Wells v. State

• Citation: 328 So.3d 124
• Decision Date: 25 February 2020
• Docket Number: NO. 2018-CA-00778-COA,2018-CA-00778-COA
• Parties: Darwin Marquel WELLS, Jr. a/k/a Darwin Marquel Wells, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

328 So.3d 124

Darwin Marquel WELLS, Jr. a/k/a Darwin Marquel Wells, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CA-00778-COA

Court of Appeals of Mississippi.

February 25, 2020

Rehearing Denied August 3, 2021

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: STACY L. FERRARO, Flora

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. In 2009, Darwin Wells was convicted of deliberate design murder and sentenced to life imprisonment. By statute, he is ineligible for parole. Miss. Code Ann. § 47-7-3(1)(f) (Supp. 2019). Following the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),¹ Wells filed a motion for post-conviction relief in which he sought to be resentenced to a term of life imprisonment with eligibility for parole. Following an evidentiary hearing, the circuit court ruled that Wells was not entitled to relief under Miller . We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. This Court summarized the basic facts of Wells's crime when we affirmed his conviction and sentence on direct appeal:

On October 23, 2008, Michael and Linda Porter began traveling from Forrest County to Jackson County to watch Linda's grandson play in a football game. Michael and Linda traveled down Highway 49, took Interstate 10, and ended up on Highway 63. While traveling down Highway 63, Michael and Linda decided to stop at a Conoco station and ask for directions to the football stadium. Michael pulled into the Conoco station, got out of the vehicle, and began to walk toward the service station. Linda ... noticed three young African American men standing in front of her vehicle.... [O]ne of the men [(Wells)] had a white towel draped over his head.... [A]s Michael was returning to the vehicle, two of the men attacked him.... [Wells] was not involved in the struggle at that time.... Michael finally broke free of the men, entered his car, and shut the door. Then, Linda ... saw [Wells] walking toward the car. Linda stated that she saw [Wells] pull out a gun and shoot Michael.... [B]ecause Michael had the car in gear, the car shot ... forward down the road after he was shot. Linda ... attempted to manage the car, eventually running the vehicle into a ditch. She then ran to a house and sought help. Ultimately, Michael died from his injuries.

Wells v. State , 73 So. 3d 1203, 1204-05 (¶2) (Miss. Ct. App. 2011) (footnote omitted). Wells was indicted for capital murder. Id. at 1205 (¶3). Following a jury trial, he was convicted of deliberate design murder and sentenced to life imprisonment. Id. at (¶4) ; Miss. Code Ann. §§ 97-3-19(1)(a) & -21 (Rev. 2006). By law, he is ineligible for parole. Miss. Code Ann. § 47-7-3(1)(f).

¶3. In 2013, Wells filed an application in the Mississippi Supreme Court for leave to file a motion for post-conviction relief under Miller, supra . The Supreme Court granted Wells leave to proceed in the circuit court, and Wells then filed a motion for post-conviction relief in the circuit court. Ultimately, following an evidentiary hearing, the circuit court ruled that Wells was not entitled to relief under Miller and, therefore, that his sentence of life without eligibility for parole would stand. Wells appealed.

ANALYSIS

¶4. Wells advances a number of arguments on appeal, which may be summarized as follows: (1) that he is entitled to a new sentencing hearing because disciplinary reports and other records from the Mississippi Department of Corrections and the Jackson County Adult Detention Center were admitted into evidence in violation of the Confrontation Clause; (2) that the circuit court failed to comply with Miller and violated due process by not making a specific finding that he is "permanently incorrigible"; (3) that he has a constitutional right to have a jury determine whether he is "permanently incorrigible"; (4) that a sentence of life without parole violates the Eighth Amendment to the United States Constitution and Article 3, Section 28 of the Mississippi Constitution in all cases in which the defendant was under the age of eighteen at the time of the offense; and (5) that the circuit court misapplied Miller or abused its discretion in resentencing him to a term of life without parole.

¶5. In a series of recent decisions, this Mississippi Supreme Court and this Court have rejected arguments (2), (3), and (4).² Therefore, those arguments require no new discussion in this case. We now address arguments (1) and (5).

I. The circuit court's consideration of Wells's prison records did not violate the Confrontation Clause.

¶6. At Wells's evidentiary hearing in the circuit court, the State introduced Wells's disciplinary records from the Mississippi Department of Corrections (MDOC) and the Jackson County Adult Detention Center (JCADC) and a "Security Threat Group Participation Form" from MDOC. The form stated that Wells admitted that he had been a member of a gang but also stated that he had been "smashed out" of the gang in 2012 and no longer participated in gang activities. Wells objected to these records on multiple grounds, including the "Confrontation Clause," but the circuit court overruled Wells's objections and considered the records in its ruling. On appeal, Wells argues that the court's ruling violated his rights under the Confrontation Clause of both the Federal Constitution, U.S. Const. amend. VI, and the Mississippi Constitution, Miss. Const. art. 3, § 26. This argument is without merit because (1) the constitutional right of confrontation does not extend to a non-jury Miller hearing, and (2) the records at issue are not "testimonial."

A. The Confrontation Clause does not apply to a non-jury Miller hearing.

¶7. The Confrontation Clause of the Sixth Amendment to the Federal Constitution does not apply during the sentencing process. United States v. Dinh , 920 F.3d 307, 312 (5th Cir. 2019) ("[I]t has long been established by the Supreme Court that defendants do not have a constitutional right of confrontation or cross-examination at the sentencing phase." (citing Williams v. Oklahoma , 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) ; Williams v. New York , 337 U.S. 241, 246-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) )); Conner v. State , 138 So. 3d 143, 152 (¶26) (Miss. 2014) ("The Supreme Court of the United States has held that the Confrontation Clause does not apply during the sentencing process." (citing Williams v. Oklahoma and Williams v. New York )). Therefore, the circuit court's consideration of prison records clearly did not violate Wells's rights under the Sixth Amendment to the Federal Constitution.

¶8. The Mississippi Supreme Court has held that a defendant has a right to confront the witnesses against him at a sentencing hearing before a jury . Burgess v. State , 178 So. 3d 1266, 1280 (¶42) (Miss. 2015) (citing Pitchford v. State , 45 So. 3d 216, 252 (¶161) (Miss. 2010) ).³ However, "no such extension has been made to a sentencing before a trial judge." Id. Rather, our Supreme Court has held that a defendant has no right of confrontation at a non-jury sentencing. Id. at 1281 (¶44). Wells was resentenced by a judge, not a jury. Thus, Wells had no right of confrontation at his hearing. Id.⁴

B. The prison records are not testimonial.

¶9. Under both the Federal Constitution and the Mississippi Constitution, the right of confrontation "only applies to statements that are ‘testimonial.’ " Corbin v. State , 74 So. 3d 333, 338 (¶13) (Miss. 2011) (quoting Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ). Indeed, "a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." Ohio v. Clark , 576 U.S. 237, 135 S. Ct. 2173, 2180, 192 L.Ed.2d 306 (2015) (emphasis added). "To rank as ‘testimonial,’ a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution." Bullcoming v. New Mexico , 564 U.S. 647, 659 n.6, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (quotation marks and brackets omitted). Thus, most business records and public records "are not testimonial " because they "hav[e] been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial ." Birkhead v. State , 57 So. 3d 1223, 1234-35 (¶38) (Miss. 2011) (quoting Melendez-Diaz v. Massachusetts , 557 U.S. 305, 324, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ).

¶10. The disciplinary records at issue in this case are not testimonial. The records consist of numerous "incident reports" made by correctional officers over the course of Wells's incarceration. The JCADC reports simply state the type of infraction at issue (e.g., "contraband," "assault on staff," or "refusing to promptly obey an order"), the result of any disciplinary hearing, and any discipline imposed. Some reports note that Wells admitted to the infraction or briefly summarize the administrative decision. The JCADC records do not include any significant narrative descriptions of the incidents. Some of the MDOC records do contain brief narrative descriptions. However, there is nothing to indicate that any of the reports were made or recorded for the primary purpose of proving facts in a criminal prosecution. Rather, the apparent purpose of all of the reports is to record incidents and disciplinary actions for purposes of prison administration. Accordingly, the reports are not testimonial in nature, which means that the Confrontation Clause does not apply. State v. Raines , 362 N.C. 1, 653 S.E.2d 126, 137 (2007) (holding that "detention center incident reports" were not testimonial because they "were created as internal documents concerning administration of the detention center" and "were not taken in such a manner as to be testimonial or to be used during later criminal proceedings").⁵

¶11. The same is true of the "Security Threat Group...