Woodward v. State

• Decision Date: 07 October 1993
• Docket Number: No. 03-DP-0081,03-DP-0081
• Parties: Paul Everette WOODWARD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 805

635 So.2d 805

Paul Everette WOODWARD v. STATE of Mississippi.

No. 03-DP-0081.

Supreme Court of Mississippi.

Oct. 7, 1993.

Rehearing Denied Dec. 23, 1993.

Terryl K. Rushing, Alston Rutherford Tardy & Van Slyke, Jackson, Elizabeth DeCoux, Indianapolis, IN, for petitioner.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Jackson, for respondent.

En Banc.

ON ORIGINAL AND SUPPLEMENTAL MOTION TO VACATE JUDGMENT AND

DEATH SENTENCE

PRATHER, Presiding Justice, for the Court:

PROCEDURAL HISTORY

Paul Everett Woodward was found guilty of capital murder and sentenced to death by the jury on April 29, 1987. On direct appeal, this Court affirmed Woodward's conviction. Woodward v. State, 533 So.2d 418 (Miss.1988). Woodward's Petition for Writ of Certiorari to the United States Supreme Court was denied on April 17, 1989. Woodward v. Mississippi, 490 U.S. 1028, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989).

On September 26, 1989, Woodward filed in this Court his Application for Leave to File Motion to Vacate Judgment and Death Sentence. On November 20, 1990, Woodward filed an Application for Leave to File Amendment and Supplement to Motion to Vacate Judgment and Death Sentence, raising an additional issue based on the United States Supreme Court decisions in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). The Court accepted this Supplemental Application on December 5, 1990. Woodward raises eleven issues for consideration by the Court.

Because the sentence of death must be reversed under the Clemons decision, this Court discusses only the issue of ineffective assistance of counsel and the issues affecting the guilt portion of the trial.

ANALYSIS

I. Whether the Admission of a Sample of Woodward's Blood Which Was Obtained Without a Warrant Was Error for Which the Conviction Should Be Set Aside.

Woodward did not raise this issue on direct appeal. Normally, Miss.Code Ann. Sec. 99-39-21(1) (Supp.1993) directs that an issue not raised on direct appeal be deemed waived, unless the petitioner can meet his burden to show cause and actual prejudice. "Cause" is "defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal." Miss.Code Ann. Sec. 99-39-21(4) (Supp.1993). "Actual prejudice" is "defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence. Miss.Code Ann. Sec. 99-39-21(5) (Supp.1993).

Woodward cannot meet the test of cause. Here, the basis of the Fourth Amendment objection to the admission of illegally obtained evidence is certainly by now deeply rooted and well known. This Court has a long tradition of reversing convictions based on the admission of illegally obtained evidence. See Lewis v. State, 198 Miss. 767, 23 So.2d 401 (1945). As for actual prejudice, under the weight of the evidence against him, including written and videotaped confessions, Woodward had practically no chance of escaping conviction even without this evidence. This issue is barred by the waiver of Miss.Code Ann. Sec. 99-39-21(1) (Supp.1993).

II. Whether Defense Counsel's Performance at Trial and on Direct Appeal was Constitutionally Ineffective.

This is the one issue which the State admits is not procedurally barred. Indeed, this Court has noted that a defendant is entitled to one opportunity to raise this issue. Perkins v. State, 487 So.2d 791, 792-93 (Miss.1986). Where the same counsel represents the defendant at trial and on direct appeal, the claim is procedurally viable on application for post-conviction relief. Id. However, in order to receive a hearing on his claim of ineffective assistance, the post-conviction applicant to this Court must demonstrate with specificity and detail the elements of the claim. Id. at 793.

The law on ineffective assistance emanates from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires the defendant to demonstrate that his counsel was deficient and that the deficient performance prejudiced his defense. "The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Once a deficient performance is shown, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In the present case, Woodward alleges numerous errors of counsel at both the guilt phase and the penalty phase of his trial.

A. Guilt Phase

Woodward alleges the following errors at the guilt phase of the trial:

1. His attorneys sat with their backs to him during the course of the trial because of their fear of violence from the audience, which resulted in giving the jury the impression that they were distancing themselves from him.

2. The attorneys made no opening statement and therefore failed to rebut victim character evidence injected by the State.

3. The attorneys failed to cross-examine ten (10) State witnesses, giving the impression that they had little faith in Woodward's case.

4. One attorney complimented the district attorney.

5. One attorney assisted a State witness in identifying Woodward.

6. The attorneys waived voir dire of some jurors.

7. The attorneys failed to use all of their peremptory challenges to the venire.

8. One attorney admitted that Woodward was guilty of kidnapping and murder, which caused the District Attorney to request a mistrial. Subsequently, the other attorney referred back to this candor during his own closing argument.

9. One attorney's closing argument negated a defense of consent.

It will suffice to say most of these assertions are either not borne out by the record or are inconsistent with a claim of ineffective assistance when placed in the context of circumstances under which they occurred. We choose to discuss only Woodward's allegation that his attorney admitted his guilt of the crime. In fact, the attorney admitted that Woodward was guilty of simple murder, not capital murder, and submitted a lesser-included offense instruction in accordance with the argument. The argument was that Woodward was guilty only of simple murder since his confession indicated that he shot the victim after the completion of the rape and while he was leaving the scene and that; therefore, the murder did not occur during the commission of the felony.

This Court has faced similar allegations in other cases, and found that the attorney's strategic decision to admit to a lesser crime than that charged in the indictment did not amount to deficient performance. In a very similar case to the one at bar, Wiley v. State, 517 So.2d 1373 (Miss.1987), cert denied 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610 (1988), an attorney admitted in his opening statement that he thought the jury would find that his client shot the victim. The attorney's theory was that the shooting was not capital murder as charged in the indictment. Although this Court was concerned with this strategy and stressed the point that an attorney is not to stipulate to facts amounting to a guilty plea, this Court, nevertheless found that the attorney had made a strategic decision which did not amount to deficient performance. Id. at 1382.

Even more similar is Faraga v. State, 514 So.2d 295 (Miss.1987), cert. denied 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 894 (1988), where the defense counsel admitted the defendant had committed simple murder in a capital murder case and submitted an instruction in accordance with his admission. This Court in Faraga was also concerned about the attorney's admitting too much, but found the decision tactical and made in order to gain the jury's confidence and to attempt to mitigate the sentence. This Court found the argument "the best argument he could make given the circumstances under which he found his client." 514 So.2d at 308.

In the instant case, these attorneys similarly could not do much at the guilt phase of this trial. The evidence of guilt was overwhelming. In addition to separate written and videotaped confessions, which were properly admitted, the State presented a mountain of evidence. A housewife near the scene of the crime saw a white logging truck stopped in front of her house and a white man forcing a blonde woman in a yellow dress into his truck. After the truck drove off, the housewife found the victim's car on the highway, with the door open and the motor still running. A motorist reported to law enforcement officers that he saw a white logging truck moving away from a car with an open door on the highway. Woodward unquestionably was in the area that day, driving his white logging truck. His white logging truck was the only white logging truck at the logging mill. Law enforcement found a fountain pen at the crime scene matching pens found in Woodward's truck. Tests of Woodward's blood showed that he could not be excluded as the perpetrator. On the evidence presented, it is impossible to imagine a Mississippi jury that would not have convicted Woodward. He was "hopelessly guilty." Caldwell v. State, 481 So.2d 850 (Miss.1985) (remanded on other grounds, Caldwell v. Mississippi, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987).

Assuming for the sake of argument that Woodward's counsel was deficient in the guilt phase, he, in order to prevail on an ineffective assistance of counsel claim, must also show that the result of the guilt phase would have been different. The proof in the case does not present reasonable probability...