Jordan v. State
| Docket Number: | 2002-DR-00896-SCT Linked Case(s): 2002-DR-00896-SCT ; 2002-DR-00896-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-10-2005 Opinion Author: Waller, P.J. Holding: LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Execution style theory - Ineffective assistance of counsel - Mental health examination - Jury instructions - Equal protection Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 04-24-1998 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: Convicted of capital murder and sentenced to death. Case Number: 18807 |
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| Note: | Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief and Motion to Supplement and Amend Petition filed by counsel for petitioner is granted in part and denied in part. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Richard Gerald Jordan |
OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: DAVID P. VOISIN
ROBERT RYAN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L.WHITE, JR. CONO CARANA |
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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 - Execution style theory - Ineffective assistance of counsel - Mental health examination - Jury instructions - Equal protection |
| Summary of the Facts: | Richard Jordan was convicted and sentenced to death in 1976. Subsequently, the law pertaining to death penalty proceedings changed, and Jordan’s conviction and sentence were vacated. In 1977, Jordan was retried in a bifurcated trial and was again convicted and sentenced to death. The conviction and sentence was affirmed on appeal. His death sentence was later vacated by the U.S. Court of Appeals for the Fifth Circuit which remanded for a new sentencing trial. In 1983, Jordan was again sentenced to death and that sentence was affirmed on appeal. The U.S. Supreme Court vacated Jordan’s death sentence. On remand, Jordan entered into an agreement with the State whereby he would forego another sentencing trial and accept a sentence of life imprisonment without parole. In 1994, the Mississippi Supreme Court invalidated that agreement, and Jordan’s case was reversed and remanded for another sentencing hearing. Jordan was again sentenced to death, and that sentence was affirmed on appeal. Jordan is now seeking post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Execution style theory Jordan objects to the way in which the State presented its theory that the victim was killed “execution-style.” This issue has already been litigated and is now procedurally barred. Jordan is attempting to rephrase the issue as a knowing presentation of false or misleading evidence, but the underlying claim is the same one that has already been addressed and found to have no merit. In addition, Jordan has not demonstrated a reasonable likelihood that testimony on blood spatter evidence resulted in a death sentence where it is undisputed that Jordan was twice convicted and sentenced to death in previous trials in which there was no testimony on the issue of blood spatters. Jordan argues that it is a violation of the law of the case doctrine and the doctrines of collateral and judicial estoppel to allow the State to present evidence that the victim was killed “execution-style” when at the first two trials, the State acquiesced to his account that he shot the victim when she tried to run away from him. Jordan could have and yet failed to raise this issue in previous post-conviction pleadings. Therefore, the claim is now procedurally barred. Jordan also argues that the special prosecutor led defense counsel to believe that transcripts of prior trials were unavailable for review. However, all of the transcripts of the earlier proceedings are public records and, as such, were equally available to the State and the defense. Furthermore, the affidavit of defense counsel does not support this claim. Even if the testimony were excluded, there were still sufficient proof of aggravating circumstances to support Jordan’s death sentence. Issue 2: Ineffective assistance of counsel Jordan argues that defense counsel was ineffective for failing to prepare to rebut a witness’s blood spatter testimony, for failing to hire a blood spatter expert to refute the testimony and for failing to object to the witness’s qualifications as an expert on the subject. Jordan’s defense counsel’s confessed that he failed to realize that blood spatter evidence would be presented. He was therefore deficient on this point. However, Jordan was convicted and sentenced to death twice before the blood spatter testimony was ever presented to a jury. Therefore, Jordan’s argument that the blood spatter evidence was central to the case is not enough to undermine confidence in the result. Jordan also claims of ineffective assistance of counsel with regard to the jury instructions and the form of the verdict. He argues that the jury instructions took away the jury’s discretion to consider his theory that the murder was not unnecessarily tortuous or physically painful to the victim, and, therefore, was not heinous, atrocious and cruel. However, the instruction set forth the State’s theory and provided the basis for finding aggravating circumstance that the murder was heinous, atrocious and cruel. In addition, Jordan’s ineffective assistance of counsel claims are based upon claims that have already been raised by Jordan and addressed. Jordan argues that the court erred in accepting the jury’s verdict which merely copied verbatim the flawed jury instructions. However, the jury’s verdict in the present case can be understood in a reasonably clear manner, and it was not deficient performance on the defense counsel’s part to fail to object to the form of this verdict. Jordan also argues that defense counsel was ineffective for failing to object because the especially heinous aggravator “doubled up” with the kidnapping aggravator. This claim was decided previously. Jordan argues that defense counsel should have objected to the special prosecutor’s remarks during closing arguments. Because the underlying substantive claims were previously found to be without merit, Jordan cannot now sustain a claim of ineffective assistance of counsel. Issue 3: Mental health examination Jordan makes several claims of error pertaining to the mental health examination made prior to Jordan’s 1998 re-sentencing. At the 1998 re-sentencing trial the defense opted not to call the doctor as a witness because his report was unfavorable to Jordan but used information from that report to cross-examine a key mitigation witness. Jordan argues that it was improper for the State to use the report to impeach defense witnesses because the report was based on erroneous information and, therefore, unreliable. The State was within its rights to use the report to impeach the mitigation witness as to veracity, credibility and his knowledge of the defendant since that witness’ testimony directly contradicted information contained in the report. In addition, the misinformation of which Jordan complains was not material. Jordan suffered no prejudice from the discrepancy between the two mental health reports and he has not demonstrated that trial counsel was ineffective for failing to object to the report used by the State. Jordan argues that he did not give a knowing and intelligent waiver prior to cooperating with the doctor. It was the defense who requested Jordan be given a mental health evaluation for the purposes of exploring whether Jordan suffered from post-traumatic stress syndrome, for purposes of mitigation. Because Jordan’s counsel requested the psychiatric examination, he was well aware, and even intended, that statements he gave be used at the resentencing trial. Jordan argues that trial counsel should have requested appointment of a psychologist. A defendant is not entitled to a psychiatrist or psychologist of his choice, but only has the right to a competent one. Issue 4: Jury instructions Jordan argues that the heinous, cruel and atrocious jury instructions were improper because the aggravating factors were not defined with any specificity and this created an evidentiary shortcut for the jury. There was sufficient evidence for the jury to find that the victim’s murder was heinous, atrocious, cruel, conscienceless and pitiless. There was no unconstitutional burden-shifting in the jury instructions or evidentiary shortcuts for the jury. Nor were the instructions unconstitutionally vague or overly broad. Jordan argues that the jury instructions improperly instructed the jury to disregard sympathy. The very instruction given to Jordan’s jury has been approved in prior cases. Jordan also argues that the jury should have been given a “catch-all” instruction as to the fact that they should consider and weigh all of the evidence in mitigation of punishment. In Jordan’s sentencing trial, the instructions clearly advised the jury it could consider any other matter brought up during the trial as mitigating evidence. Even though the jury did not get a standard catch-all instruction, taking the instructions as a whole, the jury was instructed that it should consider and weigh all of the evidence in mitigation of punishment. Issue 5: Equal protection Jordan argues that of all the inmates sentenced to death prior to the change of law announced in Jackson v. State, 337 So.2d 1242 (Miss. 1976), he is the only one who remains on death row. Jordan also argues that his exemplary record while in prison and evidence of changed character entitles him to post-conviction relief. A defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination. Jordan offers no evidence specific to his own case that would support an inference that the decision-makers acted with a discriminatory purpose. Jordan argues that it was error to allow the special prosecutor to prosecute this case, because the prosecutor had a personal vendetta against. However, Jordan fails to offer any proof that the Harrison County District Attorney’s Office did not retain control over the prosecution of this case. He also fails to demonstrate the prosecutorial vindictiveness about which he complains. Jordan argues that after four reversals of his death sentence and the passage of so many years since the crime was committed, he has been denied the ability to present a comprehensive case in mitigation. Jordan has had the benefit of all of the mitigating evidence that was available the first time he was convicted and sentenced to death. Although, the form of some of the evidence is not the same as it was in the original presentation, it is still available and has been utilized to the best extent possible by defense counsel. |
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