Scott v. State
| Docket Number: | 1999-DP-00317-SCT Linked Case(s): 1999-DP-00317-SCT |
|
| Oral Argument: | 02-11-2004 | |
* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users). |
||
| Supreme Court: | Opinion Link Opinion Date: 06-10-2004 Opinion Author: Easley, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Death penalty direct appeal - Mental retardation - Competence - Opening statement - Striking of jurors - Victim impact evidence - Lesser included offense instruction - Jury instructions - Closing argument - Sentencing instructions - Defining mitigation - Avoiding lawful arrest aggravator - Sympathy instruction - Photographs - Jury deliberations - Misstatement of law - Juror questionnaire - Discrimination - Aggravating factors - Proportionality of death sentence Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Concur in Part, Dissent in Part 1: Graves, J., Concurs in Part and Dissents in Part Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
|
| Trial Court: |
Date of Trial Judgment: 10-23-1998 Appealed from: Bolivar County Circuit Court Judge: Kenneth L. Thomas Disposition: Convicted of capital murder and sentenced to death. District Attorney: Laurence Y. Mellen Case Number: 8338 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Kevin Scott |
RAYMOND L. WONG
CLIVE ADRIAN STAFFORD-SMITH |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JUDY T. MARTIN MARVIN L. WHITE, JR. |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Death penalty direct appeal - Mental retardation - Competence - Opening statement - Striking of jurors - Victim impact evidence - Lesser included offense instruction - Jury instructions - Closing argument - Sentencing instructions - Defining mitigation - Avoiding lawful arrest aggravator - Sympathy instruction - Photographs - Jury deliberations - Misstatement of law - Juror questionnaire - Discrimination - Aggravating factors - Proportionality of death sentence |
| Summary of the Facts: | Kevin Scott was convicted of capital murder and sentences to death. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Mental retardation Scott argues that he is mentally retarded and that under Atkins v. Virginia, 536 U.S. 304 (2002), his sentence of the death penalty is barred as prohibited by the Eighth Amendment to the U.S. Constitution. He supports his claim on the testimony of Dr. Mulry Tetlow that Scott had an I.Q. (intelligence quotient) of 60. A diagnosis of mental retardation requires more than a low I.Q. score, as inability to function adaptively in society also is necessary. The proof in this record does not support Scott's claim of being mentally retarded as to require remand to the trial court for an Atkins hearing. Dr. Tetlow did not offer any opinion that Scott was mentally retarded but testified that Scott functioned in the range of borderline retardation. Issue 2: Competence Scott argues that the court erred by failing to conduct a competency hearing sua sponte following the impaneling of the jury despite his erratic behavior. The standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. The record shows that Scott had two competency hearings, one before trial and one before the State rested its case-in-chief. Two experts testified as to Scott's competency. The trial court gave a detailed on the record ruling which is in compliance with UCCCR 9.06. His ruling was not manifestly against the overwhelming weight of the evidence. Issue 3: Opening statement Scott argues that his trial counsel admitted to the charge and aggravating factor of robbery, therefore, de facto, pleaded him guilty in the opening statement. However, Scott's testimony confirmed the defense's statements made in the opening remark. Scott cannot testify to his account of the facts on one hand and then also raise on appeal that his case should be reversed because his counsel gave the same facts as a preview of what the evidence would show. Issue 4: Striking of jurors Scott argues that the court erred in striking jurors who stated in the abstract that they opposed the death penalty but stated they could follow the law. Jurors who oppose the death penalty or believe it unjust, may serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law. Here, the juror went back and forth on the death penalty issue. Therefore, the court did not err in striking her for cause. Scott also argues that the court erred by not striking four jurors who stated that they could not conform their conduct to the law and would automatically return a verdict of death. However, none of these four jurors actually served as part of the jury. In addition, all of these jurors stated that they could set aside there opinions and follow the law in the case. Issue 5: Victim impact evidence Scott argues that the court erred in allowing the prosecution to admit what Scott alleges to be victim impact evidence from the victim’s testimony during the guilt phase. Because Scott did not raise any objection at trial to the line of questioning or testimony, this issue is now procedurally barred. In addition, the testimony was not "victim impact" testimony but was solicited to explain the circumstances surrounding the crime and established guilt. Issue 6: Lesser included offense instruction Scott argues that the court erred by denying an instruction on the lesser-included offense of murder. A lesser included instruction is appropriate where a lesser offense is identified within the charged offense and a rational jury could find the defendant guilty of the lesser offense but not guilty of the greater one. Here, the evidence presented in the case does not support a reasonable jury finding Scott guilty of murder rather than capital murder. Issue 7: Jury instructions Scott argues that the court erred in denying his proposed instruction that a confession is not conclusive. Since the court's instruction C-1 adequately instructed the jury on its role as the sole judge of the weight and credibility to assign to all testimony and evidence presented, denial of Scott’s instruction was not error. Scott also argues that the court erred by denying an instruction dealing with identification evidence. Because the case against Scott was not based solely on the testimony of one eyewitness, the instruction was properly denied. Scott also argues that the court erred in not granting his proposed instruction dealing with degree of participation in the criminal act. Here, the record clearly reflects evidence of Scott's participation in the criminal acts. Therefore, denial of the instruction was proper. Issue 8: Victim impact evidence Scott argues that the court permitted improper use of victim impact evidence at the sentencing phase. However, this issue is procedurally barred for failure to allege any specific error. Issue 9: Closing argument Scott argues that the State impermissibly made reference from the Bible, to God and God's law in its closing argument. Scott never objected to the statements made by the State on close. Therefore, the issue is procedurally barred. Issue 10: Sentencing instructions Scott argues that the court erred in denying proposed sentencing instruction dealing with victim impact evidence. Through instructions given by the court, the jury was properly instructed as to what it could consider as an aggravating factor in this case. Scott also argues that the sentencing instruction given by the court improperly instructed the jury that it had to unanimously find that mitigating circumstances exist, and that those mitigating circumstances must outweigh any aggravating circumstances. However, the Supreme Court has repeatedly approved sentencing instructions similar to the one in this case. Issue 11: Defining mitigation Scott argues that the court gave the standard of proof for aggravating circumstances numerous times in the instructions, yet never defined the standard of proof for mitigation. The Supreme Court has found no error when an instruction failed to give the burden of proof for any mitigating factors. Issue 12: Avoiding lawful arrest aggravator Scott argues that the court impermissibly submitted to the jury the aggravating circumstances that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest. If there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to 'cover their tracks' so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance. There is sufficient evidence in the record from which it may be reasonably inferred that a substantial reason for killing the victim was to conceal the identity of the killer or killers so as to avoid apprehension and eventual arrest by authorities. Issue 13: Sympathy instruction Scott argues that the court erred by instructing the jury that it could not consider sympathy. An instruction which does not inform the jury that it must disregard in toto sympathy is a proper statement of the law. Here, the court never told the jury to completely disregard sympathy in toto. In addition, the language used by the court to instruct the jury is well recognized as within the acceptable parameters. Issue 14: Photographs Scott argues that the court erred in allowing crime scene photographs of the victim into evidence. Photographs are considered to have evidentiary value when they aid in describing the circumstances of the killing, describe the location of the body and cause of death, or supplement or clarity witness testimony. Scott has not established that the court erred in admitting the photographs. Issue 15: Jury deliberations Scott argues that the court erred by returning the jury to deliberate after the jury had returned a verdict less than death. It is up to the trial judge to dismiss the jury and impose a life sentence if the jury had not reached a verdict within a reasonable amount of time. Here, no imposition of a life sentence was given by the jury, and the trial court determined what the reasonable time period was for the jury. Issue 16: Misstatement of law Scott argues that the prosecution misstated the law in three ways: the jury was told their responsibility under the law of God and man was to return a verdict for death; the prosecution attempted to persuade the jury that mitigating evidence was merely an “excuse”; and the prosecution implied that the prosecutors and jury share a common role in this case. This issue is procedurally barred since Scott failed to object. Issue 17: Juror questionnaire Scott argues that his constitutional rights of equal protection were violated by excluding a juror from service without precisely knowing why she was unable to complete the juror questionnaire. Jurors must have the ability to read and write. Here, the juror stated that she could fill out some of the form and she had her sister-in-law actually fill out the form for her. Therefore, the judge was within his discretion when he dismissed the juror based upon her answers and inability to complete the form. Issue 18: Discrimination Scott argues that there is discrimination on the application of the death penalty in Mississippi. Scott has the burden of proving the existence of purposeful discrimination and in that he must prove that the decisionmakers in his case acted with discriminatory purpose. Scott has cited no instance in the record where the decisionmakers in his capital murder case acted with a discriminatory purpose. Issue 19: Aggravating factors Scott argues that at least one and probably all three of the aggravating circumstances in this case were invalid. The jury found the aggravating circumstances that the capital murder was committed for the purpose of avoiding or protecting a lawful arrest and while the defendant was engaged or was an accomplice in the commission of the crime of robbery. The alleged aggravating circumstance that the capital offense was especially heinous, atrocious or cruel was not submitted to the jury. Scott fails to argue anything in regard to the robbery aggravating factor. With regard to the remaining aggravating factor, there is abundant evidence to support the aggravating circumstance that the capital offense was committed by Scott for the purpose of avoiding or preventing a lawful arrest. Issue 20: Proportionality of death sentence Scott's death sentence was not imposed under the influence of passion, prejudice, or any other factor. The evidence is more than sufficient to support the jury's finding of statutory aggravating circumstances. In comparison to other factually similar cases where the death sentences was imposed, the sentence of death is neither excessive of disproportionate in this case. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
