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Booker v. State

Court of Appeals of Mississippi

September 3, 2019

ANTHONY TERRELL BOOKER A/K/A ANTHONY BOOKER A/K/A ROBERT BOOKER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/28/2018

          COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT TRIAL JUDGE: HON. DALE HARKEY

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: STACY L. FERRARO KATHERINE ELIZABETH POOR

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS

          BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

          MCDONALD, J.

         ¶1. In 2004 when he was a sixteen, Anthony Terrell Booker was convicted of capital murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole. His sentence was later vacated pursuant to Miller v. Alabama, 567 U.S. 460 (2012), which abolished "mandatory life without parole" punishments for juveniles. Id. at 465. The Circuit Court of Jackson County conducted a sentencing hearing after Booker allegedly waived resentencing by a jury. The court again sentenced Booker to life without eligibility for parole. He appeals that sentence. Finding that Booker was entitled to resentencing by a jury and that his waiver did not comport with the requirements of Mississippi Code Annotated section 99-19-101 (Rev. 2015), we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In 2003, at the age of sixteen, Booker and three others[1] were indicted for the capital murder of Dorian Johnson, age 52. Prior to trial in May 2004, Booker had been tested by psychologist Dr. John Stoudenmire and found to have an IQ of 65, which indicated mild mental retardation. In light of Atkins v. Virginia, 536 U.S. 304 (2002), which held that executions of mentally retarded people constituted cruel and unusual punishment, the State withdrew its request for the death penalty prior to trial.

         ¶3. Booker's case was severed from those of his co-defendants and separately tried on May 20, 2004. After a three-day trial, a Jackson County jury found Booker guilty. In Booker's appeal of that conviction, this Court described the facts as follows:

On December 30, 2002, Booker, Shawn Davis, Mary Scarbrough, and Desmond Shields were involved in the beating death of Dorian Johnson. At the urging of Scarbrough, Booker, Davis, and Scarbrough met Johnson at a park where they began beating and kicking him. After the beating, the trio placed Johnson in the back of his Jeep and transported him to Vancleave. There the trio, now joined by Shields, continued the beating and took Johnson's Jeep and wallet. After being reported missing by his family, Johnson was found in Vancleave on January 6, 2003. Johnson's principal cause of death was determined to be severe blunt injuries to the head, although contributing causes included several severe cuts to his face and neck, broken ribs, and fluid buildup in his lungs. Booker, Davis, Scarbrough, and Shields were arrested on January 6, 2003, and charged with Johnson's death. After filing a motion for severance on March 4, 2004, Booker was tried for his crime on May 17, 2004, and convicted and sentenced on May 20, 2004.

Booker v. State, 5 So.3d 411, 416 (Miss. Ct. App. 2008), aff'd, 5 So.3d 356 (Miss. 2008).

         ¶4. The guidelines for sentencing a defendant convicted of capital murder are found in Mississippi Code Annotated section 99-19-101 (Rev. 2015). The law allows three options: death, life imprisonment without eligibility for parole or life imprisonment with eligibility for parole. But because Mississippi's parole statutes, specifically Mississippi Code Annotated section 47-7-3(1)(e) (Rev. 2015), prohibit parole for any person convicted of capital murder under section 99-19-101, the only sentence the court could and did give Booker was life imprisonment without eligibility for parole.[2] We affirmed Booker's conviction. Booker v. State, 5 So.3d 411 (¶2) (Miss. Ct. App. 2008) The Mississippi Supreme Court granted his petition for writ of certiorari but affirmed his conviction as well, Booker v. State, 5 So.3d 356 (¶10) (Miss. 2008). The United States Supreme Court denied his petition for a writ of certiorari. Booker v. Mississippi, 558 U.S. 1150 (2010). ¶5. In 2012, the United States Supreme Court decided Miller v. Alabama and held that mandatory life imprisonment without eligibility for parole for people under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition against cruel and unusual punishment. Miller, 567 U.S. at 479. The Mississippi Supreme Court applied Miller in Parker v. State, 119 So.3d 987 (2013), and vacated a sentence of life without eligibility for parole given to a juvenile. Parker, 119 So.3d at 998 (¶26). It remanded the case for determination of whether Parker should be sentenced to life imprisonment without eligibility for parole or life with eligibility for parole notwithstanding the provisions of Mississippi Code Section 47-7-3(1)(e) (Rev. 2015).

         ¶6. After Parker, Booker filed an application with the Mississippi Supreme Court for leave to file a motion to vacate his sentence, which the court granted insofar as he was granted leave to file a motion for post-conviction relief in the circuit court of Jackson County. Booker filed his application for post-conviction relief with the circuit court and on October 16, 2015, the court entered an agreed order setting aside Booker's sentence of life without eligibility for parole pursuant to Miller.

         ¶7. On April 27, 2016, Booker filed a motion to impose a sentence of life with eligibility for parole in the Circuit Court of Jackson County. Prior to the hearing on his motion, Booker sought funds from the court to employ Dr. Tarlanda McDaniel-Gooden, owner of HBMc Capital Defense Mitigation Services in Pensacola, Florida, to conduct a mitigation investigation. The court granted Booker's request in part.[3]

         ¶8. Booker also filed a motion to impanel a jury for the resentencing hearing. But the motion was not considered prior to the sentencing hearing. At the commencement of the hearing, Booker's counsel announced that he was waiving consideration of the matter by a jury. The court did not question Booker to determine whether the waiver was knowingly ...


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