Simon v. State


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Docket Number: 98-DR-00517-SCT
Linked Case(s): 98-DR-00517-SCT

Supreme Court: Opinion Link
Opinion Date: 09-18-2003
Opinion Author: Pittman, C.J.
Holding: PETITIONS FOR LEAVE TO SEEK POSTCONVICTION RELIEF DENIED

Additional Case Information: Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Exculpatory evidence - Double jeopardy
Judge(s) Concurring: McRae and Smith, P.JJ., Waller, Cobb, Easley, Carlson and Graves, JJ.
Non Participating Judge(s): Diaz, J.
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 10-13-1990
Appealed from: Quitman County Circuit Court
Judge: Thomas Pearson
Disposition: Appellant was convicted of three counts of capital murder and sentenced to death on each count.
District Attorney: Laurence Y. Mellen
Case Number: 5114

Note: Simon's Application for Leave to Proceed in the Trial Court on Petition for Post-Conviction Relief, denied. Appellant's Application for Leave to File Motion to Vacate Conviction and/or Death Sentences, denied.

  Party Name: Attorney Name:  
Appellant: Robert Simon, Jr.




T.H. FREELAND, IV



 

Appellee: State of Mississippi OFFICE OF ATTORNEY GENERAL BY: MARVIN L. WHITE, JR.  

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Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Exculpatory evidence - Double jeopardy

Summary of the Facts: Robert Simon, Jr. was convicted of three counts of capital murder and sentenced to death on each count. The Supreme Court affirmed the convictions on direct appeal. Simon filed a petition for post-conviction relief.

Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Simon argues that his counsel ineffectively investigated and failed to put before the jury mitigating evidence which might have resulted in a life sentence. Specifically, he claims that his psychological expert did not develop meaningful mitigation evidence due to time constraints and a conflict of interest, and his attorney's investigation into his background was deficient because it did not reveal serious abuse at the hands of his father. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. A defendant is not entitled to the effective assistance of an expert witness. In addition, Simon has failed to show in the record and in his affidavits that his counsel knew or had reason to know of his past abuse. Simon has failed to show that it is sufficiently likely that he received ineffective assistance of counsel at the sentencing phase of his trial. Simon also argues that his counsel was deficient for failing to corroborate his testimony at the suppression hearing with the testimony of his mother, wife, and brother, that he was beaten and his confession was coerced by police. The source of their information as to who was responsible for his visible injuries was Simon himself. Therefore, the testimony of his family members would have been repetitive in light of Simon's testimony. Simon also argues his counsel ineffectively assisted him because counsel failed to object that Simon was not brought before a judge within a reasonable time. Simon's counsel did not render deficient assistance by failing to specifically object to the length of the delay between his arrest and initial appearance. Counsel was capable of weighing the merits of the issue of the delay and judging its lack of evidentiary support. Simon also argues that during trial his counsel failed to adequately challenge the State's evidence in three areas. However, the record does not support any of these alleged errors. Simon also argues his counsel gave him ineffective assistance during voir dire because certain jurors who had been exposed to pretrial publicity were not struck "for cause." The sum of Simon's allegation is that counsel did not raise the point, during his motions to strike jurors "for cause" due to exposure to pretrial publicity, that the State had conceded that such jurors should be removed "for cause" after venue was transferred to DeSoto County. Because the jurors in question indicated that they could put aside any conclusions they had formed from their exposure to the publicity and be fair and impartial, they failed to meet the standard required to dismiss them "for cause." Simon's counsel obviously found these jurors to be less offensive to his cause since he did not strike them peremptorily after moving to strike them "for cause", although Simon had not used all his peremptory strikes. Simon also argues that his counsel stopped individually questioning members of the venire about how they felt about the death penalty, yet did not object when the trial judge let the State rehabilitate certain members of the venire. It was not deficient assistance for Simon's counsel to have failed to object to the court's preemption of his questioning of these members of the venire with a line of questioning concerning the death penalty that had been explored in depth before. He also did not render deficient assistance when he failed to bring up the fact that the court cut off his attempts to question certain jurors about the death penalty during the State's motions to strike jurors "for cause." Again, these jurors did not falter in their stated opposition to imposing the death penalty. Finally, Simon highlights various statements made by the trial judge and District Attorney that he claims to be inaccurate and prejudicial, and he alleges his counsel provided ineffective assistance for failing to object when those statements were made to the venire. One such statement was when the District Attorney told the venire that it would not be "blood thirsty" if the trial jury imposed the death penalty. This statement is not proper during jury voir dire. However, these were statements made to a large group of potential trial jurors, only a few of whom would later be sworn in. The decision not to object at this early stage is a product of trial strategy. Simon argues that his counsel failed to object when the District Attorney allegedly "minimized" the State's burden of proof. For instance, the District Attorney likened the presumption to a block of ice which melts during trial until the State has met the burden of proving the defendant guilty. The District Attorney's use of the block of ice metaphor during voir dire was not objectionable because the whole of his question accurately states the law. Issue 2: Exculpatory evidence Simon argues that the State violated the disclosure rule pertaining to exculpatory evidence, because it failed to provide him with a copy of the transcript of an officer’s testimony from another trial. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. From the record, it is clear that Simon either possessed the trial transcript of the first trial or any of the many hearings jointly held between the two. Under these circumstances, it is doubtful that a violation actually occurred. In addition, Simon cannot show this supposed violation to have affected the outcome of his case since his counsel would have done exactly the same thing as he did. Issue 3: Double jeopardy Simon argues that his death sentence for the three murders is barred by the double jeopardy clause because he was sentenced to life imprisonment for another murder. Here, Simon was being tried for separate and distinct murders. Mississippi law concerning multiple murders committed contemporaneously treats each act as a separate offense.


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