Berry v. State
| Docket Number: | 2002-DR-00301-SCT Linked Case(s): 2002-DR-00301-SCT ; 2002-DR-00301-SCT ; 2002-DR-00301-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 07-01-2004 Opinion Author: Waller, P.J. Holding: APPLICATION FOR LEAVE TO FILE PETITION FOR POST-CONVICTION RELIEF DENIED |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Prosecutorial misconduct - Exculpatory evidence - Form of verdict - Confession - Mitigating evidence - Indictment - Constitutionality of capital sentencing scheme - Proportionality - Mental retardation Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves, J. Procedural History: PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 06-25-1992 Appealed from: Chickasaw County Circuit Court Judge: R. Kenneth Coleman District Attorney: Lawrence L. Little Case Number: 9122 |
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| Note: | Berry's Motion for Leave to Proceed in the Trial Court with an Incomplete Petition for Post-Conviction Relief, denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Earl Wesley Berry |
OFFICE OF CAPITAL POST-CONVICTION
COUNSEL BY:
TERRY L. MARROQUIN
ROBERT M. RYAN
WILLIAM J. CLAYTON |
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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 - Prosecutorial misconduct - Exculpatory evidence - Form of verdict - Confession - Mitigating evidence - Indictment - Constitutionality of capital sentencing scheme - Proportionality - Mental retardation |
| Summary of the Facts: | Earl Berry was convicted of capital murder and sentenced as a habitual offender to death. On appeal, his conviction was affirmed but the death sentence was vacated and remanded for resentencing. He was again sentenced to death. On appeal, the sentence was affirmed on all grounds except for the issue of jury selection. Following a Batson hearing, the circuit court held that Berry failed to establish a prima facie case of purposeful discrimination. This was affirmed on appeal. Berry has now filed an Application for Leave to File Petition for Post-Conviction Relief. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Berry argues that counsel should have secured a change of venue before the first trial. Berry has failed to show how such a failure deprived him of a fair trial. Berry also argues that counsel was ineffective for failing to object to the change of venue to Union County, which has a twenty percent fewer African-Americans than Chickasaw County. However, he fails to discuss how the county’s racial composition impacted his rights or potential jurors’ rights. Berry argues that the State improperly bolstered the credibility of an investigator for the highway patrol. Although not asked to do so, the circuit court instructed the jury that the testimony of a police officer is entitled to no special or exclusive sanctity. Berry argues that counsel was ineffective for failing to object when the circuit court disclosed that Berry was a habitual offender. In a capital case, before considering sentencing options, a jury should be informed that the defendant has been adjudicated as an habitual offender. Berry argues that counsel failed to object to the hearsay testimony of the Oktibbeha County Sheriff. Counsel’s choice whether to make certain objections falls within the ambit of trial strategy. During the closing argument, the State drew several comparisons between the respective rights of the victim and Berry. Berry claims that such an argument is prosecutorial misconduct and that counsel failed to object and preserve the issue for appeal. While the comments were egregious and possibly rose to the level of prosecutorial misconduct, the failure to object does not render counsel’s performance ineffective since there was substantial evidence to support the sentence based on the aggravating factors. Berry argues that, while the State used a theatrical performance and references to the Bible in an effort to influence the jury, defense counsel failed to object or request that the jury be admonished. This issue is procedurally barred since it was considered in a prior appeal. Berry argues that counsel was ineffective in failing to request either a continuance or mistrial after the State learned that Investigator Gore had received an anonymous letter suggesting that the victim may have been murdered in a case of mistaken identity. Counsel, upon discovery, sufficiently familiarized himself with the letter and determined that the lack of opportunity to prepare did not prejudice the defense. The decision not to request a continuance or a mistrial falls within the ambit of trial strategy. Berry argues that, by relying on professional witnesses, counsel overlooked an abundance of evidence that family members could have provided. By presenting three professional witnesses and emphasizing Berry’s mental and personal problems, counsel sought to invoke sympathy from the jury and prove that Berry lacked the capacity to appreciate his actions. Issue 2: Prosecutorial misconduct Berry raises many of the same claims for prosecutorial misconduct that were addressed in the prior case. This claim is barred. Issue 3: Exculpatory evidence Berry argues that the State committed a Brady violation by withholding the results of a DNA test, which he claims was exculpatory. Though it is unclear why the State failed to produce a copy of the report, such failure does not warrant an evidentiary hearing since Berry fails to show how the State’s failure deprived him a fundamentally fair trial during resentencing. Issue 4: Form of verdict Berry argues that section 99-19-103 requires a jury to find the aggravating factors beyond a reasonable doubt, and that the verdict from resentencing was in violation because it failed to state such explicitly. This issue is barred since it was not raised in the direct appeal. In addition, there is no authority for the proposition that the jury must actually write the words “beyond a reasonable doubt” in its verdict. Issue 5: Confession Berry argues that the resentencing court’s decision not to allow him the opportunity to attack the confession or to argue to the jury how it was procured was error. It is not an error to prevent a defendant, on resentencing, from presenting evidence or arguing residual doubt as to the validity of his conviction. Issue 6: Mitigating evidence Berry argues that the sentencing instructions prevented the jury from considering all the evidence presented regarding his mental problems. This issue is without merit because of the inclusion of the catchall provision and the fact that defense counsel argued exhaustively to the jury that they should not impose the death sentence due to the extenuating circumstances relating to Berry’s mental and emotional state. Issue 7: Indictment Berry argues that his indictment was unconstitutional because it failed to include and specify the aggravating factors used to sentence him to death. He relies on Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); and Ring v. Arizona, 536 U.S. 584 (2002). The decisions in Ring and Apprendi did not address state indictments, and Jones was based on a federal criminal statute and the Fifth Amendment, which is not applicable to the states. The U.S. Supreme Court has not found that state capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. Issue 8: Constitutionality of capital sentencing scheme Berry argues that, although Mississippi's capital sentencing regime is not identical to the Arizona regime, Mississippi’s scheme is sufficiently similar to render it unconstitutional under Ring. However, the Ring court considered Mississippi’s scheme to be part of a majority of states who have responded to its Eighth Amendment decisions and require that juries make the final determination as to the presences of aggravating circumstances. Issue 9: Proportionality Berry argues that he is entitled to a proportionality review. This issue is barred. Issue 10: Mental retardation Berry argues that he is mentally retarded. Berry relies on affidavits from family members, a report from a social worker, testimony of psychologist, and in addition to other proof. If, on post-conviction review, a defendant produces evidence that he or she has scored 75 or below on an IQ test, an evidentiary hearing for a mental retardation determination will be granted. The petitioner must produce the affidavit of a qualified expert stating that the petitioner is mentally retarded. Other than Dr. Blanton's testimony that Berry was probably not mentally retarded, there is no evidence in the record which supports a remand for an evidentiary hearing on the issue of mental retardation. |
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