 743 So.2d 326, 334 (Miss. 1999), citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).

¶ 11. Turner first argues that his attorneys were ineffective in asking that venue be transferred from Carroll County. Upon the advice of counsel, Turner knowingly waived his right to be tried in Carroll County. In retrospect, Turner now maintains that Carroll County residents and potential jurors likely would have known about his troubled family history and his psychiatric treatments. His unpersuasive argument is that Carroll County jurors might have been more lenient than the jurors of Forrest County.

¶ 12. The only case cited by Turner is State v. Caldwell, 492 So.2d 575 (Miss. 1986). In Caldwell, the defendant's death penalty trial was transferred to another county at the defendant's request. He was convicted and sentenced to death. Ultimately, the United States Supreme Court reversed the death sentence and remanded for a new sentencing hearing. Upon remand, Caldwell requested that the hearing be held in the original county. That request was denied by the trial judge. This Court found that Caldwell had the...