Walker v. State, 92-DP-00568-SCT

• Decision Date: 12 October 1995
• Docket Number: No. 92-DP-00568-SCT,92-DP-00568-SCT
• Citation: 671 So.2d 581
• Parties: Alan Dale WALKER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 581

671 So.2d 581

Alan Dale WALKER v. STATE of Mississippi.

No. 92-DP-00568-SCT.

Supreme Court of Mississippi, In Banc.

Oct. 12, 1995.

Rehearing Denied April 18, 1996.

Robin E. Midcalf, Gulfport, Carmen G. Castilla, Lowery & Castilla, Jackson, for Appellant.

Michael C. Moore, Attorney General, Jackson, Marvin L. White, Jr., Assistant Attorney General, Jackson, Jeffrey A. Klingfuss, Sp. Ass't Attorney General, Jackson, for Appellee.

Before HAWKINS, C.J., PRATHER and DAN M. LEE, P.JJ., and SMITH, SULLIVAN, PITTMAN, BANKS, JAMES L. ROBERTS, Jr. and McRAE, JJ.

SMITH, Justice, for the Court:

Today we are confronted with the senseless slaying of Konya Rebecca Edwards, a young teenager who fought back against her assailants and at other times cooperated in a vain attempt to avoid being killed, to which the jury responded by sentencing Alan Dale Walker to death.

Walker, appeals to this Court his conviction of capital murder during the commission of sexual battery. Walker was indicted by the Grand Jury of Harrison County, Mississippi, during the March 1991 term for capital murder, rape and kidnapping of Edwards. Walker received a change of venue and was tried in Warren County, where a jury found him guilty as charged and sentenced him to death on the capital murder count. Walker was also convicted of the rape and kidnapping and received additional sentences by the trial judge of thirty and thirty-five years to run consecutively.

Aggrieved, Walker argues twenty-two issues for reversal. However many of the issues were not initially raised in the lower court or brought to the court's attention by appropriate timely objection. This Court has repeatedly held that "[i]f no contemporaneous objection is made, the error, if any, is waived. This rule's applicability is not diminished in a capital case." Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988); Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987); Johnson v. State, 477 So.2d 196 (Miss.1985), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986); In re Hill, 460 So.2d 792 (Miss.1984); Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

This Court, after finding a procedural bar, need not look further. However, the Court alternatively, may review the merits of the underlying claim knowing that any subsequent review will stand on the bar alone. On application for the writ of habeas corpus, federal courts will not review a state court's holding on a federal law claim ... if that holding rests upon a state law ground which is both independent of the merit of the federal claim and adequate to support the state court's judgment. Harris v. Reed, 489 U.S. 255, 260-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989).

The Fifth Circuit Court of Appeals has addressed this issue in Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir.1993), stating:

Consequently, "[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 800, 111 S.Ct. 2590, 2593, 115 L.Ed.2d. 706 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 485-92, 106 S.Ct. 2639, 2643-48, 91 L.Ed.2d 397 (1986)).

Furthermore, where a state court finds that a federal claim is procedurally barred, but goes on to reach the merits of that claim in the alternative, the state court's reliance on the procedural default still constitutes an independent and adequate state ground which bars federal habeas review. The United States Supreme Court in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) stated:

The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.... If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.... An examination of the decision below reveals that is contains no clear or express indication that separate, adequate, and independent state-law grounds were the basis for the court's judgment ...

472 U.S. at 327, 105 S.Ct. at 2638-39.

This Court's most recent pronouncements on this issue are found in Foster v. State, 639 So.2d 1263 (Miss.1994), reh'g denied, (Miss. Aug. 18, 1994), cert. denied, --- U.S. ----, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995), and Chase v. State, 645 So.2d 829 (Miss.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995).

The issues which were not properly raised in the trial court are procedurally barred from consideration by this Court. There are only two or three issues raised by Walker which concern this Court. We have thoroughly considered these as well as all remaining issues and found them to be without merit. This Court finds that Walker received a fair trial and therefore affirms Walker's conviction and sentence of death.

STATEMENT OF THE FACTS

On September 8, 1990, Konya Rebecca Edwards, nineteen years old, returned home after her Saturday afternoon shift at the East China Restaurant in Long Beach, Mississippi. Edwards lived in a duplex she shared with her mother and grandmother. Edwards left the house that night to go out with her aunt, Maggie Thomas, and Maggie's boyfriend. When Edwards did not return home or call, as she customarily did, her family began to worry. At 5:30 p.m., on Sunday, the Long Beach Police Department was contacted. Edwards' wallet, found at the scene of the crime, was returned to her family by a family friend who worked at the docks in Gulfport. Edwards' grandmother, Tillie Edwards, accompanied by her daughter and her daughter's boyfriend, went to the area where the friend had reported finding the wallet and began to search for Edwards. Tillie located Edwards' body and the police were promptly called. Tillie later identified the black dress recovered from Walker's house as the dress Edwards was wearing on the night in question.

The following facts are a brief sketch taken from the testimony and statement of Jason William Riser. Riser, testified that he was with Walker at the Fiesta Club between 7:30 and 8:00 p.m. on September 8, 1990. They were met at the club by Trina Perry, Walker's girlfriend. Sometime between 9:00 and 10:00 p.m., Riser and Walker met Konya Edwards for the first time. Edwards was At the lake, Walker "got out of the truck and said we was gonna rape this girl." Walker returned to the truck and began "messing" with Edwards, grabbing her legs and breasts, fondling Edwards. Edwards woke up and became loud in her resistance to Walker's fondling. Walker hit her in the face several times. Walker "asked her if she wanted to live or die." Walker grabbed Edwards by the arm and pulled her out of the truck. He placed his hand over her mouth several times to keep her quiet. Walker told Edwards to cooperate and everything would be all right. The three walked toward the sandy path which encircled the lake. Whenever Edwards resisted physically or vocally, Walker would hit her and repeatedly say "live or die." Walker instructed Edwards to take off all her clothes, which she did hesitantly. Walker grabbed her by the arm again and walked her by the side of the lake in the woods. Walker struck her again in the face and told her to lie down on the ground. Walker knelt beside Edwards and attempted to rape her. Riser could not tell if Walker was successful, but thought that Walker was unable to have intercourse. Walker then stood back up telling Riser he "couldn't do anything with her right now," and told Riser to take his turn. Riser raped Edwards by vaginal intercourse. Walker approached Edwards and struck her in the face with his fist while she was still lying down. Walker told Edwards to perform oral sex on Riser while Walker had anal sex with her. Edwards said she couldn't do that, but Walker pushed her head down toward him and forced her to perform oral sex. She then bit Walker's penis. He hit her again in the face with his fist and shook her, telling her she had better cooperate so she wouldn't get hurt. In his statement, Riser maintained that both he and Walker had anal intercourse with Edwards.

                upset because someone had stolen her purse.  However, Riser observed Edwards still had her wallet and had placed it in the top of her dress.  Riser identified the black dress recovered from Walker's house as being the dress worn by Edwards on the night of September 8, 1990.  Later that night, Riser, Walker, Perry and Edwards left the Fiesta.  Perry drove with Walker in her vehicle and Riser and Edwards followed in Riser's truck.  Riser had agreed to take Edwards home.  On Turner Road, Walker told Perry to stop her car so he could show Riser and Edwards a place they could "be together."   Edwards had passed out.  Riser also stated that Edwards was intoxicated.  Walker suggested they drive to Crystal Lake.  Walker told Perry to wait down the road for them and he would meet her later
                

Walker nudged Edwards toward Riser, who pushed her down and she began to perform oral sex. When Walker attempted anal sex, Edwards told him she couldn't and turned around and slapped him. The two struggled and Walker began choking Edwards. Riser stood watching. Walker fell to the ground, still choking Edwards, then suddenly came to his feet, letting Edwards fall, coughing and "hanging onto her throat." Walker told Riser he would have to kill Edwards.

Walker asked her if she wanted to live or die; Edwards said she wanted to live. All three walked into the lake. They then returned to the earlier location,...