Conway v. State
| Docket Number: | 2009-CA-00886-COA Linked Case(s): 2009-CA-00886-COA ; 2009-CT-00886-SCT ; 2009-CT-00886-SCT |
|
| Court of Appeals: |
Opinion Link Opinion Date: 06-01-2010 Opinion Author: Roberts, J. Holding: Affirmed. |
|
| Additional Case Information: |
Topic: Post-conviction relief - Ineffective assistance of counsel - Denial of fair trial - M.R.E. 615 - Due process - M.R.A.P. 17(a) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
|
| Trial Court: |
Date of Trial Judgment: 04-30-2009 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: CI07-0211 |
|
| Consolidated: Consolidated with 2003-CT-02807-COA Derek Brandon Conway v. State of Mississippi; Forrest Circuit Court; LC Case #: 03-235CR; Ruling Date: 10/14/2003; Ruling Judge: Robert Helfrich | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Derek Brandon Conway |
EDWIN LLOYD PITTMAN |
|
|
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY | ||
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. |
|
| Topic: | Post-conviction relief - Ineffective assistance of counsel - Denial of fair trial - M.R.E. 615 - Due process - M.R.A.P. 17(a) |
| Summary of the Facts: | Derek Conway was convicted of murder, and his conviction was affirmed on appeal. Conway received leave from the supreme court to file his motion for post-conviction relief in the trial court. The trial court denied his motion, and Conway appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Conway argues that he was denied his Sixth Amendment right to effective assistance of counsel, because he failed to adequately prepare for Conway’s trial, failed to renew his motion to exclude evidence provided by the State, failed to move for a mistrial after learning that a juror had failed to inform the court that she knew Conway’s mother, and failed to object to the qualifications of the State’s expert witness. Conway has failed to show prejudice from his trial counsel’s alleged lack of preparation. With regard to the exclusion of evidence, even if Conway could show that his trial counsel was deficient in failing to renew his motion for a continuance, a conclusion the record does not support, Conway cannot show that he suffered any prejudice as a result as the admission of the videotape was harmless error. With regard to the juror, Conway’s trial counsel’s failure to object to a relationship that was not disclosed and was not brought to his attention can hardly be called deficient performance. With regard to the expert witness, Conway offers nothing in the way of evidence or other support showing that an objection would have been justified, let alone successful. Conway’s counsel during his direct appeal was different from his trial counsel. Conway’s appellate counsel chose not to file a motion for rehearing after the decision was rendered on appeal. Conway argues that his appellate counsel’s failure to file post-appeal motions amounts to ineffective assistance of counsel. As Conway has failed to show that there was an arguable basis upon which to file a motion for rehearing, he can neither demonstrate that his appellate counsel was deficient, nor that he suffered any prejudice as a result. Issue 2: Denial of fair trial Conway argues that he was denied a fair trial as a result of witness and juror misconduct. First, he claims that after the affirmance of his conviction, he discovered that some witnesses did not abide by M.R.E. 615. Second, Conway argues that a juror’s failure to respond during voir dire that she knew Conway’s mother was juror misconduct. As evidence of the alleged witness misconduct, Conway attached affidavits from four individuals generally stating that the witnesses for both sides were able to, and did, converse with each other during the trial. However, what is lacking from the affidavits is any mention of what was discussed, if it pertained to Conway’s trial, or any indication, other than Conway’s unsupported claim of prejudice, that there was any possibility that what the witnesses discussed affected the outcome of Conway’s trial, or they had anything to do with it whatsoever. With regard to the juror, there is no reasonable basis of prejudice. Not only was there was a vast amount of evidence supporting Conway’s guilt, but there is no evidence of animosity between the juror and Conway’s mother. Issue 3: Due process Conway argues that the supreme court erred by denying his Petition for Writ of Certiorari as he was denied his procedural due-process rights under federal and state law. However, under M.R.A.P. 17(a), there simply is no right to review on a writ of certiorari. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
