Walker v. State

Decision Date16 October 2003
Docket NumberNo. 97-DR-00376-SCT.,97-DR-00376-SCT.
Citation863 So.2d 1
PartiesAlan Dale WALKER v. STATE of Mississippi.
CourtMississippi Supreme Court

Robert M. Ryan, Jackson, attorneys for appellant.

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

EN BANC.

SMITH, Presiding Justice, for the Court.

¶ 1. Alan Dale Walker was indicted in March of 1991 in the Circuit Court of the First Judicial District of Harrison County for the crimes of capital murder of Konya Rebecca Edwards during the commission of a sexual battery, rape and kidnaping. The trial took place in Warren County after a change of venue. A jury was empaneled on August 6, 1991, and Walker was tried found and guilty on all three counts on August 10, 1991. After the jury found Walker guilty, a sentencing hearing was held on the capital murder conviction where the jury heard evidence in aggravation and mitigation of sentence. The jury retired to consider whether Walker would be sentenced to death or life imprisonment. After due consideration, on August 12, 1991, the jury returned a sentence of death. The trial court set an execution date for September 15, 1991. Walker received additional consecutive sentences of thirty-five years for the rape conviction and thirty years for the kidnaping charge.

¶ 2. Walker then pursued his automatic appeal to this Court raising twenty-two claims of error. Walker v. State, 671 So.2d 581 (Miss.1995). On October 12, 1995, this Court affirmed the conviction of capital murder and sentence of death. The convictions for rape and kidnaping were also affirmed. A petition for rehearing was filed on later denied on April 18, 1996. Id.

¶ 3. Walker next filed a petition for writ of certiorari with the United States Supreme Court. Walker's execution date was stayed pending resolution of the petition for writ of certiorari. On December 12, 1996, the United States Supreme Court denied certiorari in this case, Walker v. Mississippi, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996). No petition for rehearing was filed.

¶ 4. The State moved this Court to set a new execution date for Walker. On January 9, 1997, this Court set January 29, 1997, as the date for the execution of the death sentence. On January 14, 1997, Walker filed a pro se motion for appointment of counsel and stay of execution under the precedent of McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), with the United States District Court for the Southern District of Mississippi. The State opposed this motion. On January 24, 1997, the district court entered an order appointing George T. Holmes and James W. Craig to act as Walker's counsel to pursue a federal writ of habeas corpus. On February 11, 1997, Judge Tom S. Lee reassigned the case to Judge Charles W. Pickering, Sr.

¶ 5. On February 5, 1997, Walker's counsel, Robin Midcalf and Carmen Castilla, moved this Court to allow them to withdraw. On February 20, 1997, this Court denied the motion to withdraw based on the failure to comply with M.R.A.P. 46(c).

¶ 6. On March 19, 1997, Holmes and Craig filed a motion in the United States District Court to hold the action in federal court in abeyance until the disposition of the state post conviction petition. The State opposed this motion. The district court, on March 27, 1997, entered an order holding the action in abeyance until ten (10) days after the disposition of the state court petition.

¶ 7. Walker filed a Petition for Post Conviction Collateral Relief in this Court on March 17, 1997. The original "pro se" petition was obviously prepared by an attorney, but unsigned by an attorney. The State responded to that application on July 18, 1997. On August 6, 1998, the law firm, Jenner and Block, filed a motion for appointment of counsel and another "pro se" application for post conviction relief. On March 11, 1999, this Court granted the motion for appointment of counsel and remanded the case to the Circuit Court of Harrison County for that purpose. Walker v. State, 733 So.2d 836 (Miss.1999). On November 15, 2000, the Court assigned the case to the Mississippi Office of Capital Post Conviction Counsel (MOCPCC). Finally, after delay by the MOCPCC, the present supplement to the application was filed on March 24, 2003. Within the March 24, 2003 application, the MOCPCC requested additional time to supplement the application. The State filed a response to the March 24, 2003, supplement to the March 14, 1997 application.

¶ 8. Walker's petition raises the following issues:

I. WALKER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT AND SENTENCING PHASES OF THE TRIAL WITHIN THE MEANING OF STRICKLAND V. WASHINGTON, AND, CORRESPONDING PORTIONS OF THE MISSISSIPPI CONSTITUTION.

A. MOTION FOR CONTINUANCE
B. COUNSEL'S FAILURE TO OFFER LESSER-INCLUDED OFFENSE INSTRUCTIONS
C. ADMISSION OF THE PHOTOGRAPH OF THE VICTIM TAKEN PRIOR TO HER DEATH
D. FAILURE TO OBJECT TO PORTIONS OF DR. McGARRY'S TESTIMONY
E. COUNSEL'S FAILURE TO OBJECT TO THE GRANTING OF INSTRUCTION S-9 ON AIDING AND ABETTING
F. SUBMISSION OF AGGRAVATING CIRCUMSTANCES THAT

CAPITAL OFFENSE WAS COMMITTED IN THE COMMISSION OF THE CRIME OF SEXUAL BATTERY.

G. PROSECUTORIAL MISCONDUCT
(1) COMMENT ON WALKER'S FAILURE TO TESTIFY
(2) IMPROPER VOUCHING OF WITNESS AND PERSONAL OPINIONS
(3) MISSTATEMENTS OF FACT
(4) COMMENTS ON APPELATE REVIEW
(5) CUMULATIVE EFFECT OF INSTANCES OF PROSECUTORIAL MISCONDUCT

H. OUTBURSTS FROM STATE WITNESSES AND VICTIM'S FAMILY MEMBERS

I. FAILURE TO ARGUE THE IMPOSITION OF A DISPROPORTIONATE SENTENCE

II. DID THE TRIAL COURT ERR IN CHARGING THE TRIAL JURY WITH STATE REQUESTED INSTRUCTION S-9 AS THE SAME IS AN INCORRECT STATEMENT OF THE LAW OF THE STATE AND AS A RESULT WALKER WAS UNFAIRLY PREJUDICED AND DENIED A FUNDAMENTAL FAIR TRIAL.

III. DID THE FAILURE OF THE TRIAL COURT TO GRANT THE CONTINUANCE VIOLATE WALKER'S DUE PROCESS RIGHTS AND THE PRINCIPLES OF FUNDAMENTAL FAIRNESS AS GUARANTEED BY THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

IV. WERE WALKER'S EIGHTH AMENDMENT RIGHTS VIOLATED BY THE IMPOSITION OF A SENTENCE OF DEATH BASED ON JURY INSTRUCTIONS WHICH WERE CONSTITUTIONALLY DEFECTIVE IN LIGHT OF TISON V. ARIZONA.

V. DID THE TRIAL COURT ERR IN DENYING WALKER'S JURY CHALLENGES FOR CAUSE AND AS A RESULT DENY A FUNDAMENTALLY FAIR TRIAL UNDER THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

VI. WERE WALKER'S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE MISSISSIPPI CONSTITUTION BY THE PROSECUTION'S RACIALLY BIASED USE OF PEREMPTORY JUROR CHALLENGES.

VII. DID THE TRIAL COURT ERR IN STRIKING JUROR MELINDA ZAPPIE FOR CAUSE IN VIOLATION OF WALKER'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND THE CORRESPONDING GUARANTEES UNDER THE MISSISSIPPI CONSTITUTION.

VIII. WAS WALKER DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL COUNSEL'S FAILURE TO CONDUCT A CONSTITUTIONALLY ADEQUATE VOIR DIRE EXAMINATION OF THE JURY VENIRE WITHIN THE MEANING OF STRICKLAND V. WASHINGTON AND IN VIOLATION OF HIS SIXTH AND EIGHTH AMENDMENT RIGHTS AS GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND THE RELEVANT

PORTIONS OF THE MISSISSIPPI CONSTITUTION.

IX. WAS THE SENTENCE RENDERED AGAINST WALKER DISPROPORTIONATE TO THAT OF HIS CO DEFENDANT, JASON RISER, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND THE CORRESPONDING PORTIONS OF THE MISSISSIPPI CONSTITUTION.

X. WAS WALKER DENIED HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.

FACTS

¶ 9. On the night of September 8, 1990, Konya Edwards was given a ride home from the Fiesta Club in Biloxi by Alan Dale Walker, Walker's girlfriend Trina Perry, and Jason Risers. Edwards apparently did not know any of the other three before that night. Perry drove with Walker in her vehicle, followed by Riser and Edwards in Riser's truck. Eventually, the two vehicles stopped, with Walker leaving Perry after arranging to meet her later and getting in the truck with Riser and Edwards. Walker, Riser and Edwards then drove to Crystal Lake. Walker and Riser then sexually assaulted Edwards, and Walker eventually strangled her and drowned her. Walker and Riser then obtained gasoline and burned Edwards's body.

¶ 10. Walker was tried for capital murder, kidnaping and rape and was convicted on all counts. He received a death sentence for the capital murder conviction. He received a sentence of thirty-years on the kidnaping and thirty five years on the rape charge, to run consecutively. Riser, originally charged with the same counts as Walker, pled guilty to murder, received a life sentence and provided the primary testimony against Walker. This Court affirmed Walker's convictions and sentences.

¶ 11. Walker applies for leave to seek post-conviction relief from errors he alleges occurred before and during his trial wherein the sentence of death was imposed on him. Walker asserts his claims pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-31-1 to -29 (Rev.2000 & Supp.2003). This Act, by its express terms, was created to: revise, streamline, and clarify the rules and statutes pertaining to post conviction collateral relief law and procedures, to resolve any conflicts therein and to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences.

Id. § 99-39-3(1).

¶ 12. The exclusivity intended by the Legislature was furthered by the inclusion of language abolishing former modes of post conviction remedy, including error coram nobis, statutory habeas corpus, post conviction habeas corpus, statutory error coram nobis, and all other former types of common law writs.

¶ 13....

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