Wiley v. State

Decision Date25 November 1987
Docket NumberNo. DP-57,DP-57
Citation517 So.2d 1373
PartiesWilliam L. WILEY v. STATE of Mississippi.
CourtMississippi Supreme Court

Kenneth J. Rose, Jackson, James T. McDermott, James C. McKay, Covington & Burling, Washington, D.C., for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Donald G. Barlow, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ON APPLICATION FOR LEAVE TO FILE AMENDED MOTION TO VACATE,

OR SET ASIDE, JUDGMENT, CONVICTION AND SENTENCE OF DEATH

PRATHER, Justice, for the Court:

William L. Wiley, the petitioner, has filed an application for leave to file an amended motion to vacate or set aside judgment, conviction and sentence of death under the Mississippi Uniform Post-conviction Collateral Relief Act. Miss.Code Ann. Sec. 99-39-1 et seq. (Supp.1987). After Wiley's first capital murder trial, this Court affirmed the conviction, but reversed the sentence due to the prosecutor's comment, during closing argument to the jury, on reviewability of the death sentence. Wiley v. State, 449 So.2d 756 (Miss.1984) (hereinafter Wiley I ). Wiley was given another sentencing and again received the death sentence. On direct appeal, this Court affirmed the second sentence. Wiley v. State, 484 So.2d 339 (Miss.1986), (Wiley II ) cert. denied, --- U.S. ----, 107 S.Ct. 304, 93 L.Ed.2d 278, reh. denied, --- U.S. ----, 107 S.Ct. 604, 93 L.Ed.2d 604 (1986).

I.

The facts reveal the murder of J.B. Turner in DeSoto County in the early morning hours of August 22, 1981, as he and his daughter were closing the small convenience store which he operated. The assailant fired three times with a shotgun, killing Turner and seriously injuring his daughter. Several weeks later Wiley was arrested. He confessed to the robbery and the murder, and he led law enforcement officers to the place where he threw away a money sack.

II.

The petitioner assigns the following as grounds for his application for post-conviction relief:

A. Petitioner was deprived of his right to effective assistance of counsel at his 1984 sentencing trial (Wiley II ).

B. Petitioner was deprived of his right to effective assistance of counsel at his 1982 guilt phase trial (Wiley I ).

C. The prosecutor's exclusion of all potential black jurors from petitioner's guilt trial (Wiley I ) and the exclusion of all but one potential black juror from petitioner's sentencing hearing creates a prima facie violation of Batson v. Kentucky and Griffith v. Kentucky.

D. The prosecutor's exclusion of all potential black jurors from petitioner's guilt trial (Wiley I ) and the exclusion of all but one potential black juror from petitioner's sentencing hearing (Wiley II ) violated the Equal Protection Clause of the Fourteenth Amendment.

E. Petitioner's sentence of death is tainted by racial bias and discrimination in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

F. The trial court erred by admitting incompetent, prejudicial, cumulative, and irrelevant evidence.

G. Prosecutorial misconduct deprived petitioner of a fundamentally fair trial at the sentencing stage and resulted in a sentence of death that was imposed under the influence of passion, prejudice and other arbitrary factors.

H. The Mississippi Supreme Court's appellate and proportionality review of the sentence of this case violated petitioner's rights.

I. Petitioner's constitutional rights were violated by the exclusion from the jury of persons opposed to the death penalty.

J. An invalid duplication of aggravating circumstances, when statutory mitigating circumstances are not present, involves an important question left open by Barclay v. Florida affecting all states with death penalty "balancing statutes".

K. The finding by the jury of the "especially heinous, atrocious and cruel" aggravating circumstances violated petitioner's constitutional rights.

L. The trial court's failure to grant petitioner's requested "mercy" instruction violated petitioner's constitutional rights.

M. The trial court erred in failing to instruct the jury regarding the burden of proof when weighing aggravating and mitigating circumstances.

N. The trial court erred in instructing the jury on the "capital offense committed during the commission of robbery" aggravating circumstance.

O. The trial court's instruction C-3 was unconstitutional and tantamount to a mandatory death sentence.

P. The trial court's instruction C-3 failed to give proper weight to general mitigating evidence.

Q. Mississippi's $1,000 limit on trial counsel reimbursement denies petitioner equal protection.

R. Mississippi's capital sentencing scheme is unconstitutional when viewed as a whole.

III.

Issues E, F, H, I, J, K, L and M were assigned as error on direct appeal and decided adversely to Wiley's position. This Court does not consider on a petition of this nature, issues raised and decided on the original appeal, even though theories for relief different from those urged at trial and on appeal are now asserted. Miss.Code Ann. Sec. 99-39-21(2), (3); Johnson v. State, 511 So.2d 1333, 1336, (Miss.1987). Dufour v. State, 483 So.2d 307, 311 (Miss.1985). Wiley admits that the doctrine of collateral estoppel, or res judicata, applies to all these enumerated issues, except for his assertion under Issue F which alleges that the trial court erred in admitting into evidence testimony of the deceased victim's wife regarding the character of the victim. Wiley refers to the "intervening decision" of the U.S. Supreme Court in Booth v. Maryland, --- U.S. ----, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). However, an intervening decision alone does not preclude a waiver under Miss.Code Ann. Sec. 99-39-21, but can only except the case from the effect of the three-year statute of limitations in Sec. 99-39-5(2) and the prohibition of second petitions in Sec. 99-39-27(9).

Because this Court has considered all these points on their merits on the direct appeals by Wiley, Wiley cannot now be allowed to relitigate the same issues. Wilcher v. State, 479 So.2d 710 (Miss.1985); Callahan v. State, 426 So.2d 801 (Miss.1983). The issues were decided against Wiley's position, and he is not entitled to an evidentiary hearing on the same subject matter. On these points, the motion is denied as to Issues E, F, H, I, J, K, L, and M.

IV.

Issues C, D, G, N, O, P, Q and R were not raised on direct appeal or at the trial court. Thus, the claims are procedurally barred and not subject to further review by this Court, under Miss.Code Ann. Sec. 99-39-21. Wilcher v. State, 479 So.2d 710 (Miss.1985).

Additionally, claims which were available, but not previously asserted on direct appeal, are waived, and on this additional ground these claims are not subject to further review.

For the above reasons, the enumerated claims cannot not be litigated; an evidentiary hearing on Issues C, D, G, N, O, P, Q, and R is denied.

V.

Of the remaining viable issues for consideration on this application, Issues A and B relate to Wiley's claim that he was denied effective assistance of counsel. There is no waiver of these issues as the same counsel represented Wiley at both trials and on both direct appeals. See Read v. State, 430 So.2d 832 (Miss.1983).

The basis of this claim is grounded in our Constitution; the right of an accused in a criminal prosecution to counsel is guaranteed in Art. 3, Sec. 26, Mississippi Constitution. A similar right is guaranteed by the Federal Constitution. U.S. Const. amends. VI and XIV. The right to counsel encompasses the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The legal standard by which this Court considers a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, supra, the Court makes a two-pronged inquiry; first, a defendant must show that counsel's performance was deficient by identifying specific acts and omissions. Counsel's conduct, viewed as of the time of the actions taken, must have fallen outside of a wide range of reasonable professional assistance. The attorney's actions are strongly presumed to have fallen within that range, and a court must examine counsel's conduct without the use of judicial hindsight. Secondly, a defendant must show that the deficient performance was prejudicial, that is, that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Faraga v. State, 514 So.2d 295 (Miss.1987); Johnson v. State, 511 So.2d 1333, 1339-40 (Miss.1987). There is a strong presumption that counsel's decisions are sound trial strategy. Faraga, supra; Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985). The severity of the charge is part of the totality of the circumstances that must be considered, Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983), cert. denied, 429 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984), but a case of clear guilt supported by confessions and direct evidence is less likely to support a claim of ineffectiveness since the second (prejudice) prong of the Strickland test will be difficult to meet. Faraga, supra; Evans v. State, 485 So.2d 276, 281 (Miss.1986).

VI.

Regarding this ineffective counsel claim at sentencing, the application may be generally summarized as allegedly deficient in the following general areas:

A. Enmund Intent Question:

Since March 29, 1983, the effective date of Miss.Code Ann. Sec. 99-19-101(7), 1 the imposition of a sentence of death cannot be imposed upon a person unless there is a written finding by the sentencing jury of one or more of the following factors: that the defendant actually killed, attempted to kill, intended that a killing take place, or contemplated that lethal force...

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