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06/29/91 JIMMIE MACK v. STATE MISSISSIPPI

June 29, 1991

JIMMIE MACK
v.
STATE OF MISSISSIPPI



EN Banc.

The opinion of the court was delivered by: By: Marvin White, Jr.

TRIAL JUDGE: HON. ELZY J. SMITH, JR.

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

DISTRICT ATTORNEY: LAWRENCE Y. MELLEN

NATURE OF THE CASE: CIVIL - DEATH PENALTY (POST CONVICTION RELIEF)

DISPOSITION APPLICATION FOR POST-CONVICTION RELIEF DENIED - 5/14/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

SMITH, JUSTICE, FOR THE COURT:

¶1. On June 20, 1990, Jimmie Mack, Robert Washington and Percy Monroe drove to the home of Mack's aunt, Mrs. Dawkins, to ask for money. Mrs. Dawkins replied that she had none and Mack then inquired if Henry Fulton, a neighbor, was home. Mack and the others drove to Fulton's house and Mack stated that he would sell a jack to Fulton. Monroe testified that Mack struck Fulton with an iron pipe and that Mack and Washington proceeded to burglarize Fulton's home. Monroe testified that, after the stolen goods were loaded into the truck, Mack noticed that Fulton was still alive. Monroe further testified that Mack announced, "I'm not leaving any witnesses," and that Mack again picked up the iron pipe and beat Fulton's head until his skull burst open. The trio loaded the body into the truck and then dumped it in a bushy area alongside the road.

¶2. Jimmie Mack and his two accomplices were indicted for the capital murder of Henry Fulton and a jury found him guilty after a six-day trial. At the sentencing phase, the jury returned a verdict of death by lethal injection. Mack's conviction and sentence were affirmed by this Court on direct appeal. Mack v. State, 650 So. 2d 1289 (Miss. 1994). A petition for writ of certiorari to the U.S. Supreme Court was denied in October 1995 but a federal district court stayed the execution and appointed counsel to pursue federal habeas relief. Mack's "pro se" application for post-conviction collateral relief was filed in March of 1997 and the State filed its response in June of 1997. Mack next filed a motion to dismiss his collateral appeal in October of 1997. Clive Stafford Smith most recently wrote this Court to announce that Mack does not wish to dismiss his petition and to request that Mack's case be stayed pending Disposition of a federal class action suit on behalf of death row inmates. The suit challenges the constitutionality of failing to appoint counsel in capital post-conviction proceedings. Smith asserts that he does not represent Mack for post-conviction purposes but states that he plans to add Mack as a plaintiff in the § 1983 action. As a practical matter, the execution is already stayed and there is no need to stay consideration of the application for post-conviction relief. Further, Mack has not requested a stay and Smith does not represent him before this Court. Ultimately, Mack pro se, filed a motion stating that he did not want to dismiss his PCR petition.

¶3. We find that most of Mack's claims are procedurally barred as they have already been decided on direct appeal (or could have been raised at that time) and that the remaining claims of ineffective assistance of counsel are without merit. Mack's petition can best be described as skeletal. It is a laundry list of issues with no supporting affidavits, argument or citations of authority. We therefore deny the application for post-conviction collateral relief. The request for appointment of counsel is also denied because Mack has no state or federal constitutional right to appointed counsel in post- conviction proceedings. Lockett v. State, 614 So. 2d 888, 897 (Miss. 1992); Moore v. State, 587 So. 2d 1193, 1195 (Miss. 1991).

Discussion of Law I.

¶4. Mack lists forty-three claims as grounds for post-conviction relief. The first fifteen claims concern the alleged ineffective assistance of counsel at both the trial and appellate level.

¶5. At trial, Mack was represented by appointed counsel, Thomas H. Pearson and Raymond Wong. Mack was represented on direct appeal by Wong, James W. Craig and Andre de Gruy. There is a presumption that defense counsel is competent. Johnson v. State, 476 So. 2d 1195, 1204 (Miss. 1985). Further, there is no constitutional entitlement to error- free representation. Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984).

¶6. The test is two pronged: The defendant must demonstrate that his counsel's performance was deficient, and that the deficiency prejudiced the defense of the case. Washington v. State, 620 So. 2d 966, 970 (Miss. 1993). "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984)(quoting Strickland, 466 U.S. at 687). As to the second prong, the claimant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. . . . '" Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991). Mack raises the following claims.

I. I WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCING PHASE OF THE TRIAL.

¶7. This is the extent of Mack's first claim and there is no further explanation or argument. Miss. Code Ann. § 99-39-9(1)(c)(1994) requires that a motion for post-conviction relief contain a concise statement of the claims or grounds upon which the motion is based. Mack's first claim satisfies neither the statute nor the requirements of Strickland. This Court requires a movant to allege with specificity and detail a post-conviction claim of ineffective assistance of counsel. Brooks v. State, 573 So. 2d 1350, 1354 (Miss. 1990). Miss. Code Ann. § 99-39- 9(1)(e) (1994) requires that a movant's claims be supported by affidavits. Mack's petition, for the most part, makes bare assertions which are supported by no affidavits. Failure to comply with this portion of the statute is sufficient reason to deny a post-conviction claim of ineffective assistance of counsel. See Smith v. State, 490 So. 2d 860 (Miss. 1986). This improperly pled claim is without merit and is denied.

II. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO LOCATE MITIGATION WITNESSES, FAILING TO INVESTIGATE MITIGATING EVIDENCE, FAILING TO PREPARE THE FEW WITNESSES WHOM HE WAS ABLE TO LOCATE, AND SUCH FAILURES RESULTED IN DENYING THE JURY THE BENEFIT OF COMPELLING MITIGATING EVIDENCE.

¶8. Mack's second claim is also unsupported by statutorily required affidavits and, further, is unsupported by the record. Trial counsel presented nine mitigation witnesses at the sentencing phase of the trial. Mack fails to disclose what potential witnesses were not located. The record shows that the witnesses offered substantive mitigation testimony. Jamie Cummins, Mack's junior high school principal, testified both as to Mack's impoverished background and his history as a special education student with behavioral problems. The assistant principal at Mack's junior high school, Henry Kelly, also testified as to Mack's poor home life and problems at school. James Cox, a junior high school football coach, gave similar testimony and told the jury that Mack would sometimes wear the same clothes to school several days a week. Mack's brother testified that their family was ridiculed when they were growing up because of poor personal hygiene. Mack's sister and aunt also testified concerning his home life. Mack's former girlfriend testified as to his non-violent Disposition. Mack's neighbor, Lee Dorothy Dawkins, also testified as to Mack's up-bringing and poor living conditions. Mack's mother was also called as a mitigation witness. It seems abundantly clear from the record that trial counsel did in fact investigate, locate and adequately prepare mitigation witnesses.

¶9. Mack does not identify what other witnesses should have been called and what their testimony might have been. Where a motion for post- conviction relief makes no showing that interviewing additional witnesses would have produced a different outcome, the movant has failed to make out a claim of ineffective assistance of counsel. United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989); Foster v. State, 687 So. 2d 1124, 1134 (Miss. 1996). This claim is without merit and is denied.

III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT ADEQUATE PSYCHOLOGICAL EVIDENCE CONCERNING STATUTORY MITIGATING CIRCUMSTANCES.

¶10. Mack offers neither the affidavit nor even the name of any psychologist or other professional who has knowledge of any such psychological evidence which might bear on mitigation. Mack was evaluated by a court-appointed psychologist prior to trial but counsel decided not to offer the report into evidence and the trial court ordered that the report be sealed. The decision to introduce or withhold a psychiatric report is usually considered to be a tactical decision. McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir. 1986).

¶11. Counsel's decision not to investigate psychological evidence does not deprive a defendant of effective assistance of counsel where counsel could have Judged such a report harmful. Wiley v. State, 517 So. 2d 1373, 1380 (Miss. 1987), cert. denied 486 U.S. 1036, reh'g denied 487 U.S. 1246 (1988). Given that counsel asked the trial court to seal the report, it can be inferred that counsel believed that psychological evidence would have been damaging. Mack's contention does not meet the Strickland test and is improperly pled. This claim is without merit and is denied.

IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO SECURE RECORDS. THIS FAILURE TO PRESENT PRISON, EDUCATIONAL AND PSYCHOLOGICAL RECORDS WHICH WERE RELEVANT TO MITIGATING CIRCUMSTANCES VIOLATES DUE PROCESS. THIS FAILURE TO PRESENT ADEQUATE RECORDS ALSO VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

¶12. Mack makes no showing that any such records exist or that they contain any mitigating evidence. Mack further fails to identify the nature of any such evidence. Trial counsel did, in fact, call junior high school officials as mitigation witnesses who testified as to Mack's status as special education student who performed poorly in school. The State called Mack's probation officer as witness at the sentencing phase and trial counsel elicited on cross-examination that Mack had presented no supervisory problems. This Court has held that counsel is not ineffective for failing to further investigate psychological reports where evidence of the defendant's minimal education and deprived childhood were presented to the jury. Cole v. State, 666 So. 2d 767, 776 (Miss. 1995). This claim is without merit and is denied.

V. TRIAL COUNSEL DENIED PETITIONER THE RIGHT TO ALLOCUTION, AND THIS FAILURE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶13. The record clearly shows that Mack was advised by the trial court of his right to testify and did, in fact, take the witness stand in his own behalf at the guilt/innocence phase of his trial. The record further shows that Mack was again advised by the trial court of his right to testify before the sentencing phase of his trial although he did not exercise that right. Before the sentencing phase, the following colloquy took place:

BY THE COURT: Do you understand this is a different phase?

This is to determine if there are any circumstances that would warrant them not giving the death penalty. Do you understand that?

BY THE DEFENDANT: Yes, sir.

BY THE COURT: Do you want to consult with your attorneys, or have you made your final decision?

BY THE DEFENDANT: I have made my final decision.

BY THE COURT: And what is that decision?

BY THE DEFENDANT: I ain't going to take the stand. (emphasis added).

ΒΆ14. Mack's assertion is unsupported and specious. The claim is patently ...


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