Walker v. State
| Docket Number: | 97-DR-00376-SCT Linked Case(s): 97-DR-00376-SCT ; 97-DR-00376-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-16-2003 Opinion Author: Smith, P.J. Holding: Applications for Post-Conviction Relief, Denied. |
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| Additional Case Information: |
Topic: Death penalty post-conviction - Ineffective assistance of counsel - Jury instruction - Continuance - Sentencing instruction - Challenges for cause - Peremptory challenges - Voir dire - Proportionality of sentence Judge(s) Concurring: Pittman, C.J., Waller, Cobb, Easley, Carlson and Graves, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: McRae, P.J. Procedural History: Jury Trial Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 08-12-1991 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: Appellant was convicted of capital murder and sentenced to death. Case Number: 24945 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Alan Dale Walker |
ROBERT M. RYAN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR. |
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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. |
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| Topic: | Death penalty post-conviction - Ineffective assistance of counsel - Jury instruction - Continuance - Sentencing instruction - Challenges for cause - Peremptory challenges - Voir dire - Proportionality of sentence |
| Summary of the Facts: | Alan Walker was found guilty of the crimes of capital murder during the commission of a sexual battery, rape and kidnaping. The jury returned a sentence of death. Walker received additional consecutive sentences of thirty-five years for the rape conviction and thirty years for the kidnaping charge. On direct appeal, his convictions and sentence were affirmed. Walker filed several petitions and appeals, which were all denied. Walker has now filed a Petition for Post Conviction Collateral Relief. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Walker argues that his trial counsel’s failure to raise the denial of his motion for continuance in the motion for new trial and to show the Supreme Court how the denial resulted in irreparable injury to the petitioners’s defense constituted ineffective assistance of counsel. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Not only is this claim procedurally barred since it was presented on direct appeal, but Walker cannot demonstrate that there exists a reasonable probability that, even assuming deficient performance, the results of the proceeding would have been different. Walker also argues that trial counsel was ineffective in failing to offer additional lesser-included offense instructions for consideration by the trial court. Since the claim was held to be without merit on direct appeal, Walker cannot demonstrate the required prejudice to sustain a claim of ineffective assistance of counsel. Walker argues that trial counsel was ineffective in failing to object to the admission of a photograph of the victim taken prior to her death. Since the claim was alternatively held to be without merit on direct appeal, Walker cannot demonstrate the requisite prejudice to demonstrate a claim of ineffective assistance of counsel. Walker argues that trial counsel was ineffective in failing to object to testimony by the pathologist regarding the condition of the victim’s body at the time he performed the autopsy. Since the underlying substantive claim was decided on the merits on direct appeal and held to be without merit, Walker cannot demonstrate the requisite deficient performance and prejudice. Walker argues that trial counsel was ineffective in failing to object to an aiding and abetting instruction. However, the instruction was a proper statement of the law in 1991at the time of trial. Trial counsel is not required to be prescient, but only to know the law as it exists at the time of trial. Walker also argues that trial counsel was ineffective in failing to object to the submission of the aggravating circumstance that the crime was committed while he was engaged in the commission of a sexual battery. His claim that trial counsel did not object to the sentencing instruction on the basis of the sufficiency of the evidence to prove sexual battery is specious, and the record indicates otherwise. In addition, Walker has not demonstrated deficient performance and actual prejudice because an objection was made to the inclusion of this aggravating factor. Walker makes several claims that counsel was ineffective in failing to object to instances of what he claims were prosecutorial misconduct. The first concerns the prosecutor's comments regarding his unsworn statements of remorse at the conclusion of the sentencing phase of the trial. However, after making his statements regarding remorse, Walker cannot be heard to complain that the State made an argument in rebuttal of his assertions of remorse. The second concerns comments of the prosecutor which he contends vouched for the reliability of a witness’s testimony. On direct appeal, the Court found that the comment was not reversible error and therefore, Walker cannot show prejudice. The third concerns certain misstatements of the law by the prosecutor. Since the underlying substantive merits of the claim were held to be without merit on direct appeal, Walker cannot demonstrate the required deficient performance and prejudice. Walker argues that the cumulative effect of the above errors demonstrates ineffective assistance of counsel. Once several instances of deficient performance have been found to exist, the prejudice inquiry can take the cumulative effect of the deficient performance into account. Here, the claims raised have all been held to be without merit so no prejudice can be shown individually or cumulatively. Walker also argues that his trial counsel failed to interpose an objection to the emotional outbursts during the trial proceedings. Since the underlying substantive issues of the ineffectiveness claim have been held to be without merit on direct appeal, Walker cannot establish deficient performance and prejudice. Walker argues that trial counsel was ineffective in failing to request the court to impose upon him the same sentence received by his co-defendant. On direct appeal, the Court concluded that the sentence was not disproportionate to the crime. Therefore, Walker suffered no prejudice. Issue 2: Jury instruction Walker argues that the court erred in granting Instruction S-9. This claim was raised on direct appeal and held to be procedurally barred for failure to object at trial. Since the claim was considered on direct appeal, it is now res judicata. Issue 3: Continuance Walker argues that the court erred in failing to grant a continuance. This claim was addressed on the merits on direct appeal and decided against Walker. He cannot raise this claim again on post-conviction review. Issue 4: Sentencing instruction Walker argues that the sentencing instruction given in this case is error because it only required the jury to find that he contemplated that lethal force would be used. Because no such claim was raised at trial or on direct appeal, the claim is barred. In addition, the jury was properly instructed that it could consider all of the intent factors and made a finding of two of these factors beyond a reasonable doubt. That is all that is required by the decisions of the United States Supreme Court and the federal constitution. Issue 5: Challenges for cause Walker argues that certain jurors should have been removed from the jury for cause because of their views on the death penalty. This claim is nothing more than an attempt to relitigate a claim that has already been fully discussed and decided against Walker. Issue 6: Peremptory challenges Walker argues that the State used its peremptory challenges in a racially discriminatory manner. This claim was litigated at trial and on direct appeal and is res judicata. Issue 7: Voir dire Walker argues that trial counsel was ineffective in failing to conduct an adequate voir dire examination. Since the underlying substantive merits of the claim have been held to be without merit, Walker cannot demonstrate the requisite deficient performance and actual prejudice to establish a claim of ineffective assistance of counsel. Issue 8: Proportionality of sentence Walker argues that his sentence is disproportionate to that received by his co-defendant and thereby violates the Eighth Amendment. There is no Eighth Amendment right to have a state court conduct any proportionality review at all. In addition, this claim is res judicata. |
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