Doss v. State


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Docket Number: 1999-DR-00296-SCT
Linked Case(s): 1999-DR-00296-SCT ; 1999-DR-00296-SCT ; 1999-DR-00296-SCT

Supreme Court: Opinion Link
Opinion Date: 07-15-2004
Opinion Author: Cobb, P.J.
Holding: LEAVE TO SEEK POST-CONVICTION RELIEF GRANTED IN PART AND DENIED IN PART

Additional Case Information: Topic: Death penalty post-conviction relief - Juror dishonesty - Shackles - Ineffective assistance of counsel - Mental retardation - “Avoiding arrest” aggravating factor - Proportionality
Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Graves and Dickinson, JJ.
Non Participating Judge(s): Diaz and Randolph, JJ.
Concur in Part, Dissent in Part 1: Easley, J.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 03-30-1993
Appealed from: Grenada County Circuit Court
Judge: James Sumner
District Attorney: Doug Evans
Case Number: 6078A

Note: Request for Approval of Circuit Court Order Regarding Attorneys' Fees, Motion for Interim Payment of Attorney Fees, and Supplemental Request for Approval of Circuit Court Order Regarding Attorneys' Fees filed by Robert B. McDuff, counsel for Anthony Doss are granted. State of Mississippi's motion to strike is granted. Doss' Petition for Leave to Seek Post-Conviction Relief is granted in part and denied in part.

  Party Name: Attorney Name:  
Appellant: Anthony Doss




OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR.



 

Appellee: State of Mississippi ROBERT B. McDUF  

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Topic: Death penalty post-conviction relief - Juror dishonesty - Shackles - Ineffective assistance of counsel - Mental retardation - “Avoiding arrest” aggravating factor - Proportionality

Summary of the Facts: Anthony Doss was convicted of capital murder and sentenced to death. His conviction and sentenced were affirmed on appeal. Doss has now filed an application for leave to file motion to vacate judgment and sentence.

Summary of Opinion Analysis: Issue 1: Juror dishonesty Doss argues that during voir dire, a prospective juror failed to answer a question which would have resulted in his being challenged had he answered. The information he failed to disclose was that the district attorney had represented the juror in a custody case during a divorce. The court should, on a motion for new trial, determine whether the question propounded to the juror was relevant, unambiguous and whether the juror had substantial knowledge of the information sought to be elicited. The court then determines whether prejudice can be inferred from the juror's failure to respond. The record shows that the second requirement, that of the questions being unambiguous, was not met in Doss's trial. It is impossible to tell, from the circuit court's questions, whether the judge was only interested in jurors who had contact with the D.A. in his official capacity or whether he was trying to elicit information about contacts that jurors may have had in other aspects of the D.A.’s legal practice. Issue 2: Shackles Doss argues that he was shackled throughout his trial, that at least four jurors saw him, and since there was no finding or reason or justification for this, he was prejudiced. Shackling a defendant is allowable to protect the decorum or dignity of the trial process or the safety of trial participants or prevent escape. Not only is this argument procedurally barred since it was not raised on direct appeal, but there is no prejudice to Doss based on the statements offered by him. Issue 3: Ineffective assistance of counsel Doss argues that trial counsel was ineffective at both the guilt and punishment phases for failing to raise the various issues upon which the Supreme Court imposed a procedural bar on direct appeal. There were 17 instances on direct appeal where the Court found that the procedural bar was applicable because of defense counsel's failure to raise an objection at trial, or failure to raise the same objection at trial he was attempting to raise on direct appeal. In 15 of those instances, the Court also discussed the merits of the issue and found that the issue was without merit. In neither of the other two instances does Doss demonstrate that his counsel’s failure to timely object, or to object with specificity, so undermined the proper functioning of the adversarial process that the trial did not produce a just result, or prejudiced his defense of the case. Doss also argues that his attorney was ineffective in the penalty phase of the trial, because he failed to properly investigate, locate and prepare witness for sentencing. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Doss has made a sufficient showing under this standard that his attorney's efforts fell short of the efforts a counsel should make in a death penalty sentencing trial, so as to entitle Doss to an evidentiary hearing on this claim in the circuit court. This was his attorney’s first death penalty case, and he admitted that he did not know what he was doing in the sentencing phase. When counsel makes choices of which witnesses to use or not use, those choices must be made based on counsel’s proper investigation. Counsel’s minimum duty is to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. Issue 4: Mental retardation Doss argues that he is entitled to have his sentence vacated because he is mentally retarded and his execution is prohibited under Atkins v. Virginia, 536 U.S. 304 (2002). Doss must provide evidence from at least one qualified expert that, to a reasonable degree of certainty, Doss has a combined Intelligence Quotient of 75 or below, and in the opinion of the expert, there is a reasonable basis to believe that he is mentally retarded. Based on the neuropsychological evaluation of Dr. Michael Gelbort, and the affidavits of Dr. James Merikangas and Jeffrey Eno, a clinical and social worker, Doss has met this threshold requirement. Therefore, Doss is granted leave to present his Atkins claim before the trial court. Issue 5: “Avoiding arrest” aggravating factor Doss argues that it was error to allow the jury to consider the aggravating circumstance that the murder was committed for the purpose of avoiding or preventing a lawful arrest. This issue was considered and rejected on direct appeal. The situation in this case is different from Taylor v. State, 672 So.2d 1246 (Miss. 1996), where the murder victim was found a month and a half after the murder. Issue 6: Proportionality Doss argues that because he was neither the trigger person nor the instigator, the death sentence in this case was disproportionate. This matter was decided on direct appeal and nothing cited by Doss nullifies the procedural bar.


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