Derek Brandon Conway v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00886-COA
DEREK BRANDON CONWAY
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
04/30/2009
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
EDWIN LLOYD PITTMAN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 06/01/2010
CONSOLIDATED WITH
NO. 2003-CT-02807-COA
DEREK BRANDON CONWAY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLEE
10/14/2003
ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
JONATHAN MICHAEL FARRIS
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CRIMINAL FELONY
CONVICTED OF MURDER AND
SENTENCED TO LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 06/01/2010
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
Derek Conway was convicted of murder in the Circuit Court of Forrest County. He
appealed his conviction, which was considered by this Court. After reviewing the issues
presented, we ultimately affirmed Conway’s conviction. See Conway v. State, 915 So. 2d
521, 527 (¶23) (Miss. Ct. App. 2005). Conway received leave from the supreme court to file
his motion for post-conviction relief (PCR) in the trial court. Conway subsequently filed a
PCR motion in the Circuit Court of Forrest County in which he argued that he had received
ineffective assistance of counsel at both the trial and appellate level as well as arguing other
matters. Following the trial court’s denial of Conway’s PCR motion, he appeals and raises
the following issues, which we have restated for the purpose of clarity and concision:
I.
WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL DURING HIS CRIMINAL TRIAL;
II.
WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL DURING THE APPEAL OF HIS CONVICTION OF
MURDER;
III.
WHETHER CONWAY WAS DENIED A FAIR TRIAL; and
IV.
WHETHER CONWAY WAS DENIED PROCEDURAL DUE
2
PROCESS.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
The facts surrounding Conway’s shooting of Kenneth Ray Mooney were set out in
Conway as follows:
Derek Brandon Conway was a friend of Joseph Jansen. Jansen became
aware that Conway and his wife, Christina, had separated. Heather Essary, an
ex-girlfriend of Conway's, contacted Conway and told him that Christina and
Jansen were using Essary's cell phone to communicate with each other.
Conway called Christina and accused her of seeing Jansen, an accusation
Christina denied. Conway told Christina that he would fight Jansen when
Jansen returned from Alabama. Jansen called Conway and asked him why he
was being accused of sleeping with Christina. Conway said nothing in reply,
and the conversation was ended.
After the telephone conversation, many of Conway's friends informed
him that Jansen and Christina were sleeping together. Conway again called
Jansen and accused him of sleeping with his wife. Jansen again denied the
allegations. According to Jansen, they talked the situation over and Conway
eventually told Jansen that he believed him.
On the afternoon of July 4, 2002, Conway and two of his friends,
Michael Smith and Paul Ingram, went to Conway’s mother’s house. They
ingested crystal methamphetamine and remained at Conway’s mother’s house
until the evening. At approximately 8:00 p.m. Conway, Smith, and Ingram
drove to Bud’s and Sud’s Car Wash to wash Smith’s car. Next to Bud’s and
Sud’s is the Kangaroo store. Ingram was shopping for something to drink. As
Conway and Smith were vacuuming the car, Conway saw Anthony Thames’[s]
truck pull up at the Kangaroo store. Thames was driving, Kenneth Ray
Mooney was in the passenger's seat, and Jansen was in the middle.
Ingram came out of the Kangaroo store and spoke to Jansen. Ingram
told Jansen that Conway and Smith were at the car wash. Jansen, Thames, and
Mooney drove to the car wash and stopped in front of Conway. The three of
them began staring at Conway and laughing.
Conway reached in Smith's car, took out a [Maglite] and walked over
to the truck. Jansen tried to get out of the truck, but Mooney would not let him
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out. Conway hit Mooney in the head with the [maglight] twice.
Jansen and Thames testified that none of the occupants in the truck had
a weapon. Conway testified that he attacked Mooney because he “was scared
that they were all fixing to do something to him” and that “he didn’t give them
a chance” for the boys in the truck to harm him. According to Conway,
Mooney attempted to strike him in the head with a beer bottle. No other
witnesses testified that Mooney displayed any acts of physical aggression.
After Conway hit Mooney in the head with a [Maglite], Conway and
Jansen argued about whether Jansen was sleeping with Conway's wife.
Conway pulled out a gun from his back pocket and shot Mooney. Conway
then ran back to Smith's car and drove away, saying, “I didn’t mean to; I’m
sorry.” Thames and Jansen took Mooney to Forrest General Hospital, where
he died later that night. Conway turned himself in to the police the next day.
The jury found Conway guilty of first[-]degree murder.
Conway, 915 So. 2d at 523-24 (¶¶3-9).
¶3.
Following the hand-down of Conway on November 29, 2005, and subsequent issuance
of the mandate on December 20, 2005, Conway’s appellate counsel filed a motion for an
enlargement of time to file a motion for reconsideration with this Court. The motion was
denied by this Court. Conway’s current counsel filed a motion for reconsideration of this
Court’s denial of the motion for an enlargement of time, which was also denied. Conway
subsequently filed a petition for writ of certiorari review with the supreme court. This
motion was treated as a motion to suspend the rules by the supreme court, and it was denied.
¶4.
Conway then filed an application in the supreme court to proceed in the trial court for
post-conviction relief pursuant to Mississippi Code Annotated section 99-39-27 (Rev. 2007).
The supreme court granted Conway’s motion, and he subsequently filed a PCR motion on
November 6, 2007, in the Circuit Court of Forrest County. In its brief, the State claims that
the trial court summarily dismissed Conway’s motion. However, the record shows that there
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were two notices of hearing, setting a hearing date on November 20, 2007, and March 21,
2008, respectively, as well as a re-notice of hearing. Further, in its May 6, 2009, order nunc
pro tunc denying Conway’s motion, the trial court stated that “this matter [was] previously
heard by the Court on October 3, 2008 . . . .” On September 12, 2008, the State through the
district attorney’s office filed an answer to Conway’s PCR motion. The answer was quite
detailed and specific. Although there is no transcript of the hearing in the record, these facts
suggest that a hearing on the matter did take place. Further justifying this assumption is the
fact that Conway’s initial notice of appeal of the trial court’s denial of his PCR motion was
filed on January 9, 2009. After reviewing Conway’s claims of error, we find that they are
without merit and affirm the trial court’s denial of his PCR motion.
DISCUSSION
I.
¶5.
WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL DURING HIS CRIMINAL TRIAL.
Conway first argues that he was denied his Sixth Amendment right to effective
assistance of counsel. Specifically, Conway assigns the following errors of his trial counsel
on appeal: (1) failed to adequately prepare for Conway’s trial; (2) failed to renew his motion
to exclude evidence provided by the State; (3) failed to move for a mistrial after learning that
a juror had failed to inform the court that she knew Conway’s mother; and (4) failed to object
to the qualifications of the State’s expert witness.
¶6.
The standard of review for a claim of ineffective assistance of counsel is a
well-settled, two-pronged principle of law. The supreme court has stated:
In order to prevail on a claim of ineffective assistance of counsel, a defendant
must prove that his attorney’s performance was deficient, and that the
5
deficiency was so substantial as to deprive the defendant of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); Wilcher v. State, 479 So. 2d 710, 713 (Miss. 1985); Stringer v.
State, 454 So. 2d 468, 477 (Miss. 1984). [A reviewing court] looks at the
totality of circumstances to determine whether counsel’s efforts were both
deficient and prejudicial. Carney v. State, 525 So. 2d 776, 780 (Miss. 1988);
Read v. State, 430 So. 2d 832, 839 (Miss. 1983). “Judicial scrutiny of
counsel’s performance [is] highly deferential.” Strickland, 466 U.S. at 689.
There is a strong but rebuttable presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Carney, 525 So. 2d at
780; Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985). Only where it is
reasonably probable that but for the attorney’s errors, the outcome of the trial
would have been different, will we find that counsel’s performance was
deficient. Dickey v. State, 662 So. 2d 1106, 1109 (Miss. 1995); Reed v. State,
536 So. 2d 1336, 1339 (Miss. 1988).
Holly v. State, 716 So. 2d 979, 989 (¶37) (Miss. 1998).
¶7.
Furthermore, the appellant bears “the burden of proving that counsel’s performance
was deficient and prejudicial.” Branch v. State, 882 So. 2d 36, 52 (¶26) (Miss. 2004) (citing
Hansen v. State, 649 So. 2d 1256, 1258 (Miss. 1994)).
Additionally, there is no
constitutional right to errorless counsel. Id. (citing Stack v. State, 860 So. 2d 687, 696 (¶20)
(Miss. 2003)); Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988); Mohr v. State, 584 So. 2d
426, 430 (Miss. 1991).
A.
¶8.
Whether Conway received ineffective assistance of counsel as
a result of his trial counsel’s being unprepared.
At the beginning of Conway’s trial, his counsel moved the trial court for examination
and testing of physical evidence and for a continuance. However, the motions were denied.
On appeal, Conway argues that the record shows that Conway’s trial counsel was deficient
in his preparations for trial and that “[t]he deficiencies prejudiced Conway’s defense because
[his trial] counsel was unprepared for trial; was unable to obtain separate verification of the
6
existence and placement of the fingerprints on the bottles found in the truck; and was unable
to obtain separate verification of the accuracy of the enhanced videotape . . . .”
¶9.
Based on the record before us, and the colloquy between Conway’s attorney, the
assistant district attorney, and the trial court concerning the above-mentioned motions, we
find that Conway has failed to show deficient performance by his trial counsel which
prejudiced his case. The following colloquy, although lengthy, occurred during the hearing
on Conway’s motions and illustrates Conway’s trial attorney’s level of preparation:
MR. PRICE [Conway’s attorney]: Your Honor, on behalf of Mr. Conway, I
have filed a motion for examination and testing of physical evidence and for
a continuance. The reason for that, Your Honor, is in reviewing the discovery
which is still being provided to us as of today, I have some problems still with
not having some of it. In reviewing what I had as of last Friday when I filed
the motion, I did not have anything pertaining to some items of evidence
which were seized or taken from the pickup truck in which the victim was
located at the time of the shooting. My client’s defense in this case, Your
Honor -- the charge is murder. It appears from the facts and circumstances that
I have seen in reviewing the various witness statements that my client has
possible defenses of accident. He has possible defenses of lesser[-]included
defenses of manslaughter and he possibly has a defense of self-defense. And
that’s because some of the witnesses and Mr. Conway, himself, put three
gentlemen approaching his location. There was sort of an ongoing dispute
between him and one of the gentlemen. And Mr. Conway stated in his own
statement that one or more of the occupants was picking up -- or had picked
up a beer bottle or some type of bottle within the truck and swung that item at
him in an attempt to injure him prior to the gun going off. When I saw from
the discovery in the case -- and, honestly, I had thought we were going to be
able to possibly work this matter out on a plea, and when the State said, no, we
were not going to work it out on a plea, I examined the file carefully and saw
that there was no forensic testing done on bottles which were found in and near
the truck[;] therefore[,] I filed the motion. And I asked in that we be allowed
to examine that and ask that those objects be sent to the crime lab for
examination. Mr. Saucier has provided us subsequently with documentation
that Mr. Byrd at the Hattiesburg Police Department has done a fingerprint
analysis of these items that I’m talking about in that there were, you know, in
their parlance no fingerprints or prints of any value, which is sort of what I was
asking for but not entirely. We just inquired of Mr. Saucier whether or not
7
there were photographs taken of the prints or anything that would be subject
to further examination that we could look at, and as far as photographs, his
response was, no, there are no photographs. I don’t know the state of the
evidence as it exist now, but we would still like to have the opportunity to have
someone at the crime lab with more expertise than Mr. Byrd examine these
items to determine whether or not they might be helpful in proving these items
of defense that are possible for Mr. Conway. And that’s, you know, basically
the basis of the motion, Your Honor.
THE COURT: Mr. Saucier.
MR. SAUCIER [Assistant District Attorney]: Your Honor, I think I need to
give the Court a bit of information for clarification. Discovery was provided
to counsel opposite on July 11 of this year. That’s been three months. The
discovery at that particular point in time was as it is now except for the
fingerprint examination. Counsel waited until one week before the trial to
decide that it would be important for his defense that he have an examination
made of a squeeze bottle, which is a soft plastic strawberry drink bottle, and
a beer bottle. We provided that information through Mr. Byrd, who did a
Super Glue test where you enhance it with gun powder. And this test showed
differently from what counsel told the Court. There was no fingerprints on the
beer bottle. No fingerprints on the Maglite, but there was a partial palm print
on the plastic squeeze bottle for whatever purpose that would be. The most
important thing in this is that I have received zero discovery from counsel
opposite whatsoever. No requests were made for anything until a week before
trial. We have scrambled around and tried to provide that. We have tried to
provide color photographs instead of black and white photographs which were
not acceptable, and I agree they’re not acceptable. Now, counsel stated that
I said there were no photographs of this process. I haven’t talked to counsel,
but I talked to his assistant and I told him I did not know if there were any
photographs because nobody had asked for them and nobody had told me. I
simply got the report. It’s still boils down to this. You have three months of
discovery and you wait a week before trial and all of a sudden this is deemed
important. That cannot be. And it’s not going to change the defense at all.
It’s not going to change the defense as to whether or not he says that somebody
was coming at him with a bottle or not because, for example, the Maglite,
everybody is going to agree that the defendant had the Maglite in one hand,
yet, there are no fingerprints on it. So is that going to discount something?
No, because the testimony is going to still to say that the defendant had the
Maglite. The fingerprints are not that important for another reason and that is
the events have been caught on video camera. And I will tell the Court that the
video camera is one of these stop-and-still type of video cameras that doesn’t
run constantly in actual time. It’s about every four seconds. To enhance this,
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I discovered that there was not a machine here in this area but there is a
machine in Biloxi, and I’m going to have that particular exhibit sent down to
Biloxi and it’s supposed to be back by five o’clock tomorrow afternoon with
an enhanced and also complete frame-by-frame depiction of the events that
occurred. The unfortunate situation, and I think in this case for the defendant,
is that this event was captured on videotape. This event -- you can say
anything you want, that he was about to hit me with a bottle, but the facts are
going to remain that the three individuals that were in the truck stayed in the
truck. They could have very well have had a beer bottle or beer bottles and
done exactly what the defendant said. They may not even be the same beer
bottles. We have no evidence that this beer bottle or this soft drink bottle was
involved in this incident. The reason that they were photographed and taken
into evidence is because they were at the scene of the incident.
Now, does that change his defense? Not at all. They could of all three have
had a beer bottle. They could have long neck beer bottles and could have been
about to hit his client but they may not be the same beer bottles but that
doesn’t mean he doesn’t have that defense. And even if they are the same
bottles, the question is so what. And I simply say that this is nothing but a
subterfuge for a continuance. So, now, after we've done the test on the beer
bottle, no prints on it at all, to come up and say now we need photographs of
what you did, I don’t know if Jeff Byrd did that as a processor, but I will tell
the Court that the only thing that came off the Maglite, the strawberry soft
drink squeezy bottle, and the beer bottle was one palm print on the squeezy
bottle. But that doesn’t change any defenses nor does it change the fact that
maybe his client was threatened by a beer bottle. It doesn’t change a thing
because every single person is going to tell you that the three men in the truck,
including the deceased, had just bought beer and they had just bought ice to
put the beer in. So I don’t think anybody is going to deny that there were beer
bottles and ice in that truck. So it gets down to the question of did anybody
threaten or gesture to the defendant. And that’s just going to be a case of who
the jury believes, eyewitness testimony. Fingerprints on the beer bottles are
not going to prove or disprove anything because my people are going to say
there was beer in that truck and there was ice in that truck.
With that, Your Honor, we have done everything that we could, but it’s
becoming habit forming for us to get a week before trial and then all of a
sudden, I need such and such. There have been three months where counsel
could have asked for it if he felt like it was important, and, yet, we wait a week
before trial. And I submit to the Court that we have done just everything
possible to try to accommodate these last minute requests. And we have done
it again with the fingerprints. And we’d ask the Court to allow us to go
forward Monday.
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THE COURT: Mr. Price.
MR. PRICE: Your Honor, I’m used to being accused of waiting until the last
minute, but I’d like to point out to the Court this case occurred on July 4 of
2002. We’re sitting here today, and Mr. Saucier is admitting -- he is stressing
that we have a very, very important piece of evidence that’s going to tell
everything, a videotape from the location. Yet, today Mr. Saucier doesn’t have
that tape. I don’t have that tape. I was provided with that tape over a week
ago in a totally nonviewable form. I have a tape that is being presented to me
purporting to be a videotape of capturing this crime. The Hattiesburg Police
Department has still not provided that to the district attorney’s office so that
the district attorney could provide it to me. This tape may be wonderful. It
may be great for the State. It may be great for me. I don’t know. But the
point is, Judge, the Hattiesburg Police Department is who has sat around and
not done anything. They did not test these items of evidence when my client
gave a statement to them voluntarily back at the time of the crime and said to
them, “They were trying to hit me in the head with a beer bottle.” They knew
at that point in time right after the crime occurred that the beer bottle was
important evidence and they didn’t do a test, Your Honor. What I’ve been
provided with -- and, by the way, I was in Laurel this morning. I came into my
office about 12:15 and for the first time I saw this letter from Mr. Saucier that
says, “The videotape quality remains the same. The courtroom equipment
should improve the quality to a viewable condition.” Well, that’s just great.
I get to see it just as the jury does and plan my defense. “Kindly be advised
that Jeff Byrd tested the items of evidence for latent prints.” Judge[,] I had a
motion filed before this Court asking that these items be sent to the Mississippi
Crime Lab for examination. And now we can’t do that, Judge. I don’t know
this particular method. I asked my investigator. He told me a little bit about
it, but I suspect it’s a one-time deal. I want the evidence to be provided to the
crime lab for further examination to see whether Mr. Byrd discovered all that
could be discovered. I’m not asking, Your Honor, do these fingerprints belong
to this guy; do they belong to that guy. It’s important to me to know if there
are partial prints, what part of the bottle were they on, do they indicate
something consistent with a person holding the bottle in the normal fashion to
drink or do they indicate, for example, someone turning the bottle around in
a normal fashion to hit somebody over the head with. That’s what’s important
about this evidence not whether there are latent prints of value for
identification purposes.
You know, I would further point out just for the benefit of this record for my
client in this particular case, that I am a part-time public defender, that I have
worked for the first six months of this year with a case load of 200 cases that
I have bent over backwards to try to accommodate the State and the Court in
10
every case possible by doing everything I could. I’ve tried to be at the beck
and call of this Court. We have three judges. We have five district attorneys
and assistant district attorneys, and I have held up the best I could against
every one of them, Your Honor. I cannot be expected to perform -- I have no
staff. I have a part-time secretary that works, perhaps, three hours a day. My
investigator is helpful to me but, as I said, our case load has gone from about
sixty to seventy to two hundred cases. I just finished very recently another
murder trial which was done on change of venue which took me eight days to
try with a break for Sunday. It took me two weeks to prepare for that. I have
a private practice. I have to maintain that private practice. I have lost money
all year long trying to appease the former district attorney’s office. And I’ve
tried to work with this D.A.’s office, and we do work well together. But I
resent the implication and I want the supreme court or the court of appeals
reviewing this to understand that Mr. Conway has not had the benefit of
counsel that’s been able to devote a whole lot of attention to his case up until
it became apparent that the State intended to carry this case to trial. You
know, I would expect, Your Honor, that simply based on the videotape, which
apparently I’m not going to get to see in a viewable condition until trial or,
perhaps, later this afternoon, you know, is evidence enough. I think I’m
entitled to have the crime lab examine this. I think my client is entitled to have
a fair trial. He’s on trial for his life. It’s a very serious crime. And, you know,
the fact that the Hattiesburg Police Dependent didn’t do their job is not my
fault certainly, and it’s not Mr. Saucier’s fault.
This Court is well aware -- and I can provide the Court with documentation
and I’d like the opportunity to do so to supplement this record -- that I have
had numerous cases that have resulted in mistrials or not going to trial and
getting continuances because of the failure of the Hattiesburg Police
Department to properly do testing on evidence and provide that in a timely
manner to counsel before trial.
THE COURT: Mr. Price, we’ve all been busy. And I think much of what you
just said is simply for self-serving purposes. This case was set on June 24 and
is scheduled to go to trial on Monday. The items you’re asking to examine,
you haven’t demonstrated to me any importance for these items; however, it’s
my understanding this matter is on videotape and it will be in a viewable
posture -- tomorrow afternoon or this afternoon?
MR. SAUCIER: Your Honor, there is a little misstatement. It’s actually
viewable now. And I invited Tommy to come over and watch it at the
Hattiesburg PD. But what you have to do is you have to manually do it frame
by frame. And what I want to be able to do is have them a good copy where
they can just stick it in there and go. So it’s not been that they haven’t been
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given an opportunity to see it. Its just the way the mechanism is set up.
They’re going to get a copy by tomorrow afternoon at 5:00 which they’re not
going to have to manually do anything to. They can just stick it in and watch
it.
THE COURT: If there is anything contained in that video that you think you
need to renew this motion, I’ll hear that Friday morning. But, other than that,
I’m going to deny your motion.
MR. PRICE: Yes, Your Honor.
¶10.
It is clear that although Conway’s trial attorney stated that he had not “been able to
devote a whole lot of attention to his case up until it became apparent that the State intended
to carry this case to trial,” he did not proclaim that he was totally unprepared to go to trial.
In fact, the argument during the colloquy indicates otherwise. Conway’s trial attorney stated
that he had reviewed the evidence against Conway and developed various defenses to the
State’s charge of murder. While it could be argued that waiting such a short period of time
before trial to move the trial court for a continuance or to further examine evidence is not
preferred, it is apparent that Conway suffered no prejudice as a result. The trial court stated
that the motions were being denied not because of their timing, but because the trial court had
not been convinced of a sufficient legal justification for granting them. Furthermore, in his
direct appeal from his murder conviction, Conway argued that the trial court erred in denying
both motions. Conway, 915 So. 2d at 523 (¶1). Finding no merit to either issue, this Court
stated the trial court did not abuse its discretion in denying the motion to further examine and
test the physical evidence. Id. at 525 (¶13). Additionally, in regard to Conway’s motion for
a continuance, we did not speak to whether the trial court abused its discretion, but
nonetheless affirmed as “Conway offer[ed] no proof that his attorney at trial was unprepared
12
or that [Conway] was prejudiced from his attorney’s [alleged] lack of preparation.” Id. at
525 (¶15). We again find that Conway has failed to show prejudice from his trial counsel’s
alleged lack of preparation. Accordingly, this issue lacks merit.
B.
¶11.
Whether Conway received ineffective assistance of counsel as
a result of his trial counsel’s failing to renew his motion to
exclude evidence provided by the State.
As quoted above, at the conclusion of the hearing the trial court stated, “[i]f there is
anything contained in that video that you think you need to renew this motion, I'll hear that
Friday morning. But, other than that, I'm going to deny your motion.” Conway argues that
because this Court found the admission of the videotape to be error, the fact that his trial
counsel did not renew his motion for a continuance after viewing the videotape amounts to
ineffective assistance of counsel.1 We cannot agree.
¶12.
While it is true that in Conway we found the admission of the videotape to be error,
we concluded that given the overwhelming weight of the evidence against Conway, the error
of admitting the videotape was harmless. Conway, 915 So. 2d at 526 (¶20). Therefore, even
if Conway could show that his trial counsel was deficient in failing to renew his motion for
a continuance, a conclusion the record does not support, Conway cannot show that he
suffered any prejudice as a result as the admission of the videotape was harmless error.
¶13.
Furthermore, this Court’s finding in Conway that admission of the videotape was error
was not based upon any substantive flaw in the videotape itself that could have been objected
1
Additionally, although Conway argues that his trial counsel’s failure to renew his
objection was not effective assistance, other than an argument under the broad statement that
the videotape prejudiced him, Conway does not specify what his trial counsel could have
based his renewed objection on.
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to prior to the videotape’s admission into evidence, but upon a violation of Mississippi Rule
of Evidence 901 when authentication of the videotape was attempted.
Id. at (¶19).
Conway’s trial counsel did, in fact, object to the admission of the videotape for this precise
reason. Therefore, as Conway cannot show that his trial counsel’s failure to renew his
motion for a continuance satisfies either prong of Strickland, this issue is without merit.
C.
¶14.
Whether Conway received ineffective assistance of counsel as
a result of his trial counsel’s failing to move for a mistrial after
learning that a juror failed to inform the court that she knew
Conway’s mother.
Cleta Zeller was seated as a juror in Conway’s trial. During voir dire, all potential
jurors were asked if they knew any of the individuals expected to be called as witnesses
during Conway’s trial. One such potential witness was Deborah Sumrall, who is Conway’s
mother.2 Although Zeller responded that she knew a different potential witness, she did not
indicate that she knew Sumrall. In an affidavit attached to Conway’s brief, Sumrall stated
that she has known Zeller for years and that the two women were co-workers. Sumrall stated
that she saw Zeller in the courthouse during the trial, but she did not realize Zeller was a
juror until Conway’s sentencing hearing. She claimed to have sent a letter to the trial court
judge about Zeller being on the jury, but she states that she never received a response from
the trial court judge. Conway argues that Sumrall’s affidavit proves that she told Conway’s
trial counsel that Zeller knew Sumrall, but Zeller failed to disclose that fact during voir dire.
Conway argues that his trial counsel’s failure to object to Zeller’s silence was ineffective
2
It appears that Sumrall’s last name has changed to Bishop since Conway’s trial.
However, for the sake of consistency we will continue to refer to Conway’s mother as
Sumrall.
14
assistance of counsel.
¶15.
Despite Conway’s argument that Sumrall’s affidavit proves that his trial counsel had
knowledge of Zeller’s alleged relationship with Sumrall as an acquaintance, Sumrall’s
affidavit simply does not indicate that she told Conway’s trial counsel that she knew Zeller.
Conway’s trial counsel’s failure to object to a relationship that was not disclosed and was not
brought to his attention can hardly be called deficient performance. Therefore, as Conway
cannot pass the threshold inquiry of Strickland, this issue is without merit.
D.
¶16.
Whether Conway received ineffective assistance of counsel as
a result of his trial counsel’s failing to object to the
qualifications of the State’s expert witness.
Conway’s last allegation of his trial counsel’s ineffective assistance centers around
the State’s expert witness, Dr. Stephen Hayne. Dr. Hayne performed the autopsy on the body
of the victim. He testified as to the trajectory of the bullet that killed the victim and the
possible position of the shooter and victim at the time of the shooting. Conway argues that
based upon the supreme court’s discussion of Dr. Hayne in Edmonds v. State, 955 So. 2d 787
(Miss. 2007), Conway’s trial counsel’s failure to object to Dr. Hayne’s proffer as an expert,
and also object to his subsequent testimony regarding the posture of the victim, was
ineffective assistance of counsel.3
¶17.
In Edmonds, the supreme court found that the trial court erroneously allowed the
testimony of Dr. Hayne as it was based on opinion rather than scientific methods and
3
Conway actually calls attention to Justice Diaz’s separate opinion in which Justice
Diaz casts doubt on the Edmonds majority’s characterization of Dr. Hayne as an expert, as
well as Dr. Hayne’s overall qualifications.
15
procedures. Edmonds, 955 So. 2d at 792 (¶8). Further, the Edmonds court stated that this
state’s standards regarding expert testimony required that the State make a proffer of the
“scientific testing performed to support Dr. Hayne’s” theory in Edmonds. Id. The supreme
court ultimately found that Dr. Hayne’s testimony (and lack of proof of testing to support it)
affected Tyler Edmonds’s substantial rights and that this “error was magnified when Dr.
Hayne’s testimony was the only evidence – other than [Edmonds]’s contested confession –
to support the State’s theory of the case.” Id. at (¶9). However, the Edmonds court
nonetheless found that “Dr. Hayne is qualified to proffer expert opinions in forensic
pathology.” Id. at (¶8).
¶18.
In the present case, Dr. Hayne testified that Mooney was shot in the “mid-upper chest
wall at a point 14 inches below the top of the head, 1-1/2 inches to the right. The bullet
traveled in three dimensions going from left to right, going from the top toward the bottom,
and also traveling from front to back.” Furthermore, it was Dr Hayne’s opinion that if the
shooter was within ten feet of Mooney and on level ground, the approximate location of the
weapon would have been seven to eight feet off the ground. When asked by the State if
Mooney’s gunshot wound would be more consistent with a “smaller person” shooting “an
individual . . . seated in a Toyota Tundra pickup truck,” Dr. Hayne then stated that that
scenario was more probable. However, on cross-examination, Dr. Hayne testified that the
trajectory of the bullet that killed Mooney was also possible if you have one five-feet-eightinch-tall person standing within close proximity to another five-feet-eight-inch-tall person.4
He stated: “Very simply. If the decedent rotates slightly toward the shooter, you’d have a
4
Both Conway and Mooney were five feet eight inches tall.
16
bullet going in. When we look at him in a recumbent position, we have the bullet going
down.”
¶19.
As to Conway’s trial counsel’s allegedly deficient inaction in failing to object to Dr.
Hayne’s expert status, Conway offers this Court nothing in the way of evidence or other
support, save for a citation to Edmonds, showing that an objection would have been justified,
let alone successful. Indeed, the Edmonds court stated that Dr. Hayne was an expert in
forensic pathology. That is not to say that once an individual has been deemed an expert in
one courtroom he is always an expert, but, as mentioned, we have been shown nothing to
indicate that Conway’s trial counsel’s decision not to object during Dr. Hayne’s voir dire was
nothing more than trial strategy. Generally, the decision to make certain objections falls
within the realm of trial strategy and is not grounds for a claim of ineffective assistance of
counsel. Spicer v. State, 973 So. 2d 184, 203 (¶69) (Miss. 2007). Following the State’s voir
dire of Dr. Hayne, we can hardly fault Conway’s trial counsel for choosing not to further
question Dr. Hayne as to his extensive qualifications. Therefore, we cannot find that
Conway’s trial counsel was deficient in failing to object to Dr. Hayne’s expert status.
¶20.
Conway also argues that his trial counsel was deficient in failing to object to Dr.
Hayne’s testimony regarding Mooney’s position at the time of the shooting. However, the
record is clear that when the State began to illicit testimony from Dr. Hayne concerning the
positions of Mooney and Conway at the time of the shooting, Conway’s trial counsel did
voice an objection. Conway’s trial counsel stated:
Your Honor, I’m going to object to the relevance of this unless there’s some
determination made that the relationship of Dr. Hayne and [the prosecutor] is
what it was in this case. And I think it’s very obvious to me that it’s not. So
17
unless they can lay the proper foundation, I would object . . . .
However, the trial court ultimately overruled the objection. We cannot say that Conway’s
trial counsel was deficient in failing to make an objection that was, in fact, voiced and argued
to the trial court.
¶21.
Assuming arguendo that Conway’s trial counsel was deficient as argued by Conway,
he still cannot show the requisite prejudice. Although the Edmonds court found that allowing
Dr. Hayne’s testimony was error which infringed upon Edmonds’s substantial rights, the
facts and circumstances surrounding Dr. Hayne’s testimony in the instant case are markedly
different. In Edmonds, Dr. Hayne stated that he could not exclude the defense’s theory of
the case, but he favored the State’s theory as it was more consistent with the victim’s injuries.
Edmonds, 955 So. 2d at 791 (¶7). In the present case, Dr. Hayne stated that it was more
probable that Mooney was shot while sitting in a truck rather than standing straight up and
facing the shooter. However, during cross-examination, he also stated, without showing
favor to either theory, that the trajectory of the bullet that struck Mooney could have occurred
if Mooney had rotated toward the shooter while they were both standing. Furthermore,
unlike in Edmonds where “Dr. Hayne’s testimony was the only evidence – other than
[Edmonds]’s contested confession – to support the State’s theory of the case,” in the instant
case, there was substantial testimony from several eyewitnesses as to their recollection of the
events that led to the shooting of Mooney. As such, we cannot say that Conway’s trial
counsel was deficient in regard to his actions pertaining to Dr. Hayne’s voir dire or
testimony, let alone that Conway suffered any prejudice. This issue is without merit.
II.
WHETHER CONWAY RECEIVED INEFFECTIVE ASSISTANCE
18
OF COUNSEL DURING THE APPEAL OF HIS CONVICTION OF
MURDER.
¶22.
Conway’s counsel during his direct appeal was different from his trial counsel.
Following this Court’s hand-down of our decision in Conway’s direct appeal, Conway’s
appellate counsel chose not to file a motion for rehearing.5 Motions were filed by Conway’s
current attorney requesting an enlargement of time to file for rehearing and reconsideration;
however, they were denied. Additionally, a petition for writ of certiorari was filed, but it too
was denied. Conway argues that his appellate counsel’s failure to file post-appeal motions
amounts to ineffective assistance of counsel.
¶23.
Conway argues that there were two errors committed by this Court in Conway that,
if argued on a motion for rehearing, would have resulted in a different outcome. First,
Conway claims that this Court “did not follow the law when examining the harmlessness of
[allowing the surveillance video into evidence.]” He further claims that “[w]hile the [Court
of Appeals] correctly recited the test for harmless error, the opinion does not even address
the prejudice done to the defendant by the enhanced videotape’s admission into evidence.”
Additionally, Conway cites Rule 103(a) of the Mississippi Rules of Evidence as support for
the statement that “[t]he Mississippi Rules of Evidence indicate the harmless-error test must
include an examination of the effect the evidence had on the substantial rights of the
5
Conway’s brief contains a letter dated December 29, 2005, from the Forrest County
Public Defender’s office informing Conway that his conviction and sentence had been
affirmed, and no basis could be found upon which to file a motion for rehearing. The letter
incorrectly states the date of this Court’s hand-down of Conway as December 13, 2005. This
date was actually the deadline for filing a motion for rehearing of Conway’s appeal.
Additionally, the letter incorrectly informed Conway that he had fourteen days from the date
of the letter to file a motion for rehearing.
19
defendant.” We cannot agree to either proposition.
¶24.
In resolving the issue of whether admission of the videotape was reversible error, we
stated:
No trial is free of error; however, to require reversal the error must be of such
magnitude as to leave no doubt that the appellant was unduly prejudiced.”
Busick v. St. John, 856 So. 2d 304, 308 (¶9) (Miss. 2003) (citing Davis v.
Singing River Elec. Power Ass'n, 501 So. 2d 1128, 1131 (Miss. 1987); Parmes
v. Illinois Cent. Gulf R.R., 440 So. 2d 261, 268 (Miss. 1983)). When the
weight of the evidence against the defendant is overwhelming, such error is
harmless. Moss v. State, 727 So. 2d 720, 725-26 (¶24) (Miss. Ct. App. 1998).
Based on this Court’s review of the record and the evidence against Conway,
we find that the evidence against Conway is overwhelming.
Conway, 915 So. 2d at 526 (¶20). Further, we specifically examined the evidence against
Conway in the following issue concerning whether the jury’s verdict was contrary to the
weight of the evidence. Id. at 526-27 (¶¶21-22). In finding that the evidence against
Conway was overwhelming, we implicitly found that any prejudice he may have suffered as
a result of the admission of the videotape was not worthy of reversal of his conviction. An
on-the-record recitation of such prejudice was simply not required. See generally, Genry v.
State, 735 So. 2d 186, 198 (¶58) (Miss. 1999) (finding an erroneous admission of evidence
harmless error given the overwhelming weight of the evidence against the defendant); Carter
v. State, 722 So. 2d 1258, 1262 (¶14) (Miss. 1998); Sims v State, 928 So. 2d 984, 990-91
(¶¶33-34) (Miss. Ct. App. 2006); Harper v. State, 887 So. 2d 817, 829 (¶57) (Miss. Ct. App.
2004).
¶25.
Conway’s second point of error, which he argues would have justified a motion for
rehearing, stems from this Court’s finding that the trial court’s denial of Conway’s motion
to examine and test the physical evidence was not error. Conway argues that part of this
20
Court’s basis for finding no error in the denial of his motion was due to the evidence
contained on the videotape. Conway continues that our finding that the admission of the
videotape was error, albeit harmless error, calls into question the validity of our finding that
the denial of his motion to examine and test the physical evidence was not error.
¶26.
In Conway, we reviewed the bases argued by the prosecutor in support of the State’s
position that the motion should be denied. Conway, 915 So. 2d at 524-25 (¶¶10-11). These
included: (1) that the presence of fingerprints on the bottle and Maglite were irrelevant to the
issue of self-defense because of the other testimonial evidence and (2) that the presence of
fingerprints on the bottle and Maglite were irrelevant because the event was captured on the
videotape. Id. In resolving the issue, we stated:
The circuit court has considerable discretion in matters pertaining to discovery,
and its exercise of discretion will be set aside only if there is an abuse of
discretion. Gray v. State, 799 So. 2d 53, 60 (¶26) (Miss. 2001). The circuit
court judge agreed with the prosecutor that the presence of fingerprints on the
beer bottle and [Maglite] were irrelevant as to whether Conway acted in
self-defense. Only relevant evidence is admissible. M.R.E. 401. The question
of whether evidence is relevant is within the discretion of the trial judge.
Federal Land Bank of Jackson v. Wolfe, 560 So. 2d 137, 140 (Miss. 1989).
The circuit court judge did not abuse his discretion in denying Conway's
motion for discovery.
Id. at 525 (¶13).
Our identification of the admission of the videotape as error
notwithstanding, the trial court had another legitimate basis for exercising its discretion to
deny the motion, to-wit, that the presence of fingerprints on the items was irrelevant given
the eyewitness testimony expected. Thus, it is clear that while the admission of the videotape
may have influenced the trial court’s decision to deny Conway’s motion to examine and test
the physical evidence, it was not the only reason cited in its denial. This Court, again, cannot
21
say that denying Conway’s motion was an abuse of discretion. Therefore, as Conway has
failed to show that there was an arguable basis upon which to file a motion for rehearing, he
can neither demonstrate that his appellate counsel was deficient, nor that he suffered any
prejudice as a result. As such, this issue is without merit.
III.
¶27.
WHETHER CONWAY WAS DENIED A FAIR TRIAL.
Conway argues that he was denied a fair trial as a result of witness and juror
misconduct. First, he claims that after the affirmance of his conviction in Conway, he
discovered that some witnesses did not abide by Rule 615 of the Mississippi Rules of
Evidence. Second, Conway argues that Zeller’s failure to respond during voir dire that she
knew Conway’s mother was juror misconduct that denied him his right to a fair trial. We
find that neither issue raised by Conway has merit.
¶28.
As evidence of the alleged witness misconduct, Conway attached affidavits from four
individuals to his appellate brief. The affidavits generally state that the witnesses for both
sides were able to, and did, converse with each other during the trial. However, what is
lacking from the affidavits is any mention of what was discussed, if it pertained to Conway’s
trial, or any indication, other than Conway’s unsupported claim of prejudice, that there was
any possibility that what the witnesses discussed affected the outcome of Conway’s trial, or
they had anything to do with it whatsoever. “A technical violation of the rule is harmless
where the violation did not adversely affect the defendant.” Conley v. State, 790 So. 2d 773,
789 (¶55) (Miss. 2001). Assuming arguendo that the affidavits are accurate, Conway has
failed to show such an adverse affect.
¶29.
Conway next argues that Sumrall’s statement in her affidavit that she and Zeller were
22
acquaintances for several years prior to Conway’s trial proves that Zeller was not forthright
during voir dire, which denied Conway of his right to a fair and impartial jury and a fair trial.
Sumrall’s affidavit stated:
I have known Cleta Zeller for years and have worked with her at Mississippi
Auction. Since that time I have had contact with her when I called Mississippi
Auction for business reasons. I spoke to Cleta in the hallway during the trial.
I did not realize she was on the jury. I was in the witness room and did not see
the jury.
I feel Cleta Zeller should have been excused from the jury since it was my son
who was on trial.
I realized she was on the jury when I was taken into the courtroom for the
sentencing of Derek Conway, my son. I sent a letter or fax to Judge Helfrich
and told him about this. I never received a response.
As stated above, when Zeller was asked during voir dire if she knew any of the potential
witnesses, which included Sumrall, she did not admit to knowing Sumrall.
¶30.
The Mississippi Supreme Court held in Odom v. State, 355 So. 2d 1381, 1383 (Miss.
1978), that when a potential juror in a criminal case does not respond to a relevant, direct,
and unambiguous question during voir dire, although the requested information is known to
the juror, it must be determined whether the question asked of “the juror was (1) relevant to
the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had
substantial knowledge of the information sought to be elicited.” If these initial inquires are
answered in the affirmative, then “the court should then determine if prejudice to the
defendant in selecting the jury reasonably could be inferred from the juror's failure to
respond.” Id.
¶31.
In this case, after naming the potential witnesses in Conway’s trial, including Sumrall,
23
the trial court asked the jurors if they were “related by blood or marriage to any of the
potential witnesses in this case? Do any of you know the potential witnesses in this case?”
Zeller responded that she was a casual acquaintance of a different potential witness, but she
could remain fair and impartial to both sides. Zeller did not identify any other potential
witnesses she knew.
It is clear that the question asked of Zeller was relevant and
unambiguous, and assuming Sumrall’s affidavit is accurate, it can be assumed that the third
inquiry was satisfied. That leads us to ask whether prejudice could be inferred from Zeller’s
failure to respond. Though no transcript of a hearing before the trial court concerning
Conway’s motion for post-conviction relief is in the record, it is clear from the record that
a hearing was held on October 3, 2005. Given the trial court’s denial of Conway’s motion,
it can be reasonably assumed that no prejudice was found as a result of Zeller’s failure to
mention that she knew Sumrall.
Nevertheless, each case involving the voir dire of
prospective jurors must be decided on an ad hoc basis considering the facts then before the
court, and a trial court’s judgment in this matter will not be disturbed unless it is clearly
wrong. Id.
¶32.
We can find no reasonable basis of prejudice as Conway argues to this Court. As we
found in Conway’s direct appeal of his conviction, there was a vast amount of evidence
supporting Conway’s guilt. Additionally, in her affidavit, Sumrall does not suggest that: she
was at odds with Zeller; there was an animosity between the two women; or Zeller was
negatively biased toward Conway. One would initially assume that a potential juror who
knows, is acquainted with, or is a friend and past co-worker of the accused’s mother would
favor the accused as a trial juror. We can think of worse individuals to have on a jury than
24
acquaintances with no identified malice toward the defendant. We cannot say that Zeller’s
alleged failure to identify her familiarity with Sumrall, and subsequent selection as a juror,
prejudiced Conway. This issue is without merit.
IV.
¶33.
WHETHER CONWAY WAS DENIED PROCEDURAL DUE
PROCESS.
In his final point of error, Conway claims that the supreme court erred by “denying
his Petition for Writ of Certiorari” as he was denied “his procedural due[-]process rights
under federal and state law.” However, Rule 17(a) of the Mississippi Rules of Appellate
Procedure states, in pertinent part, that “[r]eview on writ of certiorari is not a matter of right,
but a matter of judicial discretion.” There simply is no right to review on a writ of certiorari.
This issue is without merit.
¶34. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE
AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
25
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