Russell v. State
| Docket Number: | 97-DR-00046-SCT Linked Case(s): 1997-DR-00046-SCT ; 1997-DR-00046-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-19-2003 Opinion Author: Waller, J. Holding: POST-CONVICTION RELIEF GRANTED ON THE SOLE ISSUE OF DETERMINATION OF MENTAL RETARDATION; POST-CONVICTION RELIEF OTHERWISE DENIED |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Juror misconduct - Discovery violations - Impeachment - Ineffective assistance of counsel - Attorney-client privilege - Manner of execution - Mental retardation Judge(s) Concurring: Pittman, C.J., Cobb, Carlson and Graves, JJ. Non Participating Judge(s): McRae, P.J. Concur in Part, Dissent in Part 1: Smith, P.J. Concur in Part, Dissent in Part Joined By 1: Easley, J. Concurs in Result Only: Diaz, J. Procedural History: Jury Trial/PCR Nature of the Case: CRIMINAL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 03-04-1993 Appealed from: Sunflower County Circuit Court Judge: Gray Evans Disposition: Appellant was convicted of capital murder and sentenced to death. District Attorney: Frank Carlton Case Number: 10130 |
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| Note: | The Motion for Post-Conviction Relief filed on behalf of Russell in 1997 is denied. The Letter Request to Stop Ongoing Death Penalty Appeals filed pro se by Russell is dismissed as moot. The Notice Regarding State's Motion filed by post-conviction counsel is dismissed as moot. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Willie C. Russell |
CLIVE A. STAFFORD SMITH |
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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 relief - Juror misconduct - Discovery violations - Impeachment - Ineffective assistance of counsel - Attorney-client privilege - Manner of execution - Mental retardation |
| Summary of the Facts: | Willie Russell was convicted of capital murder and sentenced to death. Russell has now filed an Amended Petition for Post-Conviction Relief. |
| Summary of Opinion Analysis: | Issue 1: Juror misconduct Russell argues that jurors failed to accurately and honestly answer critical questions during voir dire. When an allegation is made that a juror did not truthfully answer a question, the court should consider whether the question was relevant to the voir dire examination, whether the question was unambiguous, and whether the juror had substantial knowledge of the information sought to be elicited. With regard to one juror Russell complains of, the voir dire question asked was, "Have any of you ever worked as an employee of a Law Enforcement Office Agency, whether it is State, Federal, prison or jail system, or some kind of correctional institute?" The dispute over whether this juror worked as a guard is irrelevant, as he worked in some capacity, and that is all the question asked. With regard to Russell’s other complaints, the remarks were taken from unsworn statements. Issue 2: Discovery violations Russell generally argues that the State withheld exculpatory materials from Russell during discovery. While the State has the duty to preserve evidence, that duty is limited to the evidence which might be expected to play a significant role in the suspect's defense. Based on what Russell has supplied, the inmate statements are not particularly significant, but, if they were, a better source of comparable evidence has always been available, namely Russell. With regard to other statements, Russell has failed to specify which statements, and made no attempt to identify the officers who made them. Russell also uses unsworn statements to support his argument. Issue 3: Impeachment Russell argues that defense counsel was ineffective because counsel should have impeached a witness with a letter. Even if the letter says what Russell says it does, it amounts to meager impeachment. Russell also argues that defense counsel should have attempted to impeach the witness with his internal affairs interview. Actually, defense counsel did ask the witness at trial about the internal affairs interview. Russell also argues that the witness told a pack of lies at Russell's trial, but his authority is unsworn statements made by the witness. Russell also argues that defense counsel was ineffective for failure to determine the whereabouts of the witness prior to trial. There is no way to determine now why defense counsel did not find the witness. In addition, there is nothing to suggest that the State's failure to find him was part of some deliberate plot. Issue 4: Attorney-client privilege Russell argues that defense counsel violated Russell's attorney-client privilege when he agreed to have an MDOC security officer present with Russell and defense counsel after Russell took an overdose of pills. There is no authority supporting a presumption of a breach or a violation of Russell's right. Issue 5: Ineffective assistance of counsel - guilt phase Russell argues that he received ineffective assistance of counselor during the guilt phase. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Russell argues that there is a presumption of prejudice because both defense counsel were trying their first capital case. The charge of ineffective assistance of counsel must be tested against the Strickland standard. Russell argues that his defense counsel should have secured adequate funds to investigate his case. Absent more detailed evidence as to what was available in the district in question versus what defense counsel actually requested or got in expert funds, this issue is without merit. Russell also argues that defense counsel was ineffective for failure to object to the State's instruction on self-defense. Although the instruction was later determined by the Supreme Court to be an incomplete instruction on the law of self-defense, at the time of Russell's trial it was not improper and therefore defense counsel could not be seen as ineffective for failure to object. Russell argues that defense counsel should have investigated the possibility that the stabbing of the officer was an accident. Defense counsel may have investigated this defense and found little or nothing to support it. Russell argues that defense counsel failed to investigate certain unnamed witnesses, and review materials that would have shown the manner in which the prison operated. However, the manner in which the prison operated was made plain at trial. Russell states that he was incompetent and defense counsel was ineffective for failure to properly deal with this issue. In light of the record made of events, there is no way to say defense counsel was ineffective for failing to demand some additional competency examination during the trial. Russell’s argument that "time after time" on voir dire defense counsel failed to make sure that the appeal record was clear as to the juror being questioned is too speculative. Russell argues that defense counsel was ineffective in discovery for failure to follow up the State's failure to provide all of the inmate Internal Affairs interviews. However, defense counsel made more than a satisfactory effort to obtain the evidence in question. Russell alleges that defense counsel was ineffective for failure to move to have venue changed. Under the facts of his case, Russell would have had a difficult task in any county. Russell argues that defense counsel failed to do something about the "massive security presence" in the courtroom. From the limited record, there is no way to determine what size the security presence at the trial was, but it would be surprising if it was not large. Russell argues that defense counsel failed to ask the kinds of questions necessary to elicit the necessary information from the jurors, but does not specify. Russell argues that jurors were not sufficiently questioned on whether they would automatically vote to sentence Russell to death in any case in which he was convicted of capital murder. However, defense counsel asked this question of each panel except one. Russell argues that defense counsel was ineffective for failure to raise a timely objection to the jury based on Batson. A record of the State's reasons for its strikes was eventually made, and the issue was raised on direct appeal and reviewed by the Court. Russell argues that defense counsel was ineffective for failing to make an opening statement. Failure to make an opening statement certainly would be one factor to consider in make an determination of ineffectiveness, but by itself is not determinative. Russell argues that defense counsel was ineffective for failure to prevent comments on the prior record of the accused. However, the record shows that defense counsel did object, and the court directed the State not to pursue this line of questioning, and instructed the jury to disregard the testimony. Russell argues that defense counsel made a brief and ineffective closing argument at the guilt phase of the trial. However, defense counsel's closing argument spans eight pages. Russell argues that defense counsel was ineffective for submitting an acquit-first instruction. Such an instruction is not prohibited by the law of this State. Issue 6: Ineffective assistance of counsel - penalty phase Russell argues about the failure to introduce gang material. However, this evidence was not particularly relevant. Russell also argues that inadequate voir dire led to juror misconduct. Again, he relies on unsworn statements. Russell argues that defense counsel failed to prevent the State from exercising a peremptory challenge in a racially discriminatory manner. Since this is a peremptory challenge, it is not clear what defense counsel was supposed to have done to try and prevent this, except object. Russell argues that defense counsel failed to emphasize certain factors in mitigation. Most of his claims are not supported by the record. Much of what Russell argues should have been presented was presented, and is repetitive here. Russell also argues that trial counsel failed to investigate his life and background. However, counsel did try to meet with family members. Russell argues that the manner in which defense counsel asked for funds in part to obtain mental health experts was deficient. Russell does not state how being evaluated before the "state's" doctors got to him would be any great advantage, as they would have eventually examined him anyway. Russell argues that defense counsel should have brought out more evidence that other members of Russell's family have mental problems. If Russell had presented this evidence, the State could have pointed to other members of Russell's family that are not mentally retarded. Russell argues that defense counsel should have challenged the constitutionality of his prior convictions. The proper means for attacking prior convictions is by separate post-conviction actions in the respective court in which they occurred, and not in the court in which they are being used as aggravating factors or for enhancement purposes. Issue 7: Manner of execution Russell argues that the manner of execution in this case is unconstitutional. Lethal injection has been found to be constitutional. Russell also argues that it would be illegal and/or unconstitutional to execute him at this point because of his long stay on death row and the conditions there. This argument was considered and rejected in Jordan v. State, 786 So. 2d 987 (Miss. 2001). Issue 8: Mental retardation The U.S. Supreme Court recently decided, in Atkins v. Virginia, 536 U.S. 304 (2002), that execution of mentally retarded offenders amounted to cruel and unusual punishment and was therefore prohibited by the Eighth Amendment. Russell argues that he has met his burden of production on the issue of mental retardation. Not being mentally retarded is not an aggravating factor necessary for imposition of the death penalty. The State argues that Russell has not made a sufficient showing of retardation to be allowed to proceed further in the trial court. One doctor testified that Russell was mildly mentally retarded, and another testified that he was not retarded. Russell should be granted leave to proceed in the trial court on the sole issue of whether he is mentally retarded such that he may not be executed under Atkins v. Virginia. The standard or definition of mental retardation shall be that enunciated by the Supreme Court in Atkins, especially the American Psychiatric Association's definition of mental retardation. The Minnesota Multiphasic Personality Inventory-II is to be administered since its associated validity scales make the test best suited to detect malingering. |
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