Givens v. State


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Docket Number: 2006-KA-00203-SCT
Linked Case(s): 2006-CT-00203-SCT ; 2006-KA-00203-SCT
Supreme Court: Opinion Link
Opinion Date: 08-30-2007
Opinion Author: Carlson, J.
Holding: Affirmed
Additional Case Information: Topic: Death penalty post-conviction relief - Mental retardation - Ineffective assistance of counsel - Cruel and unusual punishment - Exculpatory evidence
Judge(s) Concurring: Smith, C.J., Waller and Diaz, P.JJ., Easley, Dickinson, Randolph and Lamar, JJ.
Concurs in Result Only: Graves, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Trial Court: Date of Trial Judgment: 06-08-2002
Appealed from: Humphreys County Circuit Court
Judge: Jannie M. Lewis
Disposition: Conviction of Murder and Sentence of Life Imprisonment in the Custody of the Mississippi Department of Corrections.
District Attorney: James H. Powell, III
Case Number: 5909
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Billy Givens




 OFFICE OF INDIGENT APPEALS BY: GEORGE T. HOLMES



  
  • Motion for Rehearing
    		•
    Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY  
    Synopsis provided by:

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    Topic: Death penalty post-conviction relief - Mental retardation - Ineffective assistance of counsel - Cruel and unusual punishment - Exculpatory evidence
    Summary of the Facts: Roger Thorson was convicted of capital murder and sentenced to death. On appeal, the Court remanded for a Batson hearing. The circuit court found no Batson violation, and Thorson appealed. The Court reversed Thorson’s conviction, finding that a juror had been improperly challenged solely for her religious affiliation, and ordered a new trial. Thorson was again found guilty of capital murder and sentenced to death by lethal injection. On appeal, his conviction and sentence were appealed. Thorson has now filed a Petition for Post-Conviction Relief.
    Summary of Opinion Analysis: Issue 1: Mental retardation Thorson argues that his execution would be unconstitutional, because he is mentally retarded. The State argues that Thorson should have argued his claim of mental retardation on direct appeal. Thorson could not have argued the Atkins case before the trial court. Thorson was convicted prior to Atkins. Because Thorson has met the requirements established by the Court in Chase, this matter is remanded for an Atkins hearing. Issue 2: Ineffective assistance of counsel Thorson argues that his trial counsel was ineffective for failing to develop and present evidence of mental retardation and other mitigating evidence during sentencing, for failing to prepare the defense expert, for not being prepared at trial, and for failing to present evidence concerning lack of a valid Miranda waiver. During the guilt phase, Thorson’s counsel did call Dr. Tate who testified that Thorson was “borderline retarded.” Thorson’s mother also testified about Thorson’s troubles with learning in school and childhood illnesses. Although Thorson argues that his counsel was ill-prepared to defend Thorson on DNA issues, the record shows that his counsel was prepared for cross-examination of the ReliaGene witness who performed the DNA testing. While Thorson faults counsel for not investigating physical evidence to identify the inconsistencies with his confession, the record is full of independent evidence that is consistent with and supports Thorson’s confession. Issue 3: Cruel and unusual punishment Thorson argues that execution by lethal injection constitutes cruel and unusual punishment. This is the first time Thorson has raised this issue, and it was capable of being raised on direct appeal. In addition, counsel for Thorson fails to submit any affidavit which legitimately questions the lethal injection protocol employed by the Mississippi Department of Corrections. Issue 4: Exculpatory evidence Thorson presents a list of items which he asserts may not have been provided by the State to the defense. The possibility that more data may lead to exculpatory information does not show that the State, at the time of trial, had evidence in its possession that was favorable to Thorson and that went undisclosed to the defense. The remaining claims are offered without specificity.


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