Carr v. State
| Docket Number: | 97-DR-01609-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-20-2004 Opinion Author: Cobb, P.J. Holding: APPLICATION FOR LEAVE TO SEEK POSTCONVICTION RELIEF GRANTED IN PART AND DENIED IN PART |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - False testimony - Suppression of evidence - Ineffective assistance of counsel - Sufficiency of evidence - Jury impartiality - Cruel and unusual punishment Judge(s) Concurring: Smith, C.J., Waller, P.J., Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz and Carlson, JJ. Concur in Part, Dissent in Part 1: Easley, J., Concurs in Part and Dissents in Part Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 09-19-1990 Appealed from: Quitman County Circuit Court Judge: Elzy Smith, Jr. Disposition: Appellant was convicted of capital murder and sentenced to death. District Attorney: Laurence Y. Mellen Case Number: 5115 |
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| Note: | Application for Leave to File Petition for Post Conviction Relief and Memorandum in Support Thereof filed by counsel for appellant is granted in part and denied in part. Petitioner's Pro Se Petition for Post Conviction Relief is granted in part and denied in part. Application for Leave to File Supplement to Motion for Post Conviction Relief and Memorandum in Support Thereof filed by counsel for appellant is granted. Motion for Reconsideration filed by counsel for Anthony Carr is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Anthony Carr |
OFFICE OF CAPITAL POST-CONVICTION COUNSEL
BY: TERRI L. MARROQUIN
WILLIAM CLAYTON |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR. |
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| Topic: | Death penalty post-conviction relief - False testimony - Suppression of evidence - Ineffective assistance of counsel - Sufficiency of evidence - Jury impartiality - Cruel and unusual punishment |
| Summary of the Facts: | Anthony Carr was convicted and sentenced to death on four counts of capital murder. His conviction and sentenced were affirmed on direct appeal. Carr has now filed a motion for post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: False testimony Carr argues that the prosecution knowingly elicited false testimony from a prosecution witness, who recounted conversations he had with Carr shortly after Carr’s arrest for the murders. Carr attached to his petition a transcript of the plea hearing of the witness showing that the witness testified he was told by the investigator and the district attorney that they would work with him for being a State witness. This evidence was not brought before the Court in the direct appeal. In a death penalty case, admission of perjured testimony mandates a new trial, where there is a reasonable probability that a different result will be reached in the new trial without the perjured testimony. Here, there is no reasonable probability that a different result would be reached in a new trial. Issue 2: Suppression of evidence Carr argues that the prosecution withheld material in two specific instances and committed other prosecutorial misconduct in two other instances. The first material he claims was withheld were portions of statements made by his co-defendant which were favorable to his defense. Withholding exculpatory evidence is not error unless there is a reasonable probability that the verdict would have been different but for governmental evidentiary suppression which undermines confidence in the outcome of the trial. The statements in this case concealed information concerning the murders and the possibility that one of the investigating officers was involved in the murders. Given the small number of law enforcement officers in Clarksdale, Carr could have obtained the names of all of them and pursued an investigation of the officers who were involved. With reasonable diligence he could have obtained the information himself. Carr also claims that the prosecution failed to turn over an inventory list of items in the victim’s truck as part of the discovery process and that the list would place the shotgun, not on the bottom of the truck bed as was testified to in court, but somewhere in the middle of some 40 items removed. Given the very diverse nature of the items, however, it would be rank speculation to presume that the unloading process was accomplished in exactly the reverse order as the loading process. Carr also argues that it was prosecutorial misconduct for the district attorney to provide demonstrative evidence. This information was available to Carr and his counsel before his direct appeal. Post-conviction relief is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal. Issue 3: Ineffective assistance of counsel Carr argues his trial counsel was ineffective because counsel did not adequately present evidence of his mental retardation; counsel did not begin to prepare for the sentencing phase until guilt had been decided; and counsel failed to make a record of all ‘off-the-record’ discussion. Although trial counsel has no duty to present mitigating evidence, Carr’s trial counsel put forth significant mitigating evidence during the sentencing phase. Since trial counsel called forth witnesses and presented the court with significant mitigating evidence, obviously preparation had been made. With regard to making a record, this issue was known before direct appeal and it is not now proper to bring it. Carr also argues that counsel failed to present evidence of an abusive childhood. However, without knowing what specific evidence might have been given by a particular witness, it is impossible to say whether the failure to call such a witness amounted to ineffective assistance of counsel. Issue 4: Sufficiency of evidence Carr argues that the prosecution failed to establish that he killed one of the victims or that the remains found in the charred house were even hers. On direct appeal, the Court found that the record reflects substantial evidence of such quality to support the verdict and thus, to that extent, it is now procedurally barred. Carr now raises for the first time the issue that the prosecution failed to establish that the unidentified, charred body was Bobbie Jo Parker. Given the circumstantial evidence, however, there is no room for reasonable doubt that the fourth body found in the home was that of Bobbie Jo Parker. Issue 5: Jury impartiality Carr argues that the jury was improperly influenced during sequestration by the bailiffs. Once an allegation of juror misconduct arises, the next step is to consider whether an investigation is warranted. In order for the duty to investigate to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality. Although Carr submits the affidavits of eight jurors in support of his claim regarding the bailiff’s actions, the State contacted the jurors who had been interviewed by Carr's counsel and learned that the affiants felt that the affidavits obtained by Carr’s counsel were obtained under false pretenses. The State offered new affidavits from six of the jurors. Given that these affidavits are contradictory and the initial statements have been recanted, it cannot be said that good cause exists to believe that the jury was improperly tainted by outside influences or matters not in evidence. Issue 6: Cruel and unusual punishment Carr argues he is entitled to a jury trial to determine whether he is mentally retarded. Under Atkins v. Virginia, 536 U.S. 304 (2002), and the new standards set forth today in Chase v. State, No. 2003-DR-1355-SCT (Miss. 2004), Carr is granted leave to proceed in the trial court for an evidentiary hearing to determine whether he is still eligible for the death penalty. |
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