Bennett v. State


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Docket Number: 2003-DP-00765-SCT
Linked Case(s): 2003-DP-00765-SCT2003-DP-00765-SCT
Oral Argument: 03-28-2006
 

 

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Supreme Court: Opinion Link
Opinion Date: 05-11-2006
Opinion Author: Dickinson, J.
Holding: Affirmed

Additional Case Information: Topic: Death penalty direct appeal - Jury questionnaire - Guilty plea - Challenge for cause - Ineffective assistance of counsel - Rule of sequestration - Good character - M.R.E. 404(a)(1) - M.R.E. 405(a) - Autopsy photographs - Cross-examination - Circumstantial evidence instructions - Sufficiency of evidence - Constitutionality of section 97-3-19(2)(f) - Disproportionate sentence - Sufficiency of indictment - Mitigating factor - Heinous, atrocious or cruel aggravators - Limiting instruction
Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Graves and Randolph, JJ.
Non Participating Judge(s): Cobb, P.J. and Diaz, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECTAPPEAL

Trial Court: Date of Trial Judgment: 02-28-2003
Appealed from: Rankin County Circuit Court
Judge: William E. Chapman, III
Disposition: Appellant was convicted of capital murder and sentenced to of death by lethal injection.
District Attorney: David Byrd Clark
Case Number: 12699

  Party Name: Attorney Name:  
Appellant: Devin A. Bennett




J. Edward Rainer; Andre de Gruy; Stacy P. Ferraro



 

Appellee: State of Mississippi Marvin L. White, Jr.; Melanie K. Dotson; Jim Hood  

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Topic: Death penalty direct appeal - Jury questionnaire - Guilty plea - Challenge for cause - Ineffective assistance of counsel - Rule of sequestration - Good character - M.R.E. 404(a)(1) - M.R.E. 405(a) - Autopsy photographs - Cross-examination - Circumstantial evidence instructions - Sufficiency of evidence - Constitutionality of section 97-3-19(2)(f) - Disproportionate sentence - Sufficiency of indictment - Mitigating factor - Heinous, atrocious or cruel aggravators - Limiting instruction

Summary of the Facts: Devin Bennett was convicted of capital murder and sentenced to death. He appeals.

Summary of Opinion Analysis: Issue 1: Jury questionnaire Bennett argues that the trial judge abused his discretion in allowing the State to use a jury questionnaire when criminal defendants are not allowed to do the same. Bennett failed to raise this issue at trial and is thus barred from doing so on appeal. Bennett has presented no authority showing defendants are absolutely prohibited from issuing a jury questionnaire. This lack of authority combined with his inability to show prejudice causes Bennett’s claim to fail on the merits. In fact, Bennett never made such a request. Because Bennett incorrectly asserts that he was absolutely prohibited from requesting a questionnaire under Mississippi law, this issue is without merit. Issue 2: Guilty plea Bennett argues that the court erred in refusing to accept his plea to the lesser included offense of heat of passion manslaughter, because the court’s refusal was based on the erroneous belief that Bennett was required to admit each fact that the State proffered. A criminal defendant has no absolute right to have his guilty plea accepted, and the court may decline to accept such plea in the exercise of sound judicial discretion. Bennett did not provide a factual basis for his plea. Bennett refused to admit he inflicted the blunt force head trauma that caused his son’s death. Considering Bennett’s limited admission together with the pre-trial documentary evidence, the court properly determined that Bennett had failed to admit sufficient facts to justify heat of passion manslaughter. Issue 3: Challenge for cause Bennett argues that a juror was improperly struck for cause. The juror stated that she would not impose the death penalty unless she was convinced of Bennett’s guilt, and she would require more than beyond a reasonable doubt. Bennett failed to object to the State’s challenge of the juror and is therefore barred from doing so now on appeal. In addition, the juror’s answers reflected inconsistency, and although she agreed to follow the law, her agreement was belied by statements that indicated she could not do so. Issue 4: Ineffective assistance of counsel Bennett argues that his trial counsel was ineffective for failing to use available peremptory strikes on the last three jurors seated, each of whom Bennett says expressed views on the death penalty that rendered them unfit to serve on the jury. Counsel’s decision to use or forego peremptory strikes falls within the discretion of planning and developing a trial strategy. Bennett’s challenge of his counsel’s decision not to strike the three jurors includes no showing that these jurors were not fair and impartial. Based on the record, each of these jurors appears to have taken their job seriously, stated with certainty that they could be fair and impartial, and resolved any questions concerning their opinions of the death penalty. Furthermore, defense counsel was clearly diligent and thorough throughout voir dire. Issue 5: Rule of sequestration Bennett argues that the court improperly allowed the jurors to individually attend the movies during free time after the trial had begun and that such action violated the rule of sequestration. The record does not indicate whether the jurors attended a movie during their free time, but merely includes the judge’s comments that, seeing no objection from either counsel, he would allow the jurors to go to the movies under certain conditions. The record does not indicate whether any jurors actually attended a movie. Because Bennett’s direct appeal is confined to the scope of the record, Bennett has failed to meet his burden of including all necessary items for appeal in the record itself. Issue 6: Good character During the trial, the State presented a Motion in Limine to prevent Bennett’s witness from testifying that Bennett was a loving father who would not have hurt his son. Bennett argues that the court erred in granting the State’s motion. The witness’s proffered testimony amounted to proof of specific instances of good character, and it was properly excluded under M.R.E. 404(a)(1) which prohibits the accused from offering evidence of his good character to prove he acted in a certain way during the period in question. Under M.R.E. 405(a), a party is limited to proof of character on direct examination through testimony as to reputation or opinion only. Issue 7: Autopsy photographs Bennett argues that autopsy photos of the victim were admitted only to inflame the jurors. Photographs that aid in describing the circumstances of the killing, the location of the body and cause of death, or that supplement or clarify a witness’s testimony have evidentiary value and are admissible before a jury. Here, the pictures assisted the experts in establishing the cause of death, that is, whether the victim died as a result of the shaking or trauma to the head from a fall. When compared to photographs found admissible in other cases, the photographs in this case are not overly gruesome or shocking. Issue 8: Cross-examination Bennett argues that the court erred in allowing the State to ask his expert why she left the coroner’s office in Mississippi, because her reasons for leaving in no way reflect on her credibility or qualifications and are completely unrelated to the facts of the case. Cross examination may proceed into the collateral circumstances surrounding, or in any way affecting, the transaction to the full extent that they have relevant connection by way of testing the memory, accuracy, sincerity, interest, or bias of the witness. The State’s questioning of the expert was entirely proper. Bias, prejudice and credibility are always in issue, and the State’s questions were proper attempts to inquire into the expert’s personal feelings about Dr. Hayne and her forthrightness in the reasons for leaving her employment. Issue 9: Circumstantial evidence instructions Bennett argues that the court erred in denying two circumstantial evidence instructions. According to Bennett, because he never admitted any element of the offense charged, the case was wholly circumstantial and the jury should have been instructed as such. Circumstantial evidence cases lack direct evidence, and they include cases where the state is without a confession and wholly without eyewitnesses to the gravamen of the offense charged. A defendant’s admission to a significant element of the offense obviates the need for a circumstantial evidence instruction. Bennett admitted to the police that he shook his son and that he could have kicked his son off the bed. Bennett’s statements constitute an admission, and this admission obviates the need for a circumstantial instruction. Issue 10: Sufficiency of evidence Bennett argues that because his expert witness testified that his son’s death was accidental and the State’s expert agreed that this diagnosis was possible, the evidence was insufficient for a jury to find him guilty of capital murder. The State met its burden of proving Bennett’s guilt by presenting a combination of expert medical testimony, scientific evidence, witness evidence, and a confession from Bennett. While Bennett claims the State’s witnesses agreed that defense expert’s conclusions were possible, the State’s witnesses actually stated that “in the realm of impossibility, anything is possible.” The State also met its burden by highlighting the numerous inconsistencies in Bennett’s stories. The jury had the opportunity to resolve this conflicting testimony, and it is certainly reasonable to conclude that a jury could find the State’s evidence more credible. Issue 11: Constitutionality of section 97-3-19(2)(f) Bennett argues that section 97-3-19(2)(f) is unconstitutional because it allows him to be found guilty of capital murder without any proof of criminal intent to murder Brandon and without any proof of criminal intent to commit felonious child abuse, the underlying felony in this case. Because Bennett failed to raise this issue at trial, he is procedurally barred from doing so now. Notwithstanding the procedural bar, the statute has passed constitutional muster in numerous previous cases. Issue 12: Disproportionate sentence Bennett argues that the death sentence in his case is a disproportionate and excessive punishment for the offense committed. Bennett cites no cases which support his claim that his death sentence for murdering a ten-week old child is excessive or disproportionate. The Court has previously upheld the death penalty in cases involving capital murder during the commission of felonious child abuse. Issue 13: Sufficiency of indictment Bennett argues that the indictment in this case failed to include all necessary elements to impose a death sentence. Because Bennett failed to raise this issue at trial, he is procedurally barred from doing so on appeal. In addition, he incorrectly implies that the maximum penalty for capital murder in Mississippi is life imprisonment. Once Bennett was indicted for capital murder, he was immediately eligible upon conviction for the maximum sentence of death. His argument that the statutory aggravators and mens rea element must be specifically pleaded in the charging indictment of state court case also fails. Mississippi law does not require the aggravating circumstances to be set forth in the indictment. Rather, being indicted for capital murder puts a defendant on notice of the aggravating circumstances that may be used against him. Issue 14: Mitigating factor Bennett argues that the State’s offer to plea bargain is admissible at sentencing as evidence of mitigation, and the judge’s refusal to allow the introduction of this evidence requires reversal. Bennett, however, has failed to cite to a single case holding that offers of plea bargains must be admitted at sentencing, or that failure to allow evidence of a plea bargain offer is an abuse of discretion by the trial court judge. In addition, Bennett’s plea offer is neither mitigation evidence of his character nor part of the circumstances of the crime for which Bennett was convicted. Issue 15: Heinous, atrocious or cruel aggravators Bennett argues that because the heinous, atrocious or cruel aggravator wholly subsumed the child abuse aggravator, the two should not have been submitted together. Bennett, however, failed to raise this issue at trial. In addition, felonious child abuse and the heinous, atrocious or cruel aggravators have distinct elements, and Bennett has submitted no law prohibiting the two aggravators from being used together. The evidence submitted by the State showed that Bennett’s son was violently shaken; that his head was struck causing blunt force trauma; and that Bennett allowed him to suffer for a number of hours before taking him to the hospital. Such acts constituted both felonious child abuse and heinous, atrocious, or cruel acts. Issue 16: Limiting instruction Bennett argues that the heinous, atrocious or cruel aggravator is unconstitutionally vague and should be revised or eliminated. Because Bennett failed to raise this issue at trial, he is procedurally barred from doing so on appeal. In addition, the Supreme Court has consistently upheld the exact narrowing instruction on the heinous, atrocious and cruel aggravator that was allowed in Bennett’s case.


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