Spicer v. State
| Docket Number: | 2006-DR-00625-SCT Linked Case(s): 2006-DR-00625-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-08-2007 Opinion Author: LAMAR, J. Holding: PETITION FOR POST-CONVICTION RELIEF IS GRANTED IN PART AND DENIED IN PART |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - M.R.A.P. 22(c)(4)(ii) - Due process violations - M.R.E. 606(b) - Constitutionality of lethal injection - Mental retardation Judge(s) Concurring: Smith, C.J., Waller and Diaz, P.JJ., Carlson, Dickinson and Randolph, JJ. Dissenting Author : Easley, J. Concurs in Result Only: Graves, J. Procedural History: Jury Trial Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 05-01-2003 Appealed from: George County Circuit Court Judge: Dale Harkey Disposition: Fred Sanford Spicer, Jr., was found guilty of capital murder after a jury trial in George County, Mississippi. At the conclusion of Spicer’s sentencing hearing, the jury returned a Spicer uses the term “social history” in his p 1 etition. The affidavits in support of his claim tell of Spicer’s character and childhood history. Therefore, throughout our discussion in this opinion we will refer to the term “character” and “childhood history.” 2 sentence of death by lethal injection. The subsequently-filed Motion for New Trial or in the Alternative J.N.O.V. was denied, and Spicer appealed. District Attorney: Anthony N. Lawrence, III Case Number: 2002-10,000(3) |
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| Note: | Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief filed by attorneys for appellant is granted in part and denied in part. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Fred Sanford Spicer |
AMY L. VAN GELDER
CHRISTINA M. TCHEN
HOPE E. CALDER
DAVID PEHLKE
DAVID PROHOFSKY
MICHAEL ADELMAN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
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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 - Ineffective assistance of counsel - M.R.A.P. 22(c)(4)(ii) - Due process violations - M.R.E. 606(b) - Constitutionality of lethal injection - Mental retardation |
| Summary of the Facts: | Fred Spicer, Jr., was found guilty of capital murder and was sentenced to death by lethal injection. Spicer’s conviction and sentence were affirmed on appeal. Spicer has now filed a Petition for Post-Conviction Relief. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Spicer argues that his trial counsel did not conduct any investigation into mitigating evidence regarding his “social history” in preparation for the sentencing phase of his trial. Spicer contends that if his defense counsel had investigated, they would have uncovered at least fifteen substantial witnesses who could have and would have provided mitigating evidence concerning Spicer. Spicer has provided affidavits from these potential witnesses. The substance of these statements reveals many pieces of possible mitigating evidence. Spicer has raised minimally sufficient allegations to be entitled to a hearing concerning the effectiveness of his counsel during the penalty phase of his trial. Showing prejudice is a much harder task, and there is much information that the Court does not have before it. Therefore, Spicer should be granted leave to proceed in the trial court in an evidentiary hearing, limited to Spicer’s claim that his attorneys were ineffective for failing to investigate and present mitigating evidence of Spicer’s character and childhood history at the penalty phase of Spicer’s trial. Spicer argues that his attorneys were similarly ineffective in failing to present evidence of mental impairment as a mitigating factor at the penalty phase. Spicer’s counsel were effective in seeking a mental evaluation of Spicer, and even attempted to acquire additional testing for their client. Spicer argues that his attorneys did not consult with him prior to trial. Counsel did have a strategy in Spicer’s case, which indicates that counsel had consulted with Spicer prior to trial in formulating a defense. Also, Spicer was satisfied with the advice of counsel. Spicer argues that his attorneys failed to performed any factual investigation in preparation for trial. He argues that the attorneys’ affidavits amount to an admission from each of his trial counsel that they performed no investigation at all. M.R.A.P. 22©(4)(ii) requires Spicer’s trial and appellate counsel to make available their complete files relating to the conviction and sentence. It is a stretch to assume, let alone conclude, that Spicer’s counsel did not investigate the alleged crime based solely on their affidavits. Further, the transcript reveals that counsel were fully prepared for cross-examination of the State’s witnesses, and were able to question the witnesses about details not brought out on direct examination. Spicer argues that counsel were ineffective in not obtaining independent pathology and DNA experts to testify on Spicer’s behalf. Because Spicer’s expert did not refute Dr. Hayne’s testimony, Spicer has not made a showing that his counsel was deficient. In addition, an independent DNA expert would not have helped Spicer, because he claimed self-defense. Spicer argues that counsel were ineffective in failing to interview the prosecution’s witnesses prior to trial. Spicer provided no affidavits from the officers who testified for the State, stating that they were not contacted or questioned by the defense. Also, the record clearly shows that counsel was prepared for the witnesses during cross-examination. Spicer argues that his counsel failed to investigate sources to impeach two of the State’s witnesses. The record clearly shows that defense counsel brought the witnesses’ convictions to the jury’s attention. Spicer argues that his attorneys were ineffective in failing to object to the sufficiency of the indictment because the indictment did not include a statutory aggravating factor nor a mens rea element. The underlying substantive claim was considered on direct appeal and is now barred by the doctrine of res judicata. Spicer argues that his counsel were ineffective in failing to object to the removal of jurors. This was also considered on direct appeal. Spicer argues that his counsel were ineffective in failing to provide the jury with an opening statement. An attorney’s failure to provide an opening statement is a matter of trial strategy. Spicer argues that counsel was ineffective in bringing out favorable character evidence of the decedent during cross-examination of the victim’s mother. This was considered on direct appeal. Spicer also argues that counsel should have investigated ahead of time whether a convicted felon had received anything from the State in exchange for his testimony. Spicer cannot show that this question was anything more than trial strategy, especially when defense counsel effectively broached the subject again in closing arguments and told the jury that the witness was a convict and questioned his truthfulness. Spicer argues that his counsel bolstered the testimony of the prosecution’s witnesses by asking them to reiterate that the State’s Exhibit 4, the sword, belonged to the victim. However, defense counsel was asking these question to determine why the victim had so many swords and daggers and how these witness came to know that the swords and knives belonged to the victim. Spicer argues that counsel should have questioned Dr. Hayne about the number of autopsies he had performed and impeached him for misstating the victim’s age. Spicer offers no proof that Dr. Hayne was not truthful. With regard to the victim’s age, Spicer assumes that this otherwise irrelevant fact would somehow impeach Dr. Hayne as a witness. Spicer argues that counsel was ineffective in agreeing with Dr. Hayne that the victim’s wounds were defensive in nature. Defense counsel clearly was trying to point out that the victim may have had injuries that were consistent with Spicer’s theory of the case. Spicer argues that defense counsel was ineffective in going over blood spatters in the victim’s house with an officer. This line of questioning can easily be seen as trial strategy considering defense counsel’s closing argument regarding blood spatter. Spicer argues that counsel were ineffective in failing to object to the introduction of a photograph of the victim before his death. Because the underlying issue was held to have no merit on direct appeal, Spicer cannot show prejudice. Spicer argues that counsel was ineffective for failing to object to the introduction of evidence of flight. The substantive issue underlying this claim was fully discussed on direct appeal. Spicer argues that his counsel were ineffective because Spicer exercised his right to remain silent. Spicer made the decision not to testify on his own behalf during the guilt phase, which was his right. Spicer argues that counsel was ineffective for not having any other witnesses, but does not suggest who the other witnesses should have been or to what they would have testified. Spicer faults counsel for failing to obtain a lesser-included-offense instruction. However, trial counsel did present the trial court with two proposed jury instructions on a lesser included offense, and they were rejected. Spicer argues that trial counsel were ineffective in failing to object to a jury instruction that, as he argues, improperly relieved the State of its burden of proving that Spicer had the intent to rob the victim. This underlying substantive issue was raised on direct appeal. Spicer argues that his attorneys were ineffective in failing to object to the submission of the pecuniary gain aggravating factor. The underlying, substantive issue was raised on direct appeal. Spicer argues that his counsel should have objected to the prosecutor’s send a message argument during closing arguments of the guilt phase. This substantive claim was considered on direct appeal. Spicer argues that his trial counsel failed to object to numerous remarks, which he alleges were improper, made by the prosecution during closing arguments at the sentencing phase of the trial. The one issue raised by Spicer which was not addressed on direct appeal deals with trial counsel’s failure to object to the prosecutor’s comment that, if the jury did not vote for death, Spicer would have to be supported in jail “with our tax dollars.” The decision to make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim. Issue 2: Due process violations Spicer argues that he was denied fundamental constitutional rights on the ground that he was brought before the jury venire in shackles. This very issue was discussed and rejected on Spicer’s direct appeal. Spicer argues that during juror interviews, it was discovered that at least four jurors considered his silence at trial as indicative of guilt, despite the trial court’s instruction that the jury must not consider the fact that Spicer did not testify as evidence of his guilt. Even if one of the four jurors had provided his or her own affidavit, M.R.E. 606(b) provides that it would not have been admissible. Issue 3: Constitutionality of lethal injection Spicer argues that execution by lethal injection constitutes cruel and unusual punishment. This is the first time Spicer has raised this issue, and it was capable of being raised on direct appeal. The issue is now procedurally barred from further consideration on collateral appeal. Spicer also argues that his attorneys were ineffective in failing to argue in the trial court or on direct appeal that Mississippi’s method of execution by lethal injection is unconstitutional. To date, there has been no successful challenge to Mississippi’s method of execution by lethal injection. Therefore, Spicer cannot show that the outcome would have been different. Spicer argues that the use of pavulon, the second drug in Mississippi’s lethal injection protocol, which is designed to paralyze the condemned, amounts to an unconstitutional prior restraint of speech. This issue was capable of being raised at trial or on direct appeal and now is procedurally barred from further consideration on collateral appeal. In addition, Spicer has provided no sworn testimony or affidavit to support his contention that the lethal-injection protocol will not be effective on him or that it will otherwise be improperly administered in his case. Issue 4: Mental retardation Spicer argues that he is mentally retarded and therefore constitutionally protected from execution. The casenotes from the Mississippi State Hospital assessment of Spicer for the purpose of determining whether Spicer was competent to stand trial and assist in his defense, opined that Spicer was malingering. The affidavit provided by Spicer does not discuss whether Spicer was malingering and does not fulfill the requirements of Chase. The affidavit did not state that Spicer meets the definition of mentally retarded as defined by the American Association on Mental Retardation or the American Psychiatric Association nor discuss Spicer’s adaptive skills at all. |
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