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LARRY ALAN MERRITT v. STATE OF MISSISSIPPI

NOVEMBER 04, 1987

LARRY ALAN MERRITT
v.
STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Today, Larry Alan Merritt charges error in denial of his claim for post-conviction relief from a final judgment that he murdered his two-year-old daughter. Central to the case is a claim that he was denied effective assistance of counsel at his trial. Beyond this, Merritt seeks to present issues that either were or ought to have been decided on his original appeal, issues which for that reason are precluded from review here. For the reasons noted below, we affirm the Circuit Court's denial of post-conviction relief.

 II.

 On December 12, 1975, Merritt was found guilty in the Circuit Court of Marion County, Mississippi, of the murder of his daughter, Shannon Merritt. The essence of the verdict is that Merritt took out a $25,000.00 insurance policy on the life of his daughter and then suffocated her to collect the insurance proceeds. Merritt's conviction was affirmed on direct appeal. See Merritt v. State, 339 So.2d 1366 (Miss.1976), wherein the facts of the case are set forth more fully and, for that reason, need not be recounted here.

 On October 7, 1981, this Court granted Merritt's Application for Leave to File a Complaint for Post-Conviction Relief and remanded same to the Circuit Court "for the limited purpose of inquiring into the charge of ineffective assistance of counsel." The Circuit Court then held the prescribed hearing and on April 4, 1983, entered final judgment that Merritt's claim for post-conviction relief should be denied. from that ruling, Merritt prosecutes the present appeal.

 III.

 Merritt urges that the Circuit Court erred in rejecting his claim of ineffective assistance of counsel. The record reflects that the Circuit Court held a full evidentiary hearing on this question and then filed an opinion containing extensive findings of fact and conclusions of law.

 At his original murder trial, Merritt was represented and defended by retained counsel, Sebe Dale, Jr., Esq., of the Columbia, Mississippi, Bar. Merritt charges that Dale's performance was ineffective in three general areas: (1) failure to conduct an adequate pre-trial investigation; (2) failure to file certain pre-trial motions: and (3) certain omissions in trial procedures.

 Under the general heading of failure to conduct an adequate pre-trial investigation, Merritt first charges that his attorney failed to investigate the background of his former wife, Toddie Lynn Merritt (Burns). To be sure, she was an important prosecution witness at Merritt's murder trial. The Court below observed that "without the wife's testimony . . . the case would never have gone to the jury." The evidence at the post-conviction hearing, however, reflected that Merritt's attorney had known his former wife's family for a number of years and that he knew her mother and father. He had interviewed her when he represented Merritt in a divorce action brought by her. At the post-conviction hearing Merritt failed to show how such additional investigation would have significantly aided his cause at trial.

 Second, counsel is charged with failure to obtain the services of a forensic pathologist. This charge is made in the context of the fact that the cause of death was an important issue at trial. In the first place, there is no law requiring employment of a forensic pathologist as a prerequisite to defense counsel being considered constitutionally effective. As a practical matter, defense counsel had a cousin who was a pathologist practicing in McComb, Mississippi. Counsel did in fact consult with his

 cousin and discussed reports of the prosecution's pathologist and was advised that "he [counsel's cousin] saw nothing which would be of any benefit."

 Third, Merritt charges that counsel failed to interview the prosecution's witnesses. At trial in 1975, the prosecution called Toddie Lynn Merritt (Burns), Joe Peavy, Mrs. Bill Russell, C. H. Tyrone, Milton S. Magee, Dr. J. Larry Smith, Dr. Sergio Gonzales, and O. L. (Buddy) Anderson. Counsel interviewed Mrs. Merritt (Burns), Peavy, Tyrone, Magee, and Smith. He attempted to talk with Anderson, but Anderson refused (although counsel had the opportunity to cross-examine Anderson at the preliminary hearing). Counsel adequately familiarized himself with the report of Dr. Gonzales. Counsel did not talk with Mrs. Russell who lived in Grand Isle, Louisiana. Mrs. Russell offered no testimony which in any way surprised the defense and hence, Merritt suffered no harm from counsel's failure to interview her.

 In the end, the Circuit Court found "that counsel did conduct an adequate pre-trial investigation into the potential testimony of the State's witnesses with the exception of Mrs. Russell, . . . [and that] no ...


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