Scott v. State
| Docket Number: | 2004-DR-01290-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-05-2006 Opinion Author: Easley, 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 - Mental retardation - Conflict of interest - Juvenile offender - Ineffective assistance of counsel - Improper aggravating circumstance - Verdict - Jury instructions - Challenges for cause - Improper Miranda waiver - Prosecution error - Constitutionality of death penalty Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson, Dickinson and Randolph, JJ. Dissenting Author : Diaz and Graves, JJ. Procedural History: Jury Trial; PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 10-23-1998 Appealed from: Bolivar County Circuit Court Judge: Kenneth L. Thomas Disposition: Scott was convicted of capital murder, robbery, and aggravated assault. Scott was convicted of both charges and was sentenced to death for the capital murder and ten years on the aggravated assault charge. District Attorney: LAURENCE Y. MELLEN Case Number: 8338 |
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| Note: | Motion for Leave to Proceed in Trial Court with an Application for Post Conviction Relief filed by petitioner is granted in part and denied in part. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Kevin Scott |
JAMES W. CRAIG, JEANE A. THOMAS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MARVIN L. WHITE, JR. |
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| Topic: | Death penalty post-conviction relief - Mental retardation - Conflict of interest - Juvenile offender - Ineffective assistance of counsel - Improper aggravating circumstance - Verdict - Jury instructions - Challenges for cause - Improper Miranda waiver - Prosecution error - Constitutionality of death penalty |
| Summary of the Facts: | Kevin Scott was convicted of capital murder with the underlying felony of robbery and of aggravated assault. He was sentenced to death for the capital murder and ten years on the aggravated assault charge. The Supreme Court affirmed the conviction and sentence on direct appeal. Scott now files his application for post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Mental retardation Scott argues that he is mentally retarded, and therefore, he should not be executed pursuant to Atkins v. Virginia, 536 U.S. 30 (2002). Scott includes two affidavits by experts in his application on post-conviction relief which state that there is a reasonable basis to believe that upon further testing Scott would be found to be mentally retarded. One of the experts opined that Scott is mentally retarded as that term is defined by the American Association of Mental Retardation and the Diagnostic and Statistical Manual, fourth edition. On direct appeal, the Court found that there was insufficient evidence in the record to remand for a hearing on the issue of mental retardation. The State disputes the findings and methods of the expert and points out that the expert failed to administer the Minnesota Multiphasic Personality Inventory II. Pursuant to Atkins and state case law, the Minnesota Multiphasic Personality Inventory II is required prior to an adjudication on a claim of mental retardation. Scott has provided the necessary information for a remand to the trial court for mental retardation hearing. However, prior to anadjudication on the mental retardation issue, Scott must obtain a Minnesota Multiphasic Personality Inventory II test. Issue 2: Conflict of interest Scott argues that an assistant district attorney’s participation in his prosecution was an impermissible conflict of interest where the criminal prosecution was substantially related to a prior hearing before an administrative law judge at the Social Security Administration in which the attorney, then working at North Mississippi Rural Legal Services, represented Scott. Scott argues the social security proceedings concerned his mental capacity, which was a central issue at his murder trial. The record reflects that Scott did not raise this issue on his direct appeal and is now procedurally barred. In addition, since the attorney’s prior representation is not newly discovered information, this issue is not proper for post conviction relief. Trial counsel knew of the attorney’s representation and chose not to file a motion to disqualify her. Issue 3: Juvenile offender Scott argues that at the time the murder was committed, he was six days past his eighteenth birthday and thus, his death sentence is unconstitutional pursuant to Roper v. Simmons, 543 U. S. 551 (2005). This claim is an extension of Scott’s argument that he is mentally retarded. Scott was undoubtedly over the age of eighteen at the time of his crimes; therefore, pursuant to Roper, the imposition of Scott’s death sentence is appropriate in this case. Issue 4: Ineffective assistance of counsel Scott argues that his trial attorney provided ineffective assistance of counsel on numerous occasions during the guilt and sentencing phases of his trial. He argues that the attorney failed to undertake any investigation whatsoever for more than one year after accepting the case, failed to hire a proper investigator, and only spoke to one witness, Scott’s mother, regarding possible mitigation. He argues that this prevented the jury from hearing evidence of Scott’s mental retardation. The record shows that the attorney presented evidence of Scott’s mental retardation to the jury in the sentencing phase of the trial. Further, Scott’s mother was also questioned regarding Scott’s mental retardation. Scott argues that trial counsel failed to adequately prepare his expert for trial by failing to provide relevant information for his evaluation of Scott. However, the expert was given full access to Scott for evaluation. Scott argues that the attorney’s failure to obtain evidence or records for mitigation resulted in his failure to discover the assistant district attorney’s conflict. As already discussed, there was no conflict. In addition, the attorney may have chosen to not pursue this action for trial strategy reasons. Scott argues that his attorney failed to adequately prepare a defense. The attorney worked on Scott’s trial more than 300 hours as evidenced in petition for payment submitted to the trial court. Scott argues that his counsel failed to inform the trial court of his mental retardation during a suppression hearing. However, the record shows that the attorney argued Scott’s alleged mental retardation to the trial court. Scott argues that his attorney should have elicited additional voir dire testimony as to two jurors who indicated that they would automatically vote for the death penalty and/or those jurors should have been stricken. The record shows that his attorney did question the two jurors about whether these jurors could consider mitigating evidence when considering whether to impose the death penalty. Scott argues that his attorney gave another attorney insufficient time to prepare the appellate brief. In Scott’s direct appeal, the Court considered over twenty-five well-briefed issues by both the defense and prosecution. There is no evidence that the attorney did not prepare an adequate brief. Issue 5: Improper aggravating circumstance Scott argues that application of the aggravating circumstance, that the capital offense was committed for the purpose of avoiding lawful arrest, was improper. This issue was raised on direct appeal and is therefore procedurally barred. Issue 6: Verdict Scott argues that it was error for the trial court to convey to the jury that they must reach an unanimous verdict after the jury deliberated and returned to inform the court that their verdict was not unanimous. This issue was raised on direct appeal and is now procedurally barred. Issue 7: Jury instructions All of the arguments raised by Scott with regard to jury instructions were raised on direct appeal and are now procedurally barred. Issue 8: Challenges for cause Scott argues that the trial court impermissibly struck a prospective juror who stated that she could conform her conduct with the law but failed to strike prospective jurors who stated that they could not conform their conduct to the law. This issue is procedurally barred for failure to raise the issue at trial or on direct appeal. In addition, there were follow up questions which indicated that these jurors could and would consider mitigating evidence in their sentencing decision. Therefore, the trial court was not required to strike these jurors. Issue 9: Improper Miranda waiver Scott argues that he invoked his right to counsel following the reading of his Miranda rights, but that his request for an attorney was ignored. The issue is procedurally barred for failure to raise it on direct appeal. Issue 10: Prosecution error Scott argues that the prosecutor made prejudicial comments in closing argument in which he made references to scripture and to “the Almighty.” Since this issue was raised on direct appeal, it is procedurally barred. Issue 11: Constitutionality of death penalty Scott argues that Mississippi’s death penalty scheme is unconstitutional because it operates on the basis of race. Since this issue was raised on direct appeal, it is procedurally barred. |
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