Wilcher v. State
| Docket Number: | 1998-DR-01821-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-02-2003 Opinion Author: Easley, J. Holding: APPLICATIONS FOR LEAVE TO SEEK POSTCONVICTION RELIEF DENIED |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Cross-examination - Recusal of judge - Ineffective assistance of counsel - Biblical references - Challenge for cause - Jury venire - Jury deliberations - Sentencing instructions - Cruel and inhuman treatment Judge(s) Concurring: Pittman, C.J., McRae and Smith, P.JJ., Waller, Cobb and Carlson, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Graves, J. Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 06-23-1994 Appealed from: Scott County Circuit Court Judge: Marcus D. Gordon Disposition: Appellant was convicted of capital murder and sentenced to death. Case Number: 3707 |
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| Note: | Supplemental and Amended Application of Bobby G. Wilcher for Leave to Seek Post-Conviction Relief, denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Bobby Glen Wilcher a/k/a Bobby Glenn Wilcher |
ROBERT M. RYAN
LOUWLYNN WILLIAMS
WILLIAM CLAYTON |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR. CHARLENE R. PIERCE JO ANNE McLEOD JERROLYN M. OWENS |
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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 relief - Cross-examination - Recusal of judge - Ineffective assistance of counsel - Biblical references - Challenge for cause - Jury venire - Jury deliberations - Sentencing instructions - Cruel and inhuman treatment |
| Summary of the Facts: | Bobby Wilcher was found guilty in two cases for murder and sentenced to death in 1982. Both capital murder convictions and sentences of death were affirmed on direct appeal. Eventually, both of Wilcher's death sentences were vacated by the Mississippi Supreme Court and remanded for new sentencing proceedings. Wilcher was again sentenced to death in both cases and both sentences were affirmed on appeal. Wilcher now files his post-conviction application for leave to proceed in the trial court regarding his capital murder conviction and death sentence for murder. |
| Summary of Opinion Analysis: | Issue 1: Cross-examination Sheriff Glenn Warren took Wilcher's statements during the investigation of these crimes and testified in 1982 during the guilt phase. In 1989, Sheriff Warren was convicted of extortion. Shortly after this conviction and before Wilcher's resentencing trial, Sheriff Warren died. At Wilcher's resentencing, the judge allowed Sheriff Warren's 1982 testimony to be read into evidence, but he would not allow the defense to introduce evidence of the sheriff's 1989 extortion conviction for the purpose of impeachment. Wilcher argues that the court violated his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 3, Section 26, of the Mississippi Constitution. This issue was fully addressed in Wilcher’s direct appeal and is procedurally barred. Not allowing the sheriff's conviction into evidence was within the judge's discretion under M.R.E. 609(a)(1). Wilcher also argues that the judge did not possess impartial judgment and should have recused himself from the trial, because the judge represented Sheriff Warren on the extortion charge. This issue is procedurally barred because it was capable of being raised at trial or on direct appeal. A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. While Wilcher’s argument that the judge should have recused himself may have merit, he cannot show actual prejudice because, despite his contention, the sheriff's testimony was not the only link to robbery as an aggravating circumstance to the capital murder charge. Wilcher also argues that there has been an intervening decision which would have actually adversely affected the outcome of his conviction or sentence. The case on which Wilcher relies is Young v. State, 731 So.2d 1145 (Miss. 1999) in which the Court held that, since the witness was not a party, any prejudice to him was irrelevant and to deny Young the right to fully explore this aspect of the witness’s credibility is to deny Young the right to fully confront the witness against him. This case is distinguishable from Young. Sheriff Warren was convicted for extortion seven years after his testimony was given in 1982. When his testimony was given in 1982, he did not have a prior felony conviction. Further, the sheriff was not present to testify against Wilcher in 1994. In Young, the witness was present to testify, and he had a prior felony conviction for burglary. Issue 2: Ineffective assistance of counsel Wilcher argues that his trial counsel allowed his Fifth and Sixth Amendment rights to be violated when they allowed him to be interviewed by the State's psychological and psychiatric experts outside the presence of counsel. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Since the underlying substantive claim used to support the claim of ineffective assistance of counsel was found to be without merit on direct appeal, Wilcher cannot show that his counsels' performance was deficient and cannot show actual prejudice. Wilcher also argues that his trial attorneys were ineffective for failing to cross-examine the State’s expert. The record shows that Wilcher's attorneys had already obtained favorable testimony from the three doctors called to testify on Wilcher's behalf, and that the State offered their expert as a rebuttal witness. Any failure to cross-examine the State's doctor is not deficient as such could possibly have bolstered his testimony and given the State more ammunition. With regard to two interviews a journalist conducted with Wilcher, Wilcher argues that his defense attorneys were ineffective in handling various aspects of the interview evidence presented at trial, because certain statements made in the two interviews conflict in many ways and his attorneys should have offered statements from one interview in mitigation of the damning statements from the other interview. However, Wilcher cannot show how the outcome of the proceedings would have been different had the statements been presented to the jury. Wilcher also argues that his attorneys were ineffective because they failed to present evidence of his good behavior while incarcerated to refute any evidence by the prosecution that Wilcher had the propensity to kill again. However, Wilcher's prison record from Parchman Penitentiary hardly reflects good behavior. Wilcher also argues his attorneys failed to properly develop and present mitigating psychological evidence. However, Wilcher's attorneys did present a case in mitigation that can validly be said to be strategic and also investigated and introduced mitigating evidence from three doctors, one of whom was a psychologist. Wilcher also argues that his trial counsel was ineffective for failing to seek a continuance in order to better prepare. However, there is no indication from the record that Wilcher's attorneys were in need of additional time or that their failure to obtain a continuance was deficient. Wilcher also argues that his capital murder conviction for the second murder was improperly introduced into evidence as an aggravating factor and that his attorneys made no objection or argument to prevent its introduction. However, the record shows that these issues were presented to the court in pretrial motions presented by Wilcher's attorneys. Wilcher argues that the discussion of both murders throughout the trial gave the jurors the opportunity to punish Wilcher for both crimes. Not only is this issue barred, but the jury was properly instructed to sentence Wilcher for the death of Moore. Wilcher provided the unsworn statements of five jurors that purport that Wilcher was occasionally seen in shackles by those five jurors. An unsworn statement of a juror is insufficient evidence to support Wilcher's allegation. In addition, Wilcher's attorneys filed a motion to preclude the sheriff's department from bringing defendant into court in shackles which the court granted. There is a presumption that the court's order was enforced. Wilcher again argues that the defense should have been permitted to introduce Sheriff Warren's 1989 extortion conviction to impeach the sheriff's testimony. Even if it were assumed that Wilcher's attorneys were deficient for failing to discover that Judge Gordon had represented Sheriff Warren regarding his conviction, he has not demonstrated how the outcome of the proceedings would have been different. Wilcher argues that his attorneys were ineffective for failing to object to the State's reintroducing of evidence from the guilt phase at the sentencing phase. Any attempt to object to the reintroduction of evidence from the guilt phase by Wilcher's attorneys would have been properly overruled. Wilcher argues that his attorneys were ineffective for failing to attack the admission of his confessions. Based on Wilcher's inability to argue residual doubt in this case, Wilcher's attorneys were unable to attack the murder, the robbery, or the kidnaping. Wilcher argues that his attorneys were ineffective for failing to obtain DNA testing on the exhibits. This would be an attack on Wilcher's guilt which could not procedurally be introduced. Wilcher argues that his attorneys were ineffective for not objecting when the trial court transferred venue to Harrison County. The decision to obtain a venue change is within the realm of strategy. Wilcher argues that counsel were ineffective in refusing to redact improper sentences from jury instructions. The decision to redact a portion of the jury instruction or tender it in its entirety falls within the realm of trial strategy. Wilcher argues that his attorneys were ineffective for failing to pursue a special venire in Harrison County. Counsel's failure to request a special venire could easily be characterized as trial strategy. Wilcher argues that his attorneys were ineffective for failing to move for the recusal of the judge. However, Wilcher's allegation that the judge's decision was based on impartiality is misplaced. Wilcher argues that his attorneys failed to utilize all of Wilcher's peremptory challenges despite three of the selected jurors being related to someone who was either in law enforcement or an Assistant U.S. Attorney. There is nothing in the record that indicates that those jurors could not have been, or in fact were not, fair and impartial. Wilcher also argues his attorney failed to make a challenge to the peremptory strikes made by the State during the jury selection process. The decision to make a Batson challenge falls within counsel's trial strategy and the wide latitude given to him. Wilcher also argues that his trial counsel did not try to limit the testimony of the victim's family to only that testimony which would serve to explain any events of the murder. However, the record shows that Wilcher's attorneys did attempt to limit the testimony. Wilcher argues that the State picked up on statements made by his attorney during closing argument to argue that the defense conceded that its evidence was feeble. However, the attorney was simply telling the jury that the mitigating factors may explain why Wilcher committed the murders. Wilcher also argues that his attorneys were ineffective because they conducted voir dire and the penalty trial without a cohesive strategy and their strategy was merely to assert that Wilcher had an alcoholic, abusive father. However, the trial strategy put forth by Wilcher's attorneys went far beyond Wilcher's drunken father. Wilcher argues that his attorneys were ineffective for failing to object and preserve issues for review during the trial. However, he has failed to offer specific instances of counsels' failure to preserve a fundamental error at trial. Wilcher argues that his attorneys were ineffective for failing to fully investigate Wilcher's case. However, his assertion that his trial would have had improved results if his attorneys had done a better job of investigation is speculative at best. Issue 3: Biblical references Wilcher argues that the prosecutor’s use of the Bible to argue that there was no need to weigh mitigating and aggravating factors was highly improper. Arguments with religious or biblical references are permissible subjects for comment during closing argument, especially when the biblical comments made by the prosecutor are in response to those made by the defense. Here, the prosecutor was responding to the biblical argument made by Wilcher's attorney. Issue 4: Challenge for cause Wilcher argues that his Sixth Amendment right to an impartial jury was violated when the court excused two potential jurors for cause because they expressed their opposition to the death penalty. Dismissal of potential jurors is permissible when a juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Here, there is no question that these two venire members were properly excused for cause. Issue 5: Venire Wilcher argues that one of the jurors impaneled in his resentencing trial was not honest during voir dire because in reality, she was predisposed to voting for the death penalty without following the court's instructions to consider mitigating circumstances. To support this contention, he offers an unsworn statement. An unsworn statement of a juror is insufficient evidence to support Wilcher's allegation. In addition, the statement of the juror illustrates her willingness to follow the written instructions and weigh aggravating and mitigating factors. Issue 6: Dictionary Wilcher argues that he did not receive a fair trial before an impartial jury, because a dictionary was sent into the jury room. He relies on an unsworn statement which is insufficient evidence to support his allegation. Nothing indicates that the jury did, in fact, receive a dictionary. Issue 7: Sentencing instructions Wilcher argues that the sentencing instructions submitted by the state conjunctively instructed the jury that the death penalty was demanded because Wilcher had already been convicted of capital murder. It appears that Wilcher is under the impression that he had a right to relitigate his guilt of the underlying capital murder in front of the jury during his resentencing. However, guilt of a capital murder is res judicata during the sentencing phase and may not be relitigated. Issue 8: Cruel and inhuman treatment Wilcher argues that he has been subjected to cruel and inhuman treatment because he has been kept in maximum confinement on Mississippi's Death Row under conditions including lock-down and isolation for at least 23 hours out of the day, and because he has been subjected to numerous execution dates during those 19-20 years. There is no law of the United States or of this State to support Wilcher's claim. |
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