DATE OF JUDGMENT: 10/18/2012.
COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CIRCUIT
COURT, TRIAL JUDGE: HON. C.E. MORGAN III.
FOR APPELLANT: CURTIS DAVIS JR. (Pro se).
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE.
BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
[¶1] Curtis Davis Jr. appeals the denial of his second post-conviction-relief (PCR) motion, seeking relief based on newly discovered DNA evidence. We agree with the trial court's finding that Davis's motion is barred as a successive writ and affirm.
FACTS AND PROCEDURAL HISTORY
[¶2] Davis was indicted for the capital murder of his father-in-law, William McCuiston, and for possession of a firearm by a convicted felon. On August 31, 2010, Davis pled guilty to manslaughter and possession of a firearm by a convicted felon. He was sentenced to twenty years and ten years, respectively, with the sentences to run consecutively.
[¶3] On May 24, 2011, Davis's counsel filed a PCR motion in the Montgomery County Circuit Court, asserting that Davis's conviction and sentences should be vacated based on newly discovered DNA evidence. The DNA evidence was retrieved from swabs taken from a gun, phone, shoe, and various other objects found at the crime scene. The test results excluded Davis as a contributor to the samples. Davis argued he would have chosen to go to trial based on the lack of
DNA evidence had he known the results prior to his plea, since the State had no other evidence linking him to the crime. He also argued his cousin, Betty Young, committed the murder, as evidenced by her knowledge of the gun's location after the murder and her financial motive.
[¶4] The trial court denied the motion, finding Davis's arguments either had been waived or were without merit. First, the trial court noted that on August 5, 2010, prior to his plea, Davis had moved to compel the DNA test results. His motion argued that the State had violated discovery rules by failing to provide him with the results. Crime lab records show the results became available on August 27, 2010, four days before Davis entered his plea. The trial court found that because the results were available prior to his plea, they were not newly discovered evidence. The trial court further found there was no evidence the State suppressed the test results, and all arguments contained in the motion to compel were waived by Davis's plea. As the trial court found, when Davis pled guilty, " he waived his positions raised in his [m]otions to [s]uppress [his confession] and [c]ompel" the DNA results. The trial court likewise found Davis's " allegations against Betty Young do not constitute newly discovered evidence and were waived by the pleas."
[¶5] Notwithstanding, the trial court examined the DNA test results and found no merit to Davis's claim that the results would have materially affected his plea. The swabs taken from the phone revealed the victim's DNA, which the trial court noted was " not unusual considering the homicide took place in [the victim's] home." The other swabs produced no DNA results. The DNA results did not exclude Davis as the perpetrator. They only excluded him as a contributor to the samples. The trial court found that the absence of DNA evidence did not exonerate Davis, and that while " there is no forensic evidence linking [Davis] with the crime, there are his confession and statements in the plea colloquy that do." Davis's PCR motion was denied on June 8, 2011. No appeal was taken of the trial court's decision.
[¶6] On October 10, 2012, Davis filed a pro se petition entitled " Writ of Mandamus," which the trial court treated as a PCR motion. Davis again argued he was entitled to relief based on his discovery of the DNA test results after his plea. He argued the DNA test results were newly discovered evidence, his counsel was ineffective for failing to advise him that he could wait on the DNA test results before pleading guilty, and his confession was coerced. On October 19, 2012, the trial court denied the motion as successive-writ barred. Davis filed a motion to reconsider, which was also denied.
[¶7] Davis appeals, raising the following issues: (1) the trial court erred in denying his PCR motion when there was newly discovered exculpatory evidence; (2) the trial court erred in finding his PCR motion successive-writ barred; (3) his attorney was ineffective for failing to advise him of his right to wait on the DNA results; and (4) his due-process rights were violated because the State failed to disclose the DNA test results. We find no error and affirm.
STANDARD OF REVIEW
[¶8] The decision to deny a PCR motion will not be disturbed unless clearly
erroneous. Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss. 2010). Questions of law ...