Kevin Scott v. State of Mississippi ( 1998 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-DR-01290-SCT
KEVIN SCOTT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/23/1998
TRIAL JUDGE: HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JAMES W. CRAIG
JEANE A. THOMAS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY: LAURENCE Y. MELLEN
NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST
CONVICTION
DISPOSITION: PETITION FOR POST-CONVICTION
RELIEF IS GRANTED IN PART AND
DENIED IN PART - 10/05/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY AND STATEMENT OF THE FACTS
¶1. Kevin Scott (Scott) and Leroy Lynch confronted seventy-four-year-old Richard Lee
in the carport of his home. When Lee’s wife, Lurline, heard voices, she opened the door of
their home and shots were fired at her. She was able to slam the door and initiate a call to
the police. Lee was shot, and Scott fled the scene in Lee’s car. Lee later died from his
wounds. When he was caught, Scott confessed to the shooting, but he later recanted. Scott
claimed that Lynch was the shooter, and he had fled in the car only after Lynch shot Lee.
¶2. Scott was charged with the capital murder of Lee, with the underlying felony of
robbery. Scott was also charged with aggravated assault of Lurline. Scott was convicted of
both charges and, after a separate sentencing hearing, was sentenced to death for the capital
murder and ten years on the aggravated assault charge. This Court affirmed the conviction
and sentence on direct appeal. Scott v. State, 878 So. 2d 933 (Miss. 2004). Scott now files
this application for post-conviction relief in which he raises twelve claims for relief. We
grant this application for post-conviction relief in part and deny it in part. The sole issue of
whether Scott is mentally retardation is remanded to the trial court for an evidentiary hearing.
All other issues raised by Scott on post-conviction relief are denied. Each issue raised by
Scott is addressed.
ANALYSIS
I. Mental retardation
¶3. Scott argues that he is mentally retarded, and therefore, he should not be executed
pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) and
Chase v. State, 873 So. 2d 1013 (Miss. 2004). Scott asserts that he is entitled to a mental
retardation evaluation by the trial court. Scott’s application is lengthy on the mental
retardation issue, citing problems at and from birth, a family history of mental illness, years
2
spent in special education, and numerous assessment and functioning tests. Scott includes
two affidavits by experts, Dr. L. Mulry Tetlow and Dr. Marc Zimmerman, in his application
on post-conviction relief which state that there is a reasonable basis to believe that upon
further testing Scott would be found to be mentally retarded. Scott also includes affidavits
from teachers, family, and friends on the subject of Scott’s deficiencies in adaptive
functioning. In December, 2005, Scott was granted leave for an evaluation by Dr.
Zimmerman. After a battery of tests, Dr. Zimmerman opined that Scott is mentally retarded
as that term is defined by the American Association of Mental Retardation (AAMR) and the
Diagnostic and Statistical Manual, fourth edition (DSM-IV-TR).
¶4. On direct appeal, this Court found that there was insufficient evidence in the record
to remand for a hearing on the issue of mental retardation, or a Chase hearing. Chase v.
State, 873 So. 2d at 1028-29. In Scott, 878 So. 2d at 948, this Court explained how Chase
applied in this case:
In response to Atkins, we recently handed down Chase v. State, 873 So.
2d 1013, (Miss. 2004), in which we set forth the criteria and procedure to be
used both in applying for, and conducting, a hearing for a determination of
mental retardation. For criminal defendants who file applications for
post-conviction relief subsequent to Chase, a defendant must provide "an
affidavit from at least one expert . . . who opines, to a reasonable degree of
certainty, that: (1) the defendant has a combined Intelligence Quotient ("IQ")
of 75 or below, and; (2) in the opinion of the expert, there is a reasonable basis
to believe that, upon further testing, the defendant will be found to be mentally
retarded, as defined [in the Chase opinion]." Id.Scott, 878 So. 2d at 948. In Chase, 873 So. 2d at 1029, this Court held:
3
With the sole exception discussed below, no defendant may be granted a
hearing on the issue of Eighth Amendment protection from execution, due to
alleged mental retardation unless, prior to the expiration of the deadline set by
the trial court for filing motions, the defendant shall have filed with the trial
court a motion, seeking such hearing. The defendant must attach to the motion
an affidavit from at least one expert, qualified as described above, who opines,
to a reasonable degree of certainty, that: (1) the defendant has a combined
Intelligence Quotient ("IQ") of 75 or below, and; (2) in the opinion of the
expert, there is a reasonable basis to believe that, upon further testing, the
defendant will be found to be mentally retarded, as defined herein.
Chase, 873 So. 2d at 1029. However, applying Chase in Scott’s direct appeal, this Court
stated the following:
Thus, on the record before us, Scott has not established that he is entitled to an
[sic] Chase hearing. However, should Scott provide the appropriate affidavit
which complies with the requirements set forth in Chase as an attachment to
an application for post conviction relief, pursuant to the Mississippi Uniform
Post-Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-39-1 et seq., he
could be entitled to a hearing as provided in Chase.
Scott, 878 So. 2d at 948.
¶5. The State counters that while Scott has now presented such affidavits, it disputes the
findings and methods of Dr. Zimmerman and points out the Dr. Zimmerman failed to
administer the Minnesota Multiphasic Personality Inventory II (MMPI-II). Scott argues that
the MMPI-II is not an appropriate test for individuals with mental retardation. Scott also
notes in his rebuttal that Dr. Zimmerman has explained why the MMPI-II test would be of
“questionable value” because Scott is unable to read beyond a third-grade level. However,
this Court has not disregarded the MMPI-II test. The MMPI-II test is required prior to an
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adjudication on a claim of mental retardation pursuant to Atkins and Chase. See Jordan,
918 So. 2d at 660; Chase, 873 So. 2d at 1029.
¶6. We find that Scott’s post-conviction petition with its accompanying application
provided the affidavits this Court deemed necessary to warrant a Chase hearing on the issue
of mental retardation. Scott has provided the necessary information specified in Chase for
a remand by this Court to the trial court for mental retardation hearing. However, prior to
an adjudication on the mental retardation issue, Scott must obtain a MMPI-II test. Therefore,
this issue should be remanded to the Bolivar County Circuit Court for a mental retardation
hearing.
II. Prosecution’s conflict of interest
¶7. Brenda F. Mitchell, an assistant district attorney in Bolivar County, Mississippi,
participated in Scott’s prosecution.1 Two and a half years prior to Scott’s capital murder
trial, Mitchell worked as an attorney at North Mississippi Rural Legal Services. While
employed with Legal services, Mitchell represented Scott at a hearing before an
administrative law judge at the Social Security Administration. At the time of the social
security hearing, Scott was 15-years old. He was declared mentally retarded and mentally
disabled and awarded supplemental security income.
1
Scott alleges that Mitchell participated in the case from indictment in 1996, through
the end of trial in October 1998. Her participation included, but was not limited to,
responding to defense motions, submitting discovery disclosures, conducting direct
examination of witnesses at trial and delivering closing argument.
5
¶8. Scott asserts Mitchell’s participation in his prosecution was an impermissible conflict
of interest where the criminal prosecution was substantially related to the prior civil suit and
where Mitchell used confidential information gained through her prior representation of
Scott. Gray v. State, 469 So. 2d 1252, 1254 (Miss. 1985); Sharplin v. State, 330 So. 2d 591,
594 (Miss. 1976).
¶9. Scott asserts the social security proceedings concerned his mental capacity, which was
a central issue at his murder trial. Scott claims that as his attorney in the social security
proceedings, Mitchell had access to his confidential files, records, mental health evaluations,
and medical reports, as well as, access to his mother, aunt, and other family members. Scott
asserts Mitchell had an ongoing obligation to maintain the confidentiality of attorney-client
privilege. Scott also points out that, as his advocate, Mitchell argued Scott suffered from
mental retardation.
¶10. Scott asserts that the State cannot show that Mitchell had absolutely no participation
in the case, divulged no confidential information, and notified the defense promptly of this
conflict.
¶11. Scott argues this claim is properly raised for the first time in the petition for post-
conviction relief where the conflict was first discovered by post-conviction counsel in April,
2005. Scott asserts the conflict entitles him to relief where this Court has ordered new trials
in cases involving lesser sentences for such conflicts. See Gray, 469 So. 2d at 1255;
Sharplin, 330 So.2d at 596; Aldridge, 583 So.2d 203 (Miss. 1991). See also Wilkins v.
6
Bowersox, 933 F. Supp. 1496 (W.D. Mo. 1996), aff’d, 145 F.3d 1006 (8 th Cir. 1998). Lastly,
Scott argues that the prosecution’s failure to disclose this conflict is a violation of Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
¶12. The State argues this issue is procedurally barred pursuant to Miss. Code Ann. § 99-
39-21(1) because it was not raised at trial or on direct appeal. The State asserts, too, that
failure to move for Mitchell’s disqualification acts as waiver. The State notes there was
testimony at trial regarding Scott’s testing for social security disability and argues Scott’s
assertion that Mitchell’s involvement in the Social Security Administration proceeding is
newly discovered is incredible.2
¶13. The State argues that Scott has failed to show a substantial relationship between the
two representations and has failed to show disclosure of confidential information. The State
also points out that, at the time of Scott’s prosecution, Atkins v. Virginia, 536 U.S. 304, 122
S. Ct. 2242, 153 L. Ed. 2d 335 (2002), had not been decided. As such, neither Mitchell nor
the district attorney had any reason not to seek the death penalty based on mental retardation.
¶14. Miss. Code Ann. Section 99-39-21(1) provides:
Failure by a prisoner to raise objections, defenses, claims, questions, issues or
errors either in fact or law which were capable of determination at trial and/or
on direct appeal, regardless of whether such are based on the laws and the
Constitution of the state of Mississippi or of the United States, shall constitute
2
Scott points out in his rebuttal that while the 1992 Region One Mental Health
Center report was a part of the evidence at trial, Mitchell’s representation of Scott
(documents related to the SSA proceedings) were not part of the record at trial.
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a waiver thereof and shall be procedurally barred, but the court may upon a
showing of cause and actual prejudice grant relief from the waiver.
The record reflects that Scott did not raise this issue on his direct appeal and is now
procedurally barred pursuant to Miss. Code Ann. Section 99-39-21(1). That being said, we
will now examine the merits of the case.
¶15. In Carr v. State, 873 So. 2d 991, 997 (Miss. 2004), this Court held:
The purpose of post-conviction proceedings is to bring forward facts to the
trial court that were not known at the time of the judgment. Williams v. State,
669 So. 2d 44, 52 (Miss. 1996). The procedure is limited to those facts and
matters which could not or should not have been brought at trial or on direct
appeal. Id.; Miss. Code Ann. §§ 99-39-1 to -29 (Rev. 2000 & Supp. 2003).
If newly discovered evidence would likely produce a different result or verdict
and the proponent shows that the evidence was "discovered since the trial, that
it could not have been discovered before the trial by the exercise of due
diligence, that it is material to the issue, and that it is not merely cumulative,
or impeaching" then such evidence warrants a new trial. Ormond v. State, 599
So. 2d 951, 962 (Miss. 1992).
¶16. Further, in Carr, this Court held:
To succeed on a motion for a new trial based on newly discovered evidence,
the petitioner must prove that new evidence has been discovered since the
close of trial and that it could not have been discovered through due diligence
before the trial began. Meeks v. State, 781 So. 2d 109, 112 (Miss. 2001)
(citing Smith v. State, 492 So. 2d 260, 263 (Miss. 1986)). In addition, the
petitioner must show that the newly discovered evidence will probably produce
a different result or induce a different verdict, if a new trial is granted. Id.This requires a showing that the evidence is material and is not merely
cumulative or impeaching. n3 Id.867 So. 2d at 203-04. Since Mitchell’s prior representation is not newly discovered
information, this issue is not proper for post conviction relief. However, this Court will
revisit this issue under an ineffective assistance of counsel argument which will be discussed
8
in Issue IV of this opinion. Trial counsel knew of Mitchell’s representation and chose not
to file a motion to disqualify Mitchell.
¶17. Scott claims that his new counsel on post-conviction relief learned of Mitchell’s
representation of him on a social security matter. It is clear that Scott’s counsel at trial was
aware of Mitchell’s representation at trial. An e-mail from Scott’s trial counsel, Raymond
Wong, to post-conviction relief counsel indicated that his trial lawyer knew about Mitchell’s
former representation of Scott. The e-mail stated:
Ms. Brenda Mitchell was with Rural Legal Services at the time of Kevin Scott
getting his disability check (SSI check - basis: learning disability) which was
I believe 4 or 5 years before the murder of Richard Lee. At the time of trial,
I was aware of the above fact but did not file any motion since she was
neither the lead attorney nor assisting the State in prosecution of Scott’s case;
I think the attorneys for the prosecution were Laurence Y. Mellen (DA) and
Glenn Rossi (ADA).
(Emphasis added). Notwithstanding this information and as mentioned above, Scott also
never filed a motion to disqualify Mitchell.
¶18. In addition, Scott cannot make a claim that this information is newly discovered
evidence as it was known to Scott. Scott also had an expert testify and use the testing
information performed for Social Security disability qualification during the sentencing phase
of the trial.
¶19. Further, at the time of Scott’s 1998 trial, Atkins v. Virginia, 536 U.S. 304, had yet to
be decided, and therefore, there was no prohibition against execution of individuals that were
mentally retarded. The prosecution had no reason at the time of Scott’s 1998 trial not to seek
9
the death penalty since mental retardation had no impact on a prosecutor seeking the death
penalty. This Court finds this issue to be procedurally barred and without merit.
III. Roper v. Simmons
¶20. Scott argues that at the time the murder was committed, he was six days past his
eighteenth birthday. However, he argues that his level of maturity from a cognitive and
behavioral standpoint was closer to that of a twelve-year old. Scott argues this is
demonstrated through his school grades, Stanford Achievement Test scores, IQ tests and
special education class assignment. Scott also points to the opinions of Drs. Tetlow and
Zimmerman on his low functioning and cognitive level. He concludes that his death sentence
is unconstitutional pursuant to Roper v. Simmons, 543 U. S. 551, 125 S. Ct. 1183, 161 L. Ed.
2d 1 (2005).
¶21. The State argues that Scott is not entitled to relief on this issue, noting that he was
eighteen-years old at the time of the murder. The State also points out that this Court has
strictly applied Roper with regard to age limitations and death sentences. See Jordan v.
State, 918 So. 2d 636, 656 (Miss. 2006); Hodges v. State, 912 So. 2d 730, 760 (Miss. 2005).
¶22. In reality, this claim is an extension of Scott’s argument that he is mentally retarded
as discussed in Issue I. Essentially, Scott is asking this Court to blend the Atkins and Roper
opinions, where Atkins addresses the lesser culpability of a mentally retarded offender and
Roper addresses the lesser culpability of a juvenile offender.
¶23. This Court in Jordan, held:
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In considering death penalty cases via direct appeal and post-conviction relief
proceedings, we apply the Constitution of the United States, the Constitution
and laws of the State of Mississippi, and case law as handed down by the
United States Supreme Court and this Court. Of course, we also look to
federal court decisions from this State and federal and state court cases from
our sister states for persuasive guidance. On this note, however, we
unhesitatingly acknowledge the United States Supreme Court's recent decision
in Roper v. Simmons, 543 U.S. [sic], 543 U.S. 551, 125 S. Ct. 1183, 161 L.
Ed. 2d 1 (March 1, 2005), where the Court in a 5-4 decision declared that
death penalty imposition upon offenders who were under the age of 18 when
the crimes were committed was violative of the Eighth and Fourteenth
Amendments to our federal constitution. In reaching this conclusion, the
sharply divided Court relied in part on national and international studies,
covenants and treaties. Such reliance generated scathing dissents from Justice
O'Connor and Justice Scalia, with Chief Justice Rehnquist and Justice Thomas
joining Justice Scalia's dissent. However, in our case today, we note that
Jordan's date of birth is December 25, 1976, and the date of these murders was
October 5, 1995. Inasmuch as Jordan was 18 years of age - and only 81 days
away from his 19th birthday - at the time of the brutal murders of Tony
Roberts and 2-year old Codera Bradley, we decline to rely on international
laws, covenants and treaties in determining whether the death penalty is
appropriate.
Jordan, 918 So. 2d at 656. See also Hodges, 912 So. 2d at 760 (Roper does not apply to the
imposition of a death sentence where defendant was over eighteen, nor is the sentence in
violation of the Eighth and Fourteenth Amendments).
¶24. The record is clear that Scott was six days past his eighteenth birthday at the time at
the time of the crime. Therefore, he was over the age of eighteen albeit by a small margin
of time. This Court has upheld death sentences when the defendant was over the age of
eighteen at the time of the crime. Jordan, 918 So. 2d at 656; Hodges, 912 So. 2d at 760.
Scott was undoubtedly over the age of eighteen at the time of his crimes; therefore, pursuant
to Roper, the imposition of Scott’s death sentence is appropriate in this case. This issue is
11
without merit.
IV. Ineffective Assistance of Counsel
¶25. Scott was represented at trial by Wong. On post-conviction relief, Scott is represented
by James W. Craig and Jeane A. Thomas. Scott argues that Wong provided ineffective
assistance of counsel on numerous occasions during the guilt and sentencing phases of his
trial. In Davis v. State, 897 So. 2d 960, 964-64 (Miss. 2004), a post-conviction relief case,
this Court set forth the standard of review for ineffective assistance of counsel.
The standard for determining if a defendant received effective assistance of
counsel is well established. "The benchmark for judging any claim of
ineffectiveness [of counsel] 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, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant must demonstrate
that his attorney's actions were deficient and that the deficiency prejudiced the
defense of the case. Id. at 687. "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), citing Strickland v. Washington, 466 U.S.
at 687. The focus of the inquiry must be whether counsel's assistance was
reasonable considering all the circumstances. Id.For Scott to prevail on his claims of ineffective assistance, he is required to demonstrate that
counsel’s performance was deficient and that the deficiency prejudiced the defense of the
case. Strickland, 466 U. S. at 686.
a) failing to develop and present evidence of mental
retardation and other mitigating evidence during the
sentencing phase
¶26. Scott argues that Wong failed to undertake any investigation whatsoever for more than
12
one year after accepting the case. He argues that Wong failed to hire a proper investigator
and that Wong only spoke to one witness, Scott’s mother, regarding possible mitigation.
Scott claims that Wong’s presentation of little or no mitigating evidence satisfied the first
prong of Strickland. Doss v. State, 882 So. 2d 176, 189 (Miss. 2004); Burns v. State, 813
So. 2d 668, 679 (Miss. 2001); Davis v. State, 743 So. 2d 326, 339 (Miss. 1999).3
¶27. Scott also argues that the prejudice prong of Strickland was met where the failure to
conduct adequate investigation prevented the jury from hearing evidence of Scott’s mental
retardation, other mental problems, learning disabilities, social interactions, lifestyle, and
other mitigating problems. Scott’s application included affidavits from some of the jurors
stating that had they known of these problems, it would have had an impact on their decision.
¶28. The State argues that, contrary to what Scott now alleges, his trial counsel did present
testimony on mental retardation. Dr. Tetlow testified during the penalty phase. Further, the
State asserts that Scott’s trial was pre-Atkins so there was no reason for counsel to
investigate or present more evidence of mental retardation.
¶29. The record reflects that Wong presented evidence of Scott’s mental retardation to the
jury in the sentencing phase of the trial. Dr. Tetlow, Scott’s expert, testified about Scott’s
mental retardation and the various tests that indicated Scott’s I.Q. levels. Dr. Lott, the State’s
3
See also Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed.2d 471(2003), where the U.S. Supreme Court found ineffective assistance where the attorney failed
to properly investigate and presented only a pre-sentencing report and social services
records.
13
expert, also testified about Scott’s retardation level and I.Q. The majority opinion in Scott’s
direct appeal also discussed much of the testimony provided by these experts at trial,
including Scott’s tests from 1992 used in his social security application. See Scott v. State,
878 So. 2d at 945-48. Further, Scott’s mother was also questioned regarding Scott’s mental
retardation. As previously discussed, in 1998 when this case was tried, Atkins had not been
decided by the United States Supreme Court. We find that Scott’s trial counsel placed the
issue of Scott’s mental retardation before the jury for purposes of mitigation. This issue is
without merit.
b) failing to adequately prepare the defense expert
¶30. Similar to Issue IV(a) above, Scott argues that trial counsel failed to adequately
prepare his expert, Dr. Tetlow, for trial by failing to provide relevant information for his
evaluation of Scott. The State argues that Dr. Tetlow was a well-qualified and seasoned
expert witness who has testified in a number of other cases. Dr. Tetlow was given full access
to Scott for evaluation.
¶31. The record reflects that Dr. Tetlow testified in the sentencing phase on the issue of
Scott’s mental abilities. The direct appeal in this case set forth in great detail the evidence
presented to the jury on the issue of Scott’s mental abilities. Scott, 878 So. 2d at 945-48.
Here, the jury heard evidence on the issue of mental retardation including Dr. Tattle’s
opinion. This issue is without merit.
c) failing to investigate and discover Mitchell’s conflict
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¶32. Scott argues that Wong’s failure to obtain evidence or records for mitigation resulted
in his failure to discover Mitchell’s conflict. Alternatively, Scott argues that if Wong knew
of this conflict, his failure to raise it at trial constitutes ineffective assistance of counsel.
¶33. This Court reviewed this claim in Issue II above and determined that no conflict
existed. Scott claims that Wong was ineffective for failure to discover that Mitchell
represented Scott in a prior social security proceeding. This is flat wrong, as demonstrated
by the excerpt from Wong’s e-mail to post-conviction relief counsel discussed in Issue II.
As stated in his e-mail, Wong clearly knew about Mitchell’s representation for the social
security matter and did not raise the issue or choose not file a motion to disqualify. Wong
may have chosen to not pursue this action for trial strategy reasons. Further, in 1998, Wong
did not have the benefit of the Atkins and Chase decisions which were decided in 2002 and
2004, respectively. Both Dr. Tetlow and Dr. Lott referred to the 1992 test used for a social
security application and testified about Scott’s I.Q. levels in regard to mental retardation
before the jury. This issue is without merit.
d) failing to adequately prepare for trial
¶34. As he did in Issue IV(a), Scott points to the ABA Guidelines 4 and asserts that Wong
failed to adequately prepare a defense. Scott asserts that Wong met with him only three
times, twice before trial and once on the day of trial. Scott argues that those meetings were
4
ABA Guidelines for Appointment and Performance of Defense Counsel in Death
Penalty Cases, Section 11.4.1 and 11.4.2. See also Wiggins v. Smith, 539 U.S. at 524.
15
brief. He also claims that Wong called him as a witness without any advance preparation.
He argues that such failure to prepare him for trial was ineffective.
¶35. The State notes that Wong is an experienced defense attorney and that his time sheets
indicated that he spend adequate time interviewing Scott and preparing for trial. The State
also asserts that Wong met with Scott on seven occasions.
¶36. The record reflects that Wong, Scott’s trial attorney met with him. Wong also worked
on Scott’s trial more than 300 hours as evidenced in petition for payment submitted to the
trial court. This issue is without merit.
e) presenting a de facto guilty plea in his opening remarks
by informing the jury that the murder occurred during a
robbery in which Scott participated
¶37. This argument goes to Wong’s opening statement in which he explains that the killing
of Lee occurred during a robbery in which Scott participated. Scott argues that he in no way
indicated that he wished to change his not guilty plea and that Wong’s stipulation to this
element of the charge is the functional equivalent of a guilty plea.
¶38. On direct appeal, Scott raised this issue as a claim that the trial court should have sua
sponte ordered a mistrial and as an almost indirect ineffective assistance of counsel claim.
On the merits of the claim, this Court found no error, finding that the remarks were entirely
consistent with the testimony provided by Scott on direct examination and with Scott’s theory
of defense. Scott, 878 So. 2d at 953-57. The State argues that Scott cannot demonstrate
16
prejudice, as required by Strickland, where this Court has already found the underlying claim
to be without merit.
¶39. We find that the merit of this claim has already been decided, therefore, Scott cannot
satisfy the prejudice prong of Strickland on this sub-issue of the ineffective assistance claim.
This issue is without merit.
f) failing to adequately develop and present evidence
concerning the lack of a valid Miranda waiver
¶40. Scott had a suppression hearing for statements that he made to police while in their
custody. Scott argues that his counsel, Wong, failed to inform the trial court of his mental
retardation during a suppression hearing. Scott also argues that had Wong brought this
information to the trial court’s attention, the statements would likely have been suppressed.
However, the record reflects that Wong argued Scott’s alleged mental retardation to the trial
court. The motion to suppress, filed with and heard by the trial court, stated in part:
10. The defendant suffers from mental retardation in which his I.Q. range
is between 60-70 and due to this mental retardation such persons desire
to please authorities. . .
Wong also filed a number of notices of supplemental discoveries with the trial court which
included witnesses, Scott’s Region One Mental Health Center Record, the Coahoma County
High School records, and Dr. Tattle’s raw test data. The trial court made its ruling after all
of this additional information was submitted to the trial court. Clearly, the issue of mental
retardation was raised by Wong’s suppression motion heard by the trial court. This issue is
without merit.
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g) failing to strike jurors during voir dire
¶41. During voir dire, two jurors, Juror Nos. 58 and 59 indicated that they would
automatically vote for the death penalty. Scott argues that Wong should have elicited
additional voir dire testimony as to these two jurors and/or those jurors should have been
stricken. Instead, when asked by the trial court to provide a list of all jurors who would
automatically vote for the death penalty, Wong allowed the State to provide that list to the
court. The State’s list did not include Jurors Nos. 58 and 59 and, therefore, Scott argues that
these two were not subject to further voir dire questioning.
¶42. The record reflects that Wong did question Jurors Nos. 58 and 59. During voir dire,
Wong questioned the jurors on the imposition of the death penalty. Initially, Jurors 58 and
59 indicated that they would vote for the death penalty. Juror 58 sat on the jury, and Juror
No. 59 was an alternate. However, when questioned further by Wong, both indicated that
they would consider mitigating evidence when determining whether to impose a life or death
sentence. The record reflects Wong’s questioning as follows:
By Mr. Wong: Now, if you will remain standing, the next two questions
are to you. If you don’t understand, please raise your
hand. Since you are for the death penalty, you are in the
penalty phase for this capital murder, would you
automatically vote for the death penalty? You would?
That’s jurors No. 54, 55, 56, and 59. Then we have No.
58.
(JURORS No. 54, 55, 56, 58, AND 59 RAISE HANDS).
By Mr. Wong: Okay. This is the last question. You are in the penalty
phase and you are a juror, would you consider mitigation
18
evidence irrelevant in your decision to determine life or
death in this trial? If you consider it irrelevant, raise your
hand. Okay, Jurors No. 54, 55, 56, 58, 59, 62 did not
raise their hands. Thank you.
Clearly, Wong inquired whether these jurors could consider mitigating evidence when
considering whether to impose the death penalty. See Welcher v. State, 863 So. 2d 719, 768-
69 (Miss. 2003). This issue is without merit.
h) failing to competently prepare the appellate brief
¶43. Wong requested several extensions of time in which to file the appeal brief. He also
obtained the help of another attorney, Karl Keys. Scott argues that Wong gave Keys
insufficient time to prepare the appellate brief and that Wong filed a “draft” brief to avoid
sanctions threatened by this Court.
¶44. The State points out that the brief was eighty-six pages and included twenty-five
issues. Keys was involved as early as April, 2001, and sent a draft brief to Wong on
November 20, 2002. The State also notes that Scott fails to point to a single claim that he
contends should have been raised on appeal but was not.
¶45. In Scott’s direct appeal, this Court considered over twenty-five well-briefed issues by
both the defense and prosecution. The appeal resulted in a lengthy seventy-five page
opinion. The affidavit of Karl Keys stated that the brief was “inadequate”; however, there
was no specific cite to any issue that was not raised on direct appeal that should have been
an issue for this Court. There is no evidence that Wong did not prepare an adequate brief.
This issue is without merit.
19
V. Improper Aggravating Circumstance
¶46. The aggravating circumstance, that the capital offense was committed for the purpose
of avoiding lawful arrest, was presented to the jury in connection with the facts that Scott and
his accomplice left the scene of the murder. Scott argues that application of this aggravating
circumstance was improper. He argues that fleeing the scene of the crime should not
translate to the use of the aggravating circumstance of avoiding lawful arrest. Scott also
argues that if the prosecution’s case was correct then Lurline, Lee’s wife, the one witness
who remained alive could and did eventually testify against him. Scott concludes that
applying the avoiding lawful arrest aggravating circumstance in this manner would allow it
to be found in any circumstance where a defendant leaves the scene of the crime.
¶47. The State notes that this issue was raised on direct appeal and is therefore procedurally
barred pursuant to Miss. Code Ann. § 99-39-21(3). Miss. Code Ann. § 99-39-21(3)
provides:
The doctrine of res judicata shall apply to all issues, both factual and legal,
decided at trial and on direct appeal.
We agree. This issue is procedurally barred. Scott, 878 So. 2d at 979-81.
VI. Trial Court’s Failure to Accept the Jury’s Initial Verdict
¶48. At the end of the penalty phase, the jury deliberated and returned to inform the court
that their verdict was not unanimous. After questioning and admonishing the jury to go back
and try to reach a unanimous verdict, the jury returned with a death sentence. Scott argues
20
that it was error for the trial court to convey to the jury that they must reach an unanimous
verdict. Lowenfield v. Phelps, 484 U. S. 231, 236, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988).
¶49. Scott argues that it was late evening on a Friday where the jury had been sequestered
for the entire trial. He includes affidavits from jurors stating they felt pressured by other
jurors to change their votes and/or that they were concerned they would be sequestered all
weekend otherwise. Scott argues the trial court was required as a matter of law to sentence
him to life in prison after the jury returned with its initial verdict. Bullington v. Missouri,
451 U. S. 430, 101 S. Ct. 1852, 68 L.Ed. 2d 270 (1981).
¶50. The State argues that this issue was raised on direct appeal and is now procedurally
barred pursuant to Miss. Code Ann. § 99-39-21(3). We agree. This issue is procedurally
barred. Scott, 878 So. 2d at 985-89; Miss. Code Ann. § 99-39-21(3) (“The doctrine of res
judicata shall apply to all issues, both factual and legal, decided at trial and on direct
appeal”).
VII. Jury Instructions
¶51. Scott raises a number of issues concerning the jury instructions provided at his trial,
as follows:
a) lesser-included offense instruction
¶52. Scott asserts that the jury should have been given a lesser-included offense instruction
where the evidence supported a lesser-included offense of murder rather than capital murder.
This issue was raised on direct appeal and is now procedurally barred.
21
b) jury should have been instructed on the weight it should
afford the interrogational statements
¶53. Scott asserts that the jury should have been instructed of its right to assess the
credibility of the statements made to police after his arrest. This issue was raised on direct
appeal and is procedurally barred.
c) jury should have been instructed on the credibility of
eyewitnesses
¶54. Lurline, Lee’s wife, identified Scott as the one who shot her husband. Scott argues
that his identification was based on allegedly seeing him for only a few seconds the day of
the incident. Additionally, Scott notes that this is a cross-racial identification and should be
viewed with skepticism. This issue was raised on direct appeal and is procedurally barred.
d) the jury should have been instructed that failing to stop
Leroy Lynch from killing Lee is not murder
¶55. Scott asserts that failing to give an instruction that guilt by association alone does not
indicate a criminal act was error. This issue was raised on direct appeal and is procedurally
barred.
e) the sentencing instructions do not sufficiently define
mitigation
¶56. Scott argues that Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9(2001), requires a jury be given instructions on the standard of proof for mitigation. He
argues the instruction provided this jury fails to state precisely what is meant by mitigation
evidence. This issue was raised on direct appeal and is procedurally barred.
22
VIII. Erroneous Striking of Prospective Jurors
¶57. Scott argues that the trial court impermissibly struck a prospective juror, Juror No. 49,
who stated that she could conform her conduct with the law. Scott also argues that the trial
court failed to strike prospective jurors, Jurors No. 58 and 59, who stated that they could not
conform their conduct to the law.
¶58. Prospective Juror No. 49 was struck by the trial court for cause because she indicated
to defense counsel that she was opposed to the death penalty. Scott argues that the trial court
had a duty to ask questions and to explore the depths of the juror’s convictions as to the death
penalty. Wainwright v. Witt, 469 U.S. 412, 423, 105 S. Ct. 844, 83 L. Ed. 2d 841(1985).
This issue is procedurally barred for failure to raise the issue at trial or on direct appeal.
Miss. Code Ann. § 99-39-21(1). Turning to the merits, Juror No. 49 clearly indicated that
she could not vote for the death penalty in any event; and therefore, her ability to follow the
law and instructions of the court was substantially impaired. There was no error in excluding
this juror.
¶59. Further, Scott argues that Jurors Nos. 58 and 59 stated they would automatically return
a verdict of death.5 Scott argues that these two jurors should have been excused or that the
trial court should have made a detail inquiry into whether these jurors would follow the law.
Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). This
5
These two jurors were previously discussed in Issue IV(g). That issue also had
excerpts from the voir dire wherein the defense counsel questioned these prospective jurors.
23
issue is procedurally barred for failure to raise the issue at trial or on direct appeal. Miss.
Code Ann. § 99-39-21(1).
¶60. Turning to the merits, this issue was previously discussed in Issue IV(g), one of these
prospective jurors actually sat on the jury and the other was an alternate. Again, defense
counsel questioned these jurors further, asking if they would consider mitigating evidence
and both said that they would. Scott now argues that the trial court had a responsibility to
further question and, possibly, excuse these two jurors. He argues that failure to do so
resulted in an inadequate voir dire. Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119
L. Ed. 2d 492 (1992); Witherspoon, 391 U.S. at 519. As to Jurors Nos. 58 and 59, there
were follow up questions which indicated that these jurors could and would consider
mitigating evidence in their sentencing decision, discussed in Issue IV(g). Therefore, the
trial court was not required to strike these jurors. This issue is without merit.
IX. Improper Miranda Waiver
¶61. On the day of his arrest, Scott made two statements to law enforcement, one at 4:45
p.m. and another at 7:05 p.m. Portions of both interrogations were recorded, and both were
transcribed. According to the transcript of the 4:45 p.m. statement, when Scott is asked if
he understood his rights responded, “How long will a lawyer take. . . you give?” In response,
the officer again asked if Scott understood his rights. Scott responded, “yes.” In the 4:45
p.m. statement, Scott denied any involvement in Lee’s murder. The defense filed a motion
to suppress both statements on the basis that they were involuntarily given. Scott asserted
24
that, after being read his rights during the first interrogation, he asked for an attorney and was
ignored.
¶62. At the hearing of that motion, the trial court asked to listen to the tape recording of
Scott’s 4:45 p.m. statement. After listening several times, the trial court determined that it
could not understand what Scott said and, subsequently, held that Scott did not make a
demand for an attorney.
¶63. Scott argues that he invoked his right to counsel following the reading of his Miranda
rights, but that his request for an attorney was ignored. He argues that it was unreasonable
for the police officer to continuing questioning him after he had requested an attorney.
Furthermore, Scott argues that because he is mentally retarded he was unable to understand
the meaning of his constitutional rights and the consequences associated with a waiver.
¶64. The State asserts that this claim was not raised on direct appeal and is now
procedurally barred pursuant to Miss. Code Ann. § 99-39-21(1). Without waiving the
procedural bar, the State argues that Scott is not entitled to relief on this claim where he has
provided no record to support his claim.6
¶65. We find that the issue is procedurally barred for failure to raise it on direct appeal.
Without waiving the procedural bar, we will briefly examine the merits of Scott’s argument.
Scott had a suppression hearing for statements that he made to police while in their custody.
6
As noted above, the transcript of the hearing held on April 30, 1998, includes the
trial court’s finding on whether Scott invoked his right to counsel. A copy of this transcript
is included as Exhibit 1 to Scott’s rebuttal.
25
Scott argues that his counsel, Wong, failed to inform the trial court of his mental retardation
during the suppression hearing. Scott also argues that had Wong brought this information
to the trial court’s attention, the statements would likely have been suppressed.
¶66. However, the record reflects that Wong argued Scott’s alleged mental retardation to
the trial court. The motion to suppress, filed with and heard by the trial court, stated in part:
10. The defendant suffers from mental retardation in which his I.Q. range
is between 60-70 and due to this mental retardation such persons desire
to please authorities. . .
In addition, the motion referenced Scott’s alleged failure to voluntarily waive his rights. The
motion also stated in part:
11. The statements made to law enforcement officers while Kevin Scott
was I custody were not ‘the product of an essentially free and
unconstrained choice by its maker.’ [citation omitted] Because the
statements were not made voluntarily, admission of the statements at
trial would violate the defendant’s right to due process of law
guaranteed by the Fourteenth Amendment to the United States
Constitution.
Wong also filed a number of notices of supplemental discoveries with the trial court which
included witnesses, Scott’s Region One Mental Health Center Record, the Coahoma County
High School records, and Dr. Tattle’s raw test data. This additional information was
provided to the trial court prior to the ruling. This issue is procedurally barred and without
merit.
X. Prosecution Error
26
¶67. This claim goes to the prosecutor’s closing argument in which he made references to
scripture and to “the Almighty.” Scott argues that this Court has held that the prosecution
may not request the jury to return a particular verdict for any reason other than the law and
the evidence. Griffin v. State, 557 So. 2d 542 (Miss. 1990); Williams v. State, 522 So. 2d
201, 209 (Miss. 1988); Wells v. State, 463 So. 2d 1048 (Miss. 1985); Fulgham v. State, 386
So. 2d 1099 (Miss. 1980).
¶68. The State asserts that this claim is procedurally barred pursuant Miss. Code Ann. § 99-
39-21(3) where it was addressed on direct appeal. We agree. Since this issue was raised on
direct appeal, it is procedurally barred.
XI. Race
¶69. Scott argues that Mississippi’s death penalty scheme is unconstitutional because it
operates on the basis of race. He cites statistics which indicate that black defendants charged
with killing white victims are 800% more likely to receive the death penalty. The State
argues that this issue was raised on direct appeal and is now procedurally barred pursuant to
Miss. Code Ann. § 99-39-21(3). We agree. Since this issue was raised on direct appeal, it
is procedurally barred.
XII. Cumulative Errors
¶70. In Foster v. State, 639 So. 2d 1263, 1303 (Miss. 1994), this Court held “[a]s
previously discussed under the individual propositions, no reversible error was committed
in the trial of this case. We find no ‘near errors’ in either phase of this trial, so we find no
27
cumulative error.” In Gray v. State, 887 So. 2d 158, 172-73 (Miss. 2004 ), a post-conviction
case, this Court held:
Next, Gray argues generically that the alleged preceding errors, taken as a
whole, deprived him of a fair trial. This Court has previously held that "where
there is 'no reversible error in any part, . . . there is no reversible error to the
whole." Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003) (quoting McFee
v. State, 511 So. 2d 130, 136 (Miss. 1987)). Since Gray has not yet shown any
actual error by the trial court, there can be no cumulative effect and no adverse
impact upon his constitutional right to fair trial. This issue is without merit.
Gray, 887 So. 2d at 172-73.
¶71. In Nixon v. State, 641 So. 2d 751, 755-56 (Miss. 1994), a post-conviction relief case,
this Court considered the issue of cumulative error. This Court held:
This Court is now asked to determine whether the cumulative effect of any
discovered errors or "near-errors" constituted a violation of Nixon's right to a
fair trial. See, e.g., Stringer v. State, 500 So. 2d 928, 946 (Miss. 1986) (death
sentence vacated in view of numerous "near-errors" which violated defendant's
right to a fair trial). Nixon raised this issue on direct appeal. Nixon v. State,
533 So. 2d 1078, 1102 (Miss. 1987), cert den. 490 U.S. 1102, 109 S.Ct. 2458,
104 L. Ed. 2d 1012 (1989). This Court has again examined the record and
determined that Nixon received a fair trial--albeit not a perfect one. See Sand
v. State, 467 So. 2d 907, 911 (Miss. 1985) ("Although this defendant did not
receive a perfect trial, it was a fair trial."); see also Stringer, 500 So. 2d at 947
("There has never been a perfect trial." (R.N. Lee, P.J., dissenting)).
In sum, this Court holds that the contention presented through this issue is
devoid of merit.
Nixon, 641 So. 2d at 755-56.
¶72. Scott raises a cumulative error claim on post-conviction relief. Scott also raised the
issue of cumulative error in his direct appeal. Scott, 878 So. 2d at 997-98. This Court found
no cumulative error in Scott’s direct appeal to merit reversal of the conviction or sentence.
28
Id. To the extent that any issues raised by Scott on post-conviction relief are the same as
those raised in his direct appeal, this Court finds that these issues are procedurally barred.
Byrom v. State, 927 So. 2d 709, 729 (Miss. 2006). As to the new issues raised on post-
conviction relief by Scott and previously addressed by this Court in this opinion, Scott has
failed to demonstrate any error with these new claims. Gray, 887 So. 2d at 172-73; Nixon,
642 So. 2d at 755-56. This issue is without merit.
CONCLUSION
¶73. For the foregoing reasons, the petition for post-conviction relief is granted in part and
denied in part. This Court grants Scott’s petition for post conviction relief on the sole issue
of mental retardation and remands this issue to the Circuit Court of Bolivar County to
conduct an evidentiary hearing on the mental retardation issue pursuant to the guidelines
expressed by this Court in Chase. The petition is denied as to all other issues raised in
Scott’s petition for post-conviction relief.
¶74. PETITION FOR POST-CONVICTION RELIEF IS GRANTED IN PART AND
DENIED IN PART.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN PART AND
DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.
29