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APRIL 06, 1988




This case, involving a motion for leave to file a petition for post-conviction relief pursuant to Miss. Code Ann. 99-39-1 to -29 (Supp. 1987), comes to the Court following its affirmance of Frank Cabello, Sr.'s conviction and sentence. We deny the motion.

On December 23, 1982, police found Vernon Gurley, a seventy-two year old automobile dealer, lying on his office floor, tied by the hands and feet, with tape "all over his nose and all around his mouth and face." An autopsy revealed strangulation as the cause of death. A nearby safe stood ajar.

 Upon investigation, police arrested Frank Cabello, Sr. as well as his two sons, Frank Cabello, Jr. and Rico Cabello. Thereafter, the Circuit Court of Alcorn County convicted Frank Cabello, Sr., sentencing him to death. This Court affirmed both the conviction and sentence. See Cabello v. State, 471 So. 2d 332 (Miss. 1985).

 Aggrieved by no fewer than twenty-five allegations of error, Cabello filed for post-conviction review.

 I. Cabello was denied the effective assistance of counsel at the first phase of his trial in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States


 Initially, Cabello contends that his case suffered due to the ineffective assistance of counsel during the guilt phase of his trial. No post-conviction motion would be complete without this allegation of error.

 In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), the United States Supreme Court established a two-prong test, required to prove the ineffective assistance of counsel: the defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. See also, Wiley v. State, 517 So. 2d 1373, 1378 (Miss. 1987); King v. State, 503 So. 2d 271, 273 (Miss. 1987); Caldwell v. State, 481 So. 2d 850, 852 (Miss. 1985); Leatherwood v. State, 473 So. 2d 964, 968 (Miss. 1985); Lambert v. State, 462 So. 2d 308, 316 (Miss. 1984); Thames v. State, 454 So. 2d 486, 487 (Miss. 1984). The burden of proof then rests with the movant. Leatherwood, 473 So. 2d at 968.

 Under the first prong, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L.Ed.2d at 694. See also, Wiley, 517 So. 2d at 1378; Caldwell, 481 So. 2d at 852. In short, defense counsel is presumed competent. Jackson v. State, 476 So. 2d 1195, 1204 (Miss. 1985).

 Under the second prong, even if counsel's conduct is "professionally unreasonable," the judgment stands "if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L.Ed.2d at 696. See also, Irving v. State 498 So. 2d 305, 317 (Miss. 1986); Perkins v. State, 487 So. 2d 791, 793 (Miss. 1986); Billiot v. State, 478 So. 2d 1043, 1046 (Miss. 1985). Consequently, the movant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed.2d at 698. See also, Wiley, 517 So. 2d at 1378, Johnson v. State, 511 So. 2d 1333, 1339 (Miss. 1987); Dufour v. State, 483 So. 2d 307, 310 (Miss. 1985). There is no constitutional right then to errorless counsel. Johnson, 511 So. 2d at 1340.

 Within the framework, Cabello cites a variety of errors.

 Trial counsel was inexperienced, carried an unduly heavy caseload, and had severely limited resources to marshal in Cabello's defense.

 Cabello claims that defense counsel rendered ineffective assistance, since counsel was inexperienced, carried a heavy caseload, and enjoyed few resources. In Wiley, 517 So. 2d at 1382, this Court held that "inexperience does not as a matter of law make counsel ineffective." Indeed, as noted above, counsel is presumed competent. Johnson, 476 So. 2d 1195, 1204 (Miss. 1985).

 Moreover, defense counsel's heavy caseload and limited resources are, absent specific instances of error, wholly insufficient in themselves to reverse Cabello's conviction and sentence. Error is denied.

 B. Trial counsel's prior representation of the key prosecution witness created a serious and actual conflict of interest.

 Attached to Cabello's motion is the affidavit of William Odom, who, along with Jon Hill, represented Cabello at trial and on direct appeal. Odom alleges that he, as the county's public defender, spoke to Rico on at least one occasion, prior to the appointment of counsel for Frank Cabello, Sr., Frank, Jr. and Rico. According to Odom's notes from the interview, Rico told Odom that he had stolen a survival rifle from his mother's house, that he and Frank, Jr. had gone to Mr. Gurley's car lot, before the crime, at which time Frank, Jr. had helped Mr. Gurley re-charge a battery, and that Frank Cabello, Sr. had left the motel room in which they were staying "just to go to the car to fetch things." Unfortunately, although Cabello's motion includes fifty-four exhibits, comprising several hundred pages, it fails to contain a copy of these notes.

 At trial, Rico testified that the survival rifle was "one of the guns that we got at my mom's house," that Mr. Gurley had asked him to "take out some jumper cables," and that Frank Cabello, Sr. and Frank, Jr. had left at one point for approximately 30 minutes, at which time Rico saw Frank, Jr. sitting behind the wheel of a "rust-colored, reddish car," which Rico recognized from Mr. Gurley's car lot. Significantly, in no instance did Rico's testimony at trial directly contradict Odom's recollection of his interview.

 In Strickland, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L.Ed.2d at 696, quoting Cuyler v. Sullivan, 446 U.S. 345, 348-50, 100 S. Ct. 1708, 1718-9, 64 L.Ed.2d 333, 346-7 (1980), the United States Supreme Court held that where there is an alleged conflict of interest, "prejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance\rquote" . Here, there is no evidence that counsel experienced an actual conflict of interest, stemming from his interview with Rico, which adversely affected his performance at trial. Error is denied.

 C. Trial counsel failed to move to suppress evidence seized illegally in California.

 Cabello contends that counsel "failed to move to suppress evidence seized illegally" during an automobile search in California. In fact, defense counsel filed a motion to suppress the evidence, and on direct appeal, this Court upheld the search's legality. Cabello, 471 So. 2d at 344. Error is denied.

 D. Trial counsel failed to present a timely motion for a change of venue.

 Cabello argues that counsel's belated motion for a change of venue was an example of its ineffectiveness. In Cabello, 471 So. 2d at 339, this Court noted that the trial judge was within his discretion when he denied the motion, where only five of eighty prospective jurors indicated that they had formed an opinion about the case, and there was no evidence that any of the five prospective jurors actually served.

 In Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985), where the defense counsel had failed to pursue a motion for a change of venue, the Court rejected post-conviction relief, noting that the movant had "not shown prejudice." Similarly, even were the Court to find counsel's performance deficient in this case, there is nothing to suggest that Cabello suffered prejudice as a result. Error is denied.

 E. Trial counsel failed to object to the trial court's curtailment of voir dire.

 Cabello claims that his counsel was ineffective, when it failed to object following the trial judge's order to end voir dire. The record simply does not reflect that the trial judge gave, either expressly or impliedly, any such order:

 BY DEFENSE COUNSEL: Ladies and gentlemen, I thank you for your patience and I want to ask you one final question and think on it before you answer it. Are you sure that you can totally assume this Defendant to be innocent until proven guilty beyond a reasonable doubt by the State of Mississippi?

 Thank you very much.

 Your Honor, that is all we have for cause.

 Indeed, Cabello even admits that his counsel "had prepared no further questions to ask the venire." Error is denied.

 F. Trial counsel failed to challenge certain venirepersons who expressed bias during the voir dire.

 Cabello maintains that counsel's failure to challenge four of seven prospective jurors, who believed that Cabello bore the burden of proof of his guilt, demonstrated ineffectiveness. Since Cabello offered no proof that any of these prospective jurors actually served, there is no evidence of prejudice. Error is denied.

 G. Trial counsel failed to challenge the unconstitutional composition of the juries that indicted and convicted Cabello.

 Cabello contends that counsel was ineffective, when posing no objections to his grand and petit juries, which excluded "cognizable social groups." See, Section XI, infra. In Wiley, 517 So. 2d at 1380, this Court found an absence of error for counsel's failure to raise this issue, where, as here, the case was tried prior to the United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). See also, Gilliard, 462 So. 2d at 714-5. In addition, Cabello himself was not a member of any "cognizable racial group." Batson, 476 U.S. at 96, 106 S. Ct. at 1723, 90 L.Ed.2d at 87. Error is denied.

 H. Trial counsel failed to object to

 improper actions by the prosecution.

 Cabello argues that counsel was ineffective when it failed to object to references of Frank, Jr.'s trial, the fruits of the automobile search, leading questions, and inadmissible hearsay. The Court fully addresses these allegations in Sections I. (N), VII., and XIV, infra.

 Cabello also cites counsel's failure to cross-examine several witnesses. Yet, since there is "no single, particular way to defend a client or to provide effective assistance," and courts are "reluctant to infer from silence an absence of strategy," this Court finds defense counsel's performance neither deficient nor prejudicial. Leatherwood, 473 So. 2d at 969. Error is denied.

 I. Trial counsel failed to move to suppress the purported identification of Cabello by Becky Settlemires.

 Cabello claims that counsel "made only a half-hearted and ineffective motion to suppress the in-court identification" by Settlemires. Nevertheless, on direct appeal, this Court held that Settlemires ' "in-court identification had not been tainted by undue suggestion and there was no substantial likelihood of ...

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