Jordan v. State
| Docket Number: | 1999-DR-01391-SCT Linked Case(s): 1999-DR-01391-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-19-2005 Opinion Author: Carlson, J. Holding: LEAVE TO SEEK POST-CONVICTION RELIEF DENIED |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Mental examination - Exculpatory evidence - Ineffective assistance of counsel - Admission of evidence - Conflicting theories - Disproportionate sentence - Mental retardation - Cruel and unusual punishment - Capital sentencing scheme - Jury instructions - Voir dire - Jury qualifications - Section 13-5-1 Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Jury Trial Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 11-01-1996 Appealed from: Clarke County Circuit Court Judge: Robert Bailey Disposition: Convicted of two counts of capital murder sentenced Jordan to death. District Attorney: Bilbo Mitchell Case Number: 7698 |
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| Note: | Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief filed by counsel for petitioner is denied. Motion for Leave to Proceed in the Trial Court with Amendments to Petition for Post-Conviction Relief filed by counsel for petitioner is denied. Petitioner's Pro Se Petition for Post Conviction Relief is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Kelvin Jordan a/k/a Kelvin L. Jordan |
JAMES W. CRAIG, STEFANIE M. McARDLE, F. KEITH BALL
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MARVIN L. WHITE, JR. |
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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 - Mental examination - Exculpatory evidence - Ineffective assistance of counsel - Admission of evidence - Conflicting theories - Disproportionate sentence - Mental retardation - Cruel and unusual punishment - Capital sentencing scheme - Jury instructions - Voir dire - Jury qualifications - Section 13-5-1 |
| Summary of the Facts: | Kelvin Jordan was convicted of two counts of capital murder and after a separate hearing, the jury sentenced Jordan to death. The Supreme Court affirmed Jordan’s direct appeal. Jordan now seeks post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Mental examination Jordan argues that he was denied his Fifth, Sixth, Eighth, and Fourteenth Amendment rights when a deputy was allowed to testify as to a comment Jordan made during his mental evaluation. The statement made by the deputy refuted the psychiatrist’s testimony that Jordan was easily influenced. There is nothing in the record to indicate that law enforcement surreptitiously placed the deputy in the room during the examination for the sinister motive of eavesdropping to obtain incriminating evidence against Jordan for later use at trial. Additionally, similar testimony was allowed into evidence through Jordan’s mother and was not directly rebutted by the State. In addition, this claim was not raised on direct appeal, and Jordan also fails to show any actual prejudice from this testimony. Jordan also claims that the deputy’s actions violated his right to independent expert assistance, because the presence of the deputy compromised the independence of the psychiatrist hired by the defense. While the better practice would have been for the doctor to examine Jordan in the absence of any law enforcement officers after taking adequate security measures, Jordan was given the opportunity to be examined by an independent psychiatrist of his choosing at State expense. Issue 2: Exculpatory evidence Jordan argues that the State withheld exculpatory or impeachment evidence relating to two witnesses who testified at trial. In order to establish that a violation has occurred, the defendant must show that the State possessed evidence favorable to the defendant (including impeachment evidence); that the defendant did not possess the evidence nor could he have obtained it himself with reasonable diligence; that the prosecution suppressed the favorable evidence; and that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. In the original petition, Jordan attached two affidavits to support his claim. Much of the first affidavit is based on hearsay, and there is no indication in the remainder of the affidavit that the State had any knowledge of the facts as alleged by the affiant. The second affidavit is completely based on hearsay. Jordan has produced no evidence that the State withheld any exculpatory evidence from him prior to trial. Finally, Jordan makes no showing of any probability of actual prejudice. Issue 3: Ineffective assistance of counsel Jordan argues that he received ineffective assistance of counsel. He argues that if the State was not guilty of any discovery violation, then the attorneys at trial were ineffective in failing to investigate and uncover impeachment evidence. Again, the affidavits submitted are largely based on hearsay. There is no reasonable probability that the result would have been different if witnesses had been cross-examined about the statements in the affidavits attached to the petition. Jordan also argues that his attorneys were deficient in failing to retain a ballistics expert at trial. Jordan has failed to submit documentation from any expert who now claims that he has reviewed the evidence presented at trial and can now testify about which pistol caused which entrance wound. There is no ineffective assistance of counsel in the trial attorneys’ failure to call a ballistics expert because such an examination could have conclusively determined that Jordan fired the fatal shot. In addition, Jordan was guilty of capital murder as a principal whether the fatal shot came from his pistol or his co-defendant’s pistol. Jordan argues that his attorneys were ineffective in failing to seek complete discovery from the State. However, the record shows that Jordan’s attorneys filed a motion for discovery specifically requesting the items Jordan now contends should have been requested. Jordan argues that the voir dire conducted by his attorneys was insufficient on the meaning of mitigating circumstances. The record shows that trial counsel fully examined the venire members concerning whether they would automatically impose the sentence of death. Those jurors who indicated that they would automatically impose the death sentence were excused for cause. Jordan argues that his attorneys were ineffective in failing to request that the jury be instructed that a life sentence for capital murder amounted to a life sentence without parole. The record shows that counsel for Jordan did inform the jury that Jordan would never be eligible for parole. Further, counsel for Jordan submitted two jury instructions, which if given, would have informed the jury that a life sentence meant that there was no chance of parole eligibility. Jordan argues that his attorneys failed to investigate the case they presented in mitigation during the sentencing phase and they failed to prepare the witnesses they intended to call, thus presenting inadequate mitigation evidence at the penalty phase. Jordan has not submitted any substantial affidavits of witnesses who now claim that they had relevant evidence which would have assisted the case in mitigation and that they were willing to testify if they had been contacted or called by the defense attorneys. Taken as a whole, the mitigation case was adequately presented. The defense called nine witnesses. The mere fact that the jury did not accept the defense’s argument that Jordan’s life should be spared does not mean that the attorneys who made that argument were ineffective. Jordan argues that counsel was deficient in failing to object to a statement made by the prosecutor in his closing argument. The comment made by the prosecution was in response to defense counsel’s statements made during closing argument. Jordan argues that his attorneys should have called a Clarke County jail trustee who testified in the sentencing phase that Jordan’s co-defendant had told him that he had killed the victims and that Jordan had been opposed to the killings. Under this State’s laws concerning principals and accomplice culpability, it mattered not whether the co-defendant had admitted that he shot the victims since Jordan had admitted from the beginning that he participated in the robbery and killing. In addition, decisions regarding which witnesses to call and when to call them are within the realm of trial strategy. Jordan argues that his attorneys should have objected to the improper use of juvenile court records at the sentencing phase. The record shows that counsel did in fact pose two objections during the cross-examination about the youth court records. In addition, the Court has already found that there was no error in the use of the youth court records. Jordan also argues that his attorneys should have objected to the State’s argument at the penalty phase that the jury was not responsible for killing the defendant if it imposed the death sentence. There is no basis for this claim. Jordan argues that his attorneys were ineffective in failing to raise various international treaties as defenses to imposition of the death penalty. Jordan’s petition has failed to allege any actual prejudice in the failure to raise such claims. Issue 4: Admission of evidence Jordan argues that the court should have allowed him to delve into his co-defendant’s alleged intimidation or domination of Jordan and to put on evidence that he suffered from several illnesses as a child. These claims are barred for failure to raise the claim on direct appeal of this case. Procedural bar aside, Jordan makes no argument under this issue, and he cites no authority. The trial court held a hearing on the issue of childhood illnesses. Finding that these illnesses did not affect Jordan during his adult life, the trial court found them to be irrelevant. This ruling was proper. Issue 5: Conflicting theories Jordan argues that the State’s theory at his trial conflicts with the State’s theory at his co-defendant’s later trial for the same two capital murders. The statements do not conflict. The statement that Jordan fired the shot that killed one of the victims is consistent with the State’s theory in Jordan’s trial and with the evidence. Jordan admitted that he fired one shot at the victim after his co-defendant shot him first. The victim was shot twice in the head with only one of the wounds being fatal. That statement does not contradict the District Attorney’s later argument that the co-defendant was responsible for both murders. Issue 6: Disproportionate sentence Jordan argues that his co-defendant entered into a plea agreement for a sentence of life without parole, and that Jordan, as an unwilling participant in the robbery and murder scheme, is less culpable than the co-defendant and that their sentences are disproportionate. The proportionality question was decided in Jordan’s direct appeal. In addition, there is very little evidence that Jordan was less than a willing accomplice in these crimes. Even though a co-defendant might have received a life sentence, there is no prohibition against another co-defendant being sentenced to death. Issue 7: Mental retardation Jordan argues that he has suffered from mental retardation and its attendant adaptive deficits since early childhood. The only indications of mental retardation he provides are that his childhood development was slow, that he did not learn to walk until he was two years old, that he suffered from meningitis as a child which might have caused brain injury; and, that he was placed in special education classes in school. None of those allegations are supported by any affidavits of mental health professionals or by any documentary or medical evidence. Because Jordan’s petition has failed to support his claim of retardation under prior precedent, Jordan is not entitled to an evidentiary hearing on his claim of mental retardation. Issue 8: Cruel and unusual punishment Jordan argues that lethal injection causes undue suffering and lingering death which amounts to cruel and unusual punishment. Jordan fails to support his claim that lethal injection is a cruel and unusual method of execution with any sworn proof as is required by section 99-39-9(1)(e). The Mississippi Supreme Court has also recently decided that Mississippi’s lethal injection procedure does not amount to cruel and unusual punishment and is not a constitutional deprivation. Issue 9: Capital sentencing scheme Jordan argues that Mississippi’s capital sentencing scheme creates a substantial risk that death will be inflicted in an arbitrary and capricious manner on a defendant convicted of felony murder. The Mississippi capital murder scheme is not unconstitutional because the underlying felony is used both to elevate the crime to capital murder, and also used later as an aggravating circumstance. Issue 10: Jury instructions Jordan argues that the court erred in refusing to give certain proposed defense instructions. The first instruction deals with aggravating factors outweighing mitigating factors. A capital defendant is not entitled to an instruction stating that the aggravating circumstances must outweigh the mitigating circumstances “beyond a reasonable doubt.” The second instruction states that each individual juror must find beyond a reasonable doubt that death is the only appropriate punishment. A defendant is not entitled to an instruction informing the jury that it must find, beyond a reasonable doubt, that death is the only appropriate penalty. The final instruction would have informed the jury that Jordan will never be eligible for pardon or parole. In addition to being a misstatement of law as worded, this instruction was repetitive. Issue 11: Voir dire Jordan argues that group voir dire, as opposed to individual voir dire, created a climate in which petitioner was unable to discern jurors’ true feelings and predilections and prevented the selection of a fair and impartial jury. Jordan was allowed to interview several panel members in an individual setting when their answers to questions required sensitive treatment. Issue 12: Jury qualifications Jordan argues that section 13-5-1, which requires jurors to be twenty-one years of age or older, deprives him of his right to a jury of his peers. The Supreme Court has held the provisions of section 13-5-1 are constitutional. |
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