Davis v. State
| Docket Number: | 2006-CA-00719-COA Linked Case(s): 2006-CA-00719-COA2006-CT-00719-SCT |
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| Oral Argument: | 07-19-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-09-2007 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Ineffective assistance of counsel - Jury instruction Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Ishee, Roberts and Carlton, JJ. Procedural History: PCR; Dismissal Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 04-25-2006 Appealed from: YAZOO COUNTY CIRCUIT COURT Judge: Jannie M. Lewis Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED. Case Number: 2004-CI-142 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOSH KIRK DAVIS |
CYNTHIA ANN STEWART |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE | ||
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| Topic: | Post-conviction relief - Ineffective assistance of counsel - Jury instruction |
| Summary of the Facts: | Josh Davis was convicted of murder and sentenced to life in prison. His conviction was affirmed on appeal. Davis filed an “Application for Leave to File Motion for Post-Conviction Relief” which was granted. The court denied Davis’s motion for post-conviction relief. Davis appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Davis argues that he was not afforded effective assistance of counsel at trial based on trial counsel’s “half-hearted attempt” to suggest someone else fired the fatal shot that killed the victim and the failure to investigate and present the claim as a credible defense. While counsel is not required to exhaust every conceivable avenue of investigation, he or she must at least conduct sufficient investigation to make an informed evaluation about potential defenses. An affidavit by a physician (a former coroner) was included with Davis’ motion. It suggested that the fatal shot that killed the victim was from close range and, therefore, contradicted Davis’ testimony that he killed the victim. The physician reasoned that Davis fired into a dead body thereby rendering Davis not guilty of murder. It was reasonable for Davis’ attorney not to hire an expert witness to discover whether there was evidence of another shooter who might have killed the victim. Davis confessed to shooting the victim three times, which was consistent with evidence presented in the autopsy report and witnesses’ testimony. There is nothing in the record to suggest that Davis ever made a statement prior to trial to the effect that he only fired one shot. While the physician’s affidavit and testimony did set forth, with specificity, a claim for an alternate defense theory, the results were not sufficient to counter the evidence already presented. Thus, there was no error in the court’s ruling that there was insufficient evidence to show that the defense was prejudiced by counsel’s failure to investigate. Issue 2: Jury instruction Davis argues that a jury instruction failed to instruct the jury in any coherent fashion of what they must find in order to find Davis guilty as an aider and abettor. The jury instruction at issue is identical to the standard aiding and abetting instruction adopted by the Mississippi Supreme Court in Milano v. State, 790 So. 2d 179 (Miss. 2001). All the elements of the crime of aiding and abetting are clearly set forth in the instruction about which Davis complains. Therefore, the granting of the jury instruction was not error. |
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