Gray v. State
| Docket Number: | 1999-DR-00592-SCT Linked Case(s): 1999-DR-00592-SCT ; 1999-DR-00592-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-16-2004 Holding: Application for Leave to Seek Post-Conviction Relief, denied. |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Mental retardation - DNA evidence - Jury instructions - Form of verdict - Cumulative effect of errors - Aggravating circumstances Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, 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: 01-25-1996 Appealed from: Newton County Circuit Court Judge: Marcus D. Gordon Disposition: Convicted of capital murder. District Attorney: Ken Turner Case Number: 4582 |
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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 Rodney Gray, denied. Petitioner's Pro Se Petition for Post-Conviction Relief, denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Rodney Gray |
OFFICE OF CAPITAL POST-CONVICTION COUNSEL
BY: ROBERT RYAN
LOUWLYNN VANZETTA WILLIAMS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: 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 - Ineffective assistance of counsel - Mental retardation - DNA evidence - Jury instructions - Form of verdict - Cumulative effect of errors - Aggravating circumstances |
| Summary of the Facts: | Rodney Gray was convicted of capital murder, and the Supreme Court affirmed Gray’s conviction and sentence on direct appeal. Gray now seeks leave to pursue post-conviction relief in the trial court. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Gray argues that he received ineffective assistance of counsel, because his trial counsel failed to properly argue a motion for change of venue. The issue of whether the trial court properly denied the motion to transfer venue was addressed on Gray’s direct appeal. Thus, Gray is now procedurally barred by res judicata from relitigating this issue. In addition, Gray does not present new or additional evidence not offered or unavailable to the trial court. Gray also argues that his counsel were ineffective in failing to seek a continuance of the trial after the motion for change of venue was denied. Since the motion for change of venue was properly denied, counsel cannot be faulted for deciding not to seek a continuance. Gray argues that his counsel were ineffective by failing to develop an adequate and sufficient record as to potential black jurors struck by the State for cause. The record shows that the trial judge overruled many of the State's challenges for cause and excluded both black and white jurors for valid reasons of cause, including hardship. Thus, Gray has failed to establish a prima facie case of systematic exclusion. Gray argues that counsel failed to properly challenge the indictment, arguing that the underlying felonies listed in the indictment caused it to be substantially defective and counsel's motion to dismiss the indictment should have been granted. This issue was considered on direct appeal and found to be procedurally barred. The motion to dismiss the indictment was properly denied simply because it lacked merit and not because it was ineffectively argued. Gray argues that counsel were ineffective for failure to exclude from evidence the statements which Gray made to his cell mates as well as the failure to secure an adequate cautionary instruction after the statements were admitted. Because this issue was considered both procedurally and on the merits and no new evidence has been provided in the petition for post-conviction relief, the doctrine of res judicata applies and bars reconsideration. Gray argues that counsel were ineffective by failing to investigate and present mitigating evidence during the sentencing phase of the trial. So long as trial counsel presents to the sentencing jury evidence of a capital defendant's educational background, psychological profile and childhood experience, there is no professional error. Gray's defense attorneys did, in fact, present a case in mitigation for the jury to consider. Gray also argues that counsel called only five defense witnesses and did not have Gray testify in his own behalf. Decisions regarding which witnesses to call are within the realm of trial strategy. Issue 2: Mental retardation Based upon the evidence presented in the petition for post-conviction relief, in Gray’s reply to the state’s response to his petition, and the trial record, Gray has not established that he is entitled to a hearing on the issue of mental retardation. Gray provides neither affidavits of experts opining his mental retardation, nor is there any qualified opinion contained in the trial record, other than that of a forensic and counseling psychologist who examined Gray before trial by order of the court to determine whether Gray was competent to stand trial and whether there were possible mitigating circumstances in the case. Gray’s post-conviction relief counsel presents elementary and middle school grade records, none of which indicates that his IQ had been tested, or that he was in special education classes. The educational records reflect a child who at times struggled in school, but they do not offer any proof that Gray's difficulties in school were as a result of mental retardation. Issue 3: DNA evidence Gray argues that the testimony of a forensic serologist employed in the FBI laboratory should have been stricken at trial because she was not the actual examiner who performed the testing on the samples. The issue of the admissibility of the DNA evidence was previously raised and rejected and is now procedurally barred by the doctrine of res judicata. Issue 4: Jury instructions Gray argues that jury instructions given at the sentencing phase of the trial violated his Eighth Amendment rights because the instructions allowed the jury to impose the death sentence without finding that he intended to kill his victim. Because a challenge to the jury instructions could have been made at both trial and on direct appeal but was not, this issue is now procedurally barred from consideration. Gray further argues that the Mississippi death penalty statutes are unconstitutional in that they are applied to all defendants who are guilty of felony murder. The Supreme Court has held previously that Mississippi's capital murder scheme is not unconstitutional simply because it makes the death penalty a possible punishment for felony murder without a requirement to prove an intent to kill. Issue 5: Form of verdict Gray argues that the form of the sentencing verdict was defective for failure to include a written confirmation that the jury found the aggravating factors listed in section 99-19-101 beyond a reasonable doubt. This claim could have been raised at trial and on direct appeal, but was not and is now procedurally barred. In addition, the jury in Gray’s trial returned a written verdict announcing that they had unanimously found the existence of the aggravating circumstances. It necessarily follows that Gray's jury found the aggravating circumstances to exist beyond a reasonable doubt even though those particular words were not written on the face of the verdict. Issue 6: Cumulative effect of errors Gray argues there were five instances of ineffective assistance of counsel whose cumulative effect was to deprive him of a fundamentally fair trial. These alleged omissions include failure to object to the State's use of jury strikes for cause against African-Americans; failure to object to the jury instructions S-3, S-4 and S-6; failure to object to the testimony of Gray's cell mates; failure to object to the prejudicial effect of pretrial publicity; and failure to submit jury instructions to weigh informant testimony with caution. Gray is now procedurally barred by res judicata from relitigating the issues previously before the Court on direct appeal through the present petition for post-conviction relief. With no error to be found on the part of trial counsel in these enumerated instances, there can be no cumulative error to have deprived Gray of a fundamentally fair trial. Issue 7: Aggravating circumstances Gray argues that his death sentence must be vacated because the aggravating circumstances of capital murder found by the jury were not included in the indictment. A defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution and an indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. |
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