Bell v. State
| Docket Number: | 1999-DR-01287-SCT Linked Case(s): 1999-DR-01287-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-20-2004 Opinion Author: Carlson, 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 - Time bar - Section 99-39-5(2) - Ineffective assistance of counsel Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz and Randolph, JJ. Procedural History: PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 01-27-1993 Appealed from: Grenada County Circuit Court Judge: James Sumner Disposition: Appellant was convicted of capital murder and sentenced to death. District Attorney: Doug Evans Case Number: 6078 |
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| Note: | Application for Approval of Fees Pursuant to Section 99-15-18(5) Miss. Code Ann., and Motion Asking Disposition of Earlier Filed Application for Approval of Fees filed by counsel for appellant are granted. Bell's Application for Leave to File Petition for Post-Conviction Collateral Relief, denied. Bell's Pro Se Petition for Post-Conviction Relief, denied. Motion for Reconsideration filed by counsel for Frederick Bell is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Frederick Bell |
OFFICE OF CAPITAL POST-CONVICTION COUNSEL
BY: ROBERT M. RYAN
TERRI L. MARROQUIN
DAVID VOISIN |
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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 - Time bar - Section 99-39-5(2) - Ineffective assistance of counsel |
| Summary of the Facts: | Frederick Bell was convicted of capital murder and sentenced to death. On direct appeal, his conviction and sentence were affirmed. Bell filed a petition requesting leave to seek post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Time bar The State argues that Bell’s petition is time barred according to section 99-39-5(2), which requires that all petitions for post conviction relief be made within three-years after the Court’s decision. Generally, the three-year deadline is measured from the date the mandate was issued. The instant petition was filed several days before the deadline. Issue 2: Ineffective assistance of counsel Bell argues that counsel's cumulative ineffectiveness rendered the guilt phase of the trial unconstitutional. He first alleges that counsel was too inexperienced to try a capital case. His petition fails to show specific instances where counsel’s performance suffered as a result of his workload. Absent specific instances of error, defendant's allegations that trial counsel was inexperienced, carried unduly heavy caseload and had severely limited resources, are insufficient to support a claim for ineffective assistance of counsel. Bell also alleges that counsel failed to secure adequate funds for investigation. However, such funds were provided. Bell also alleges counsel failed to request the appointment of a ballistics expert, because evidence as to who fired which weapon would have been relevant mitigating evidence. However, a ballistics expert would not aid in the determination of which bullet proved fatal or who served as the principal in the crime. Bell claims that counsel failed to investigate the possibility that someone else committed the crime, prove his available alibi, and/or to find witnesses who could have provided important evidence on behalf of the defense. Counsel's choice of whether to call witnesses and ask certain questions falls within the ambit of trial strategy. Bell claims that counsel failed to request questionnaires to accompany the jury summons. However, he fails to provide any support that such a failure renders counsel ineffective. Bell claims that counsel failed to raise Batson challenges to the prosecution’s exercise of peremptory challenges. The failure to raise a Batson challenge was based upon a tactical decision and was not ineffective assistance of counsel. With regard to Bell’s claims regarding voir dire, an attorney's actions during voir dire are considered to be a matter of trial strategy. In addition, there has been no showing that the jury empaneled was not fair and impartial. Bell argues that the trial counsel presented conflicting defenses. Any alleged conflicting defenses resulted from the substantial evidence of Bell’s guilt. Bell claims counsel failed to impeach a witness who, because he was in the store just prior to the murder, had a motive to lie. Instead of discussing how this failure prejudiced the defense, Bell presents an unsupported motive for the witness to lie. Bell claims that counsel should have challenged the reliability and completeness of the findings by the State’s expert. However, any error is superficial and is without merit. Trial counsel stipulated to the introduction of three weapons. Counsel’s choice whether to make certain objections fall within the ambit of trial strategy. Bell claims that counsel was ineffective because he failed to secure the attendance of witnesses to corroborate his alibi. However, Bell fails to name the witness counsel failed to call. Bell claims that trial counsel failed to object to jury instructions that incorrectly stated the law. This argument is an attempt to relitigate an issue previously decided to be without merit on direct appeal. Bell claims that a limited continuance was necessary between the guilt and sentencing phases of the trial, and that without such, counsel was unable to present an effective case during sentencing. Section 99-19-101 provides that the sentencing proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. Bell claims that the failure to present an opening statement supports his claim of ineffective assistance of counsel. The giving of an opening statement in the penalty phase is not required in Mississippi. Bell claims that counsel failed to eliminate any jury misperceptions that he would be eligible for parole. However, there is no evidence of jury misperceptions. Bell claims that counsel failed to the object to the inclusion of the aggravating factor “that the murder was committed for the purpose of avoiding or preventing a lawful arrest.” On direct appeal, the Court held that this was an appropriate factor. Bell claims that counsel failed to adequately investigate possible mitigating evidence. However, the record reveals that counsel interviewed Bell’s mother, grandmother, brother, girlfriend, three elementary school teachers, and the wife of a local attorney. Bell claims that counsel failed to present mitigating evidence regarding his age, mental retardation, emotional disturbances and mental illness, disadvantaged and abusive childhood, adaption to prison conditions, and cultural impacts on his life. However, the record shows that trial counsel presented sufficient evidence regarding Bell’s age at the time of the crime and Bell’s difficult childhood. Bell claims that counsel failed to object to improper statements made by the prosecution during closing argument. However, the comments were fair commentary on behavior and testimony by Bell which was in evidence. Bell claims that counsel failed to have the jury instructed regarding the effect of the Tennessee sentence and failed to object to the trial court’s “anti-sympathy” instruction and an instruction which allowed the jury to consider “non-statutory aggravators.” Counsel’s failure to object to such instructions does not support Bell’s claim of ineffective assistance of counsel. |
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