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WILLIE ALBERT SMITH v. STATE OF MISSISSIPPI

JUNE 01, 1983

WILLIE ALBERT SMITH
v.
STATE OF MISSISSIPPI



EN BANC

BROOM, PRESIDING JUSTICE, FOR THE COURT:

Post-conviction relief *fn1 is sought by the petitioner in the instant case, Willie Albert Smith. Smith was convicted of the March 15th, 1981, capital murder of a convenience store operator, Shirley Roberts. On appeal, we affirmed the petitioner's conviction and death sentence on August 11, 1982. Smith v. State, 419 So. 2d 563 (Miss. 1982). After we denied Smith's petition for rehearing, the United States Supreme Court denied Smith's petition for writ of certiorari, in Cause numbered 82-5922 decided March 21, 1983.

Smith now seeks our permission for leave to file a petition for post-conviction relief in the lower court, assigning 19 individual grounds which he maintains entitle him to post-conviction relief. At the outset it should be noted that this Court has repeatedly and consistently held that post-conviction relief in Mississippi is not granted upon facts and issues which could or should have been litigated at trial and on appeal. *fn2 Callahan v. State, 426 So. 2d

 801 (Miss. 1983); Bell v. Watkins, 381 So. 2d 118 (Miss. 1980); Auman v. State, 285 So. 2d 146 (Miss. 1973); Irving v. State, 194 So. 2d 239 (Miss. 1967); Gordon v. State, 160 So. 2d 73 (Miss. 1964); Kennard v. State, 246 Miss. 209, 148 So. 2d 660 (1963); Rogers v. State, 240 Miss. 610, 128 So. 2d 547 (1961); Goldsby v. State, 226 Miss. 1, 78 So. 2d 762 (1955); Wetzel v. State, 225 Miss. 450, 76 So. 2d 188 (1955).

 While each of petitioner Smith's claims are individually noted and addressed below, we note at the outset that the first three of these asserted grounds which he claims entitle him to post-conviction relief are grouped under the general heading of" constitutional claims relating to sentence that depend upon cases currently pending. "It is true that Mississippi post-conviction relief procedures may be employed to either obtain relief under a retroactively applied court decision, or to test the retroactivity of such a decision. Culberson v. State, 412 So. 2d 1184 (Miss. 1982); Spears v. State, 278 So. 2d 443 (Miss. 1973); Taylor v. State, 285 So. 2d 172 (Miss. 1973). See also Woodruff v. State, 187 So. 2d 883 (Miss. 1966), cert. den. 386 U.S. 919, 17 L.Ed.2d 790, 87 S. Ct. 881 (1977). Nonetheless, the petitioner's plea that this Court stay its hand in anticipation of what the United States Supreme Court may (or may not) decide is not well taken. If we were to delay our decision on a case, or delay the execution of a sentence, solely for the reason that the United States Supreme Court might decide a case involving

 similar points, the wheels of judicial administration would of necessity come to a grinding halt. Our function as the highest court of the state of Mississippi is to interpret, apply, and shape the law as we see it. Indulgence in prognostications as to the future actions of either the United States Supreme Court or any other court is not our function. *fn3

 The petitioner's first such assigned ground for relief is the state's interjection of evidence relating to Smith's purported rape of the victim as an aggravating circumstance. At trial, the defendant objected on three separate occasions to the state's interjection of such evidence, but failed to raise the issue on appeal. The petitioner apparently deemed himself not to have been prejudiced by the interjection of such matters, and abandoned this issue. Thus we hold that he has chosen to accept the trial court's original determination of the issue and is barred from relitigating this issue in post-conviction relief proceedings. Edwards v. Thigpen, supra; Wheat v. Thigpen, No. 52,780, decided May 11, 1983 (not yet reported). See Auman v. State, supra.

 Second asserted ground for relief is the jurors' instruction allowing them to consider" committed for pecuniary gain "as an aggravating circumstance in addition to the underlying felony of robbery. This issue was raised at trial, assigned as error and argued on appeal, and thus has been fully and finally adjudicated, barring petitioner Smith's attempt to relitigate it in post-conviction proceedings. Wheat v. State, supra; Edwards v. State, supra; Callahan v. State, supra.

 Petitioner's third assigned ground for post-conviction relief relates to alleged improper prosecutorial closing argument to the effect that the rendition of a life sentence for Smith would in actuality result in his being released on parole in ten years. These comments (as to parole and punishment) by the prosecutor were not objected to by defense counsel, *fn4 and were not asserted on appeal. If, within the context of the trial, petitioner felt such comments to have been improper, and felt himself to be prejudiced thereby, the question of the propriety of such argument could and should have been litigated at trial and subsequently on direct appeal. Having failed to do so, he is barred from raising this issue for the first time in post-conviction relief proceedings. Wheat v. Thigpen, supra; Edwards v. Thigpen, supra. See particularly, Holloway v. State, 261 So. 2d 799, 800 (Miss. 1972).

 Fourth alleged ground for relief relates to his claim that the in-court identification of Smith by witnesses Thomas and Wells was" impermissibly tainted. "This issue was raised in petitioner Smith's supplemental assignment of error and was considered by this Court on direct appeal. Smith v. State, supra, at 574. Having been fully adjudicated against petitioner Smith, this issue is barred from consideration in post-conviction relief proceedings. *fn5 Holloway v. State, supra.

 The next asserted ground for relief urged by petitioner Smith involves the admissibility of evidence seized from Smith's house as the result of a search which was conducted without a search warrant. This issue was raised at trial, and on direct appeal. We exhaustively analyzed and reviewed the circumstances surrounding this search and seizure, concluding that the search was permissible under the emergency exception to the requirement of a search warrant. Therefore, this issue having been completely and thoroughly

 litigated and adjudicated against petitioner Smith, he is barred from attempting to relitigate it in post-conviction relief efforts.

 His next ground for relief is the assertion that the trial court erred in failing to restrain the district attorney's interference with his attempt to impeach a witness on cross-examination. This issue was not raised on direct appeal and is barred.

 Petitioner's next asserted ground for relief is the trial court's rejection of the defense's challenge for cause of a potential juror. This issue was not assigned as error on direct appeal. Petitioner Smith, having therefore accepted the trial court's ruling on the matter, is now barred ...


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