Bishop v. State
| Docket Number: | 2002-DR-00932-SCT Linked Case(s): 2002-DR-00932-SCT ; 2002-DR-00932-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 07-01-2004 Opinion Author: Waller, P.J. Holding: LEAVE TO PROCEED IN TRIAL COURT WITH PETITION FOR POST-CONVICTION RELIEF DENIED |
|
| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Reckless indifference - Waiver of sentencing jury - Aiding and abetting instruction - Mental retardation - 911 tape - Proportionality of death sentence - New legal issue in reply brief Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
|
| Trial Court: |
Date of Trial Judgment: 02-04-2000 Appealed from: Lee County Circuit Court Judge: Frank Russell Disposition: Convicted of capital murder and sentenced to death. District Attorney: John Richard Young Case Number: CR99-149 |
|
| Note: | Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, denied. Motion to Strike Exhibits and Appendices to and Portions of Petitioner's Reply Brief is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Dale Leo Bishop |
OFFICE OF CAPITAL POST-CONVICTION
COUNSEL BY:
ROBERT M. RYAN
LOUWLYNN VANZETTA WILLIAMS |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JUDY T. MARTIN MARVIN L. WHITE, JR. |
|
|
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. |
|
| Topic: | Death penalty post-conviction relief - Ineffective assistance of counsel - Reckless indifference - Waiver of sentencing jury - Aiding and abetting instruction - Mental retardation - 911 tape - Proportionality of death sentence - New legal issue in reply brief |
| Summary of the Facts: | Dale Bishop was convicted of capital murder, with the underlying felony of kidnaping, and sentenced to death. Bishop's conviction and sentence were affirmed on direct appeal. Bishop has filed a Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Bishop argues that his trial counsel were constitutionally ineffective for failing to file a motion for a change of venue. The decision to obtain a venue change is within the realm of strategy. In addition, the jurors stated that they could be fair and impartial. Bishop argues that counsel failed to conduct an adequate and sufficient investigation for purposes of mitigation. Bishop's counsel did all that they could, within the limitations placed on them by Bishop. Witnesses were not called, and mitigation evidence was not presented pursuant to Bishop's specific instructions. Bishop argues that his trial counsel failed to present an adequate and sufficient defense during the guilt phase of the trial. The State called all of the eyewitnesses during its case in chief. Bishop's counsel cross-examined most of the State's witnesses at length. There were no other witnesses to call, except Bishop himself, and he had confessed his involvement to the police. Bishop argues that his counsel failed to adequately prepare for trial. However, he has failed to show that counsels' performance was deficient, or that he was prejudiced. Issue 2: Reckless indifference Bishop argues that merely contemplating that lethal force would be used is insufficient to support the imposition of the death penalty and that it is impermissible to allow the imposition of the death penalty for a felon who contemplated that lethal force would be used in the commission of a crime, but was not a major participant who showed a reckless indifference to the killing. It is clear that Bishop was an aggressor; and willfully imposed great danger upon the victim. His actions overwhelmingly show that he evinced a reckless indifference to the killing. Issue 3: Waiver of sentencing jury Bishop argues that waiver of the sentencing jury and the imposition of a sentence of death by the trial court violates section 99-19-101. This issue is barred since it was considered on direct appeal. Bishop also argues that the trial judge failed to advise him of the possible sentences the trial judge could impose. The record clearly contradicts Bishop's assertions. Bishop understood that the trial court could sentence him to death and in fact requested that the trial court do so. Issue 4: Aiding and abetting instruction Bishop argues that a jury instruction regarding aiding and abetting was plain reversible error. This was considered and rejected on direct appeal. Issue 5: Mental retardation Bishop argues that he is mentally retarded. The proof in this record does not support Bishop's claim of being mentally retarded as to require remand. Bishop supports his claim only with copies of school records and affidavits of family members. Issue 6: 911 tape Bishop argues that the introduction of the 911 tape into evidence was error. At trial Bishop's counsel objected to the admission of the tape because it was hearsay and the State failed to lay a proper foundation. Although that objection was erroneously overruled, two witnesses testified during the trial regarding calling 911 and what they told the 911 operator. The tape of the 911 call was cumulative of their testimony. Issue 7: Proportionality of death sentence Bishop argues that the death penalty was disproportionately imposed because his co-defendant, who committed the acts which killed the victim, received a life sentence. This issue was decided on direct appeal against Bishop. Issue 8: New legal issue The State argues that Bishop has raised a new legal issue for the first time in the reply brief and requests that the argument be stricken. Issues raised for the first time in an appellant's reply brief will not be considered. Paragraph 187 raises an ineffective assistance of counsel claim which was not raised in Bishop's original petition. Accordingly, the State's motion to strike paragraph 187 is granted. In addition, the documents filed with the reply brief fail to meet the pleading requirements of the post-conviction relief statute. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
