Underwood v. State
| Docket Number: | 1999-DR-00302-SCT Linked Case(s): 1999-DR-00302-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 12-01-2005 Opinion Author: Smith, C.J. Holding: Leave to Seek Post-Conviction Relief, Denied. |
|
| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Proportionality review Judge(s) Concurring: Waller and Cobb, P.JJ., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
|
| Trial Court: |
Date of Trial Judgment: 05-25-1995 Appealed from: Madison County Circuit Court Judge: Samac Richardson Disposition: A jury convicted Underwood of capital murder and was sentenced to death. District Attorney: JOHN KITCHENS Case Number: 2246 |
|
| Note: | Petitioner's Petition for Post-Conviction Relief is denied. Amended and Restated Application for Leave to File Motion to Vacate Conviction and Sentence filed by Petitioner is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Justin Underwood |
JAMES CRAIG |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MARVIN L. WHITE, JR. |
|
|
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: | Death penalty post-conviction relief - Ineffective assistance of counsel - Proportionality review |
| Summary of the Facts: | Justin Underwood was convicted of capital murder and sentenced to death. He appealed, and his conviction and sentence were affirmed. Underwood has filed an application for leave to file motion to vacate conviction and sentence. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Underwood argues that his counsel did not preserve or raise any objection to the prosecution’s challenges which it exercised in order to eliminate African-American jurors from the venire. Underwood has not presented any evidence (such as jury lists or affidavits) to support this particular claim or given any explanation as to their absence from the pleading. Since Underwood has not shown specific facts or affidavits which establish that the prosecution’s peremptory challenges were racially motivated, there is no evidence that counsel’s lack of action constituted ineffective assistance of counsel. The circuit court determined that Underwood’s motion for psychiatric assistance should be granted and ordered that he be evaluated by a psychiatrist. However, no report was ever tendered to the court, and Underwood argues that his counsel’s failure to do so was ineffective assistance of counsel. However, Underwood has not shown specific facts or affidavits establishing that his trial counsel’s lack of action constituted ineffective assistance of counsel. Underwood argues that defense counsel rendered ineffective assistance by failing to object or move for mistrial during the prosecution’s closing arguments which brought attention to the fact he did not testify. The prosecution’s statement during closing arguments was merely a comment on the State’s witnesses, their testimony and the lack of defense put on by their opponent. There is no mention of Underwood at all. While Underwood acknowledges that defense counsel adequately challenged the written statement taken from him regarding the crime with which he was charged, he argues that counsel’s failure to have Underwood testify at the suppression hearings was evidence of ineffective assistance of counsel. There is nothing in the record to explain why Underwood’s counsel did not allow him to testify during the suppression hearing. The decision may have been a deliberate trial strategy. It is likely that defense counsel knew there would be credibility issues with Underwood’s testimony. Underwood argues that defense counsel should have submitted an instruction on the felony-manslaughter statute that was then in effect. A lesser-included offense instruction is appropriate only in those cases where a jury could find the defendant not guilty of the principal charge but guilty of a lesser offense. Taking Underwood’s confession as true would support a conviction of murder. Underwood argues that since defense counsel did not object to the jury instruction with respect to the “especially heinous, atrocious or cruel” aggravating circumstance, nor raise the issue on appeal, this constituted ineffective assistance of counsel. There was substantial evidence to support the sentence based on the aggravating factors, including the fact that the murder was committed during the course of a kidnapping. Thus, Underwood’s trial counsel was not deficient in failing to object to the instruction. Underwood argues that defense counsel did not conduct his own investigation into the theory that someone other than Underwood shot the victim. Underwood submitted no affidavits or facts to support his claim. Underwood argues that defense counsel did not conduct an investigation into the statutory mitigating circumstances under Mississippi law or investigate any non-statutory mitigating circumstances. Underwood has not given specific facts or affidavits to adequately show that counsel’s lack of action constituted ineffective assistance of counsel. Issue 2: Proportionality review Underwood argues that while the Court conducted a proportionality review of his death sentence, it improperly did so by applying the “especially heinous, atrocious or cruel” aggravating factor. However, the Court did not err in including the “especially heinous” aggravator in making its proportionality analysis. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
