DATE OF JUDGMENT: 3/03/93 TRIAL JUDGE: HON. JAMES C. SUMNER COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
The opinion of the court was delivered by: McRAE, Justice
NATURE OF THE CASE: CIVIL - DEATH PENALTY (POST CONVICTION RELIEF)
DISPOSITION DENIED - 03/12/98
MOTION FOR REHEARING FILED:
¶1. William Joseph Holly was convicted in March, 1993 of capital murder for the robbery and murder of David Norwood, Jr. in Grenada County. His conviction and death sentence were affirmed by this Court in Holly v. State, 671 So. 2d 32 (Miss. 1996), cert. denied, Holly v. Mississippi, 116 S. Ct. 2565 (1996). Holly filed his Application for Leave to File Motion to Vacate Judgment and Death Sentence in this Court on July 2, 1997, raising some eighteen assignments of error. While many of the issues are procedurally barred, we consider them to the extent necessary to address Holly's claims of ineffective assistance of counsel. Finding that he has failed to present a substantial showing of the denial of a state or federal right or that his attorney's performance at trial was constitutionally deficient, we deny his application for post-conviction relief.
¶2. On July 12, 1992, seventeen year-old William Holly, along with two other teenagers, Tommy Benefield and Waylon Kendall, robbed and killed David Norwood, Jr. Holly was eventually apprehended in Decataur, Illinois, following a shoot-out with police in a shopping center parking lot. He was tried for capital murder, kidnaping and grand larceny and was convicted on all counts. On direct appeal, this Court affirmed the capital murder and kidnaping convictions and sentences, but reversed and vacated the grand larceny charge. Holly, 671 So.2d at 34.
¶3. In his petition for post-conviction relief, Holly raises the following issues for this Court's consideration:
I. THIS DEATH SENTENCE RESTS IN PART UPON A CONVICTION OBTAINED IN ILLINOIS BY MEANS OF A GUILTY PLEA MADE WITHOUT UNDERSTANDING EITHER BY HOLLY OR HIS ILLINOIS COUNSEL OF THE FACTUAL AND LEGAL CONSEQUENCES THEREOF IN CONTEXT OF THIS CAPITAL PROCEEDING, IN VIOLATION OF JOHNSON v. MISSISSIPPI.
II. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT THE UNDERLYING FACTS OF A PRIOR FELONY CONVICTION WHERE SUCH EVIDENCE WAS IRRELEVANT AND WITHOUT PROBATIVE VALUE.
III. THE PROSECUTION IMPROPERLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY IN THE SENTENCING PHASE.
IV. JURY INSTRUCTION S-5 AT THE GUILT PHASE RELIEVED THE STATE OF THE BURDEN OF PROVING INTENT TO COMMIT THE UNDERLYING FELONY, THEREBY VIOLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND STATE LAW.
V. THE LEGISLATIVE MANDATE AS TO WHAT FACTORS JUSTIFY IMPOSITION OF A DEATH SENTENCE WAS FLOUTED WHEN THE PROSECUTION RELIED ON ARBITRARY FACTORS TO ADVOCATE DEATH, VIOLATING WILLIAM HOLLY'S RIGHTS UNDER MISSISSIPPI LAW AND THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.
VI. THE SUBMISSION OF THE "ROBBERY" AGGRAVATING CIRCUMSTANCE VIOLATED STATE LAW AND THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.
VII. MISSISSIPPI LAW FAILS TO AUTHORIZE IMPOSITION OF THE DEATH PENALTY FOR CRIMES COMMITTED BY JUVENILES, HENCE THE DEATH SENTENCE IMPOSED ON WILLIAM HOLLY IS INVALID UNDER THE STATE AND FEDERAL CONSTITUTIONS AND MUST BE VACATED THE DEATH PENALTY FOR A JUVENILE WITHOUT ANY PARTICULARIZED PRE-TRIAL FINDINGS BEING MADE AS TO HIS MATURITY AND MORAL RESPONSIBILITY, VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 3, § 28 OF THE MISSISSIPPI CONSTITUTION OF 1890.
VIII. THE SENTENCING INSTRUCTIONS AND PROSECUTION'S ARGUMENT VIOLATED THE EIGHTH AMENDMENT AND STATE LAW BY PREVENTING THE JURY FROM CONSIDERING RELEVANT MITIGATING CIRCUMSTANCES.
IX. HOLLY'S STATE AND FEDERAL CONSTITUTIONAL RIGHT NOT TO BE TWICE PUT IN JEOPARDY FOR THE SAME OFFENSE WAS VIOLATED WHEN THE JURY WAS ALLOWED TO CONVICT HIM OF BOTH MURDER DURING THE COMMISSION OF A ROBBERY AND THE LESSER INCLUDED OFFENSE TO ROBBERY OF GRAND LARCENY - DIRECT APPEAL DISMISSAL OF COUNT ON GRAND LARCENY DID NOT CURE ERROR IN THIS DEATH CASE.
X. THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE CONVICTION AND DEATH SENTENCE.
XI. THE STATE ABUSED PROSECUTORIAL DISCRETION IN THIS CASE AND VIOLATED HOLLY'S SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS BY SCHEDULING THREE CAPITAL TRIALS WITHIN A TWO MONTH PERIOD IN GRENADA COUNTY INVOLVING WHITE AND BLACK DEFENDANTS WITH NO SAFEGUARDS FOR ANY OF THEM WITH RESPECT TO RACIAL OR LOGISTIC IMPLICATIONS IN THE LIMITED JURY POOL OF THE RURAL COUNTY.
XII. A VERBATIM RECORD WAS NOT MAINTAINED IN THIS CAPITAL PROCEEDING VIOLATING HOLLY'S RIGHTS TO A FULL AND FAIR REVIEW BY THE SUPREME COURT OF MISSISSIPPI IN VIOLATION OF HIS RIGHTS UNDER THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS.
XIII. THE TRIAL COURT VIOLATED HOLLY'S RIGHT TO A FAIR TRIAL AND HIS RIGHT TO COUNSEL BY LIMITING THE TIME AVAILABLE FOR HIS COUNSEL TO ARGUE ISSUES TO THE JURY.
XIV. SENTENCING INSTRUCTIONS TO THE JURY ALLOWED IT TO CONSIDER AN AGGRAVATING CIRCUMSTANCE NOT PROVED, A CAPITAL CONVICTION IN THE STATE OF ILLINOIS.
XV. THE PROSECUTION ENGAGED IN SUCH EGREGIOUS MISCONDUCT WITH RESPECT TO PRESENTATION OF EVIDENCE, CROSS-EXAMINATION OF WITNESSES AND ARGUMENT TO THE JURY TO CONSTITUTE A DENIAL OF DUE PROCESS OF LAW UNDER CONSTITUTIONS OF THE STATE OF MISSISSIPPI AND THE UNITED STATES.
XVI. THE MANNER IN WHICH MITIGATING CIRCUMSTANCES WERE SUBMITTED TO THE JURY RESULTED IN A DENIAL OF HOLLY'S CONSTITUTIONAL RIGHTS UNDER THE LAWS OF MISSISSIPPI AND THE UNITED STATES.
XVII. COUNSEL WAS INEFFECTIVE IN THE GUILT PHASE OF THE TRIAL, FAILING TO OBJECT TO PREJUDICIAL QUESTIONS BY THE PROSECUTOR, FAILING TO OBJECT TO INSTRUCTIONS GIVEN BY THE COURT, FAILING TO PURSUE AND PRESERVE PRETRIAL MOTIONS EITHER OVERRULED OR IGNORED BY THE COURT, FAILING TO OBJECT TO PREJUDICIAL ARGUMENT BY THE PROSECUTOR, FAILING TO PRESERVE ERROR FOUND PROCEDURALLY DEFAULTED ON DIRECT APPEAL, AND FAILING TO ADEQUATELY INVESTIGATE THE CASE.
XVIII. HOLLY'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCING PHASE WAS VIOLATED BY HIS ATTORNEY'S FAILURE TO INVESTIGATE, PREPARE AND PRESENT MITIGATION EVIDENCE, FAILING TO OBJECT TO INFLAMMATORY ARGUMENT, FAILING TO OBJECT TO PREJUDICIAL QUESTIONS BY THE PROSECUTOR, FAILING TO OBJECT TO INSTRUCTIONS GIVEN BY THE COURT, FAILING TO PURSUE AND PRESERVE PRETRIAL MOTIONS EITHER OVERRULED OR IGNORED BY THE COURT, AND FAILING TO PRESERVE ERROR FOUND PROCEDURALLY DEFAULTED ON DIRECT APPEAL.
ARGUMENTS AND DISCUSSION OF THE LAW
¶4. Holly argues first that his capital murder conviction is based in part on guilty pleas entered in Illinois. He asserts that those pleas were not knowingly entered because they were taken without knowing how they would or could be used in his subsequent capital murder trial in Mississippi. Holly acknowledges that the proper place to attack the Illinois convictions is by post-conviction remedy in Illinois state court, which he indicated he will pursue, informing this Court of the disposition. Johnson v. ...