Conway v. State

Citations: 48 So. 3d 588; 2010 WL 2163829Docket: Nos. 2009-CA-00886-COA, 2003-CT-02807-COA

Court: Court of Appeals of Mississippi; June 1, 2010; Mississippi; State Appellate Court

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Derek Conway was convicted of murder in the Circuit Court of Forrest County and subsequently appealed his conviction, which was affirmed by the Court. After receiving permission from the supreme court, Conway filed a motion for post-conviction relief (PCR), claiming ineffective assistance of counsel during both his trial and appeal, as well as other issues. The trial court denied his PCR motion, prompting Conway to appeal again, raising four key issues: 

1. Ineffective assistance of counsel during the criminal trial.
2. Ineffective assistance of counsel during the appeal of his murder conviction.
3. Denial of a fair trial.
4. Denial of procedural due process.

The court found no error in the trial court's decision and affirmed the denial of PCR. The incident leading to Conway's conviction involved a confrontation on July 4, 2002, after Conway accused Kenneth Ray Mooney of having an affair with his estranged wife, Christina. Following a series of escalating tensions, including drug use and accusations, Conway attacked Mooney with a Maglite before fatally shooting him. Witnesses testified that Mooney and his companions were unarmed. Conway claimed he acted in self-defense, fearing imminent harm, but the jury ultimately found him guilty of first-degree murder.

On November 29, 2005, following the decision in Conway, his appellate counsel requested additional time to file a motion for reconsideration, which was denied by the court. Conway's current counsel later sought reconsideration of that denial, but it too was denied. Subsequently, Conway filed a petition for writ of certiorari with the supreme court, which was treated as a motion to suspend the rules and was denied. He then applied to the supreme court for post-conviction relief under Mississippi Code Annotated section 99-39-27, which was granted, leading to a PCR motion filed on November 6, 2007, in the Circuit Court of Forrest County. Although the State claimed the trial court dismissed the motion summarily, the record indicated multiple notices of hearings and a May 6, 2009, order that referenced a previous hearing on October 3, 2008. An answer to Conway's PCR motion was filed by the State on September 12, 2008, suggesting a hearing had occurred despite the lack of a transcript. After reviewing Conway’s claims of error, the court found them without merit and affirmed the trial court's denial of his PCR motion.

Conway claimed ineffective assistance of counsel during his trial, citing several specific errors: inadequate trial preparation, failure to renew a motion to exclude evidence, failure to request a mistrial due to a juror's undisclosed acquaintance with his mother, and failure to challenge the qualifications of the State's expert witness. The standard for proving ineffective assistance of counsel requires demonstrating that the attorney's performance was deficient and that this deficiency prejudiced the defendant's right to a fair trial. Judicial review of counsel's performance is highly deferential, with a presumption of reasonable professional assistance, and relief is granted only if it is likely the trial outcome would have differed absent the attorney's errors.

The appellant must prove that his counsel's performance was both deficient and prejudicial, as established in Branch v. State, 882 So.2d 36, 52 (Miss. 2004). There is no constitutional right to errorless counsel, as noted in Stack v. State, 860 So.2d 687, 696 (Miss. 2003). In evaluating whether Conway received ineffective assistance of counsel, it is noted that his counsel sought examination and testing of physical evidence and requested a trial continuance, both of which were denied.

On appeal, Conway asserts that his trial counsel's lack of preparation harmed his defense. Specifically, he claims that the counsel was unprepared, failed to verify the existence and placement of fingerprints on bottles found in the truck, and could not confirm the accuracy of an enhanced videotape. However, the record does not support these claims of deficient performance. During a hearing on the motions, Conway's attorney explained the lack of discovery materials and mentioned possible defenses, including accident, manslaughter, and self-defense. The attorney highlighted concerns about forensic testing on bottles related to the case, noting that no valuable fingerprints were found. The court determined that Conway had not demonstrated that his trial counsel's performance was deficient or that it prejudiced his case.

A motion has been presented for a more expert examination of evidence related to a case involving Mr. Conway. The request follows a prior discovery provided on July 11, which revealed that a squeeze bottle and a beer bottle had undergone a fingerprint analysis by Mr. Byrd, showing no fingerprints on the beer bottle or Maglite, but a partial palm print on the squeeze bottle. The Assistant District Attorney, Mr. Saucier, noted that the defense did not request additional evidence until one week before the trial, despite having three months of discovery. He emphasized that the fingerprint findings would not alter the defense's claims, as the defendant is expected to maintain that he had the Maglite during the incident. Additionally, video evidence of the event exists, which may undermine the defense's argument regarding the bottles, as it shows that the individuals involved remained in their vehicle and does not confirm the specific bottles being used. Mr. Saucier plans to enhance the video footage to provide a clearer frame-by-frame depiction of the events. Overall, he argues that the defense's claims remain unsupported by the current evidence.

The speaker argues that recent requests for evidence are a delay tactic before trial. They state that tests on several items, including a beer bottle, yielded minimal results—only one palm print on a squeezy bottle—asserting this does not affect the defenses or the claim of a threat involving a beer bottle. The existence of beer bottles and ice in the truck is acknowledged, but the crux of the case hinges on eyewitness testimony regarding whether any threats were made to the defendant. The speaker expresses frustration over last-minute requests for evidence, emphasizing that defense counsel had ample time to request this information earlier. 

Mr. Price counters by noting that the case dates back to July 4, 2002, and highlights the absence of a crucial videotape that could clarify the situation, which has yet to be provided in a usable format. He criticizes the Hattiesburg Police Department for failing to test significant evidence at the time of the crime, despite the defendant's claims about being attacked with a beer bottle. Mr. Price also references a motion he filed for the evidence to be sent to the Mississippi Crime Lab for further testing, stressing the need for a comprehensive examination of the evidence to ensure all relevant findings are uncovered.

Key points highlight the defense attorney's concerns regarding the evidence in a serious criminal case, particularly the significance of fingerprint analysis on a bottle. The attorney emphasizes the need to understand the nature of the fingerprints, whether they suggest normal use or potential weaponization, rather than merely establishing identity. The attorney also describes the overwhelming case load of 200 cases as a part-time public defender, underscoring the lack of resources and support, which has hindered effective representation. Despite efforts to accommodate the court and prosecution, the attorney expresses frustration over the inadequate attention given to the case until it became imminent for trial. He asserts the right to a fair trial, emphasizing the client's life is at stake and criticizing the Hattiesburg Police Department for failing to properly test and provide evidence timely. The court responds by acknowledging the busy schedule and expressing skepticism about the importance of the requested items. A discussion follows about the availability of a videotape containing evidence, with the defense seeking a more accessible copy for review. The court states it will consider any new motions related to the video evidence at a later date, ultimately denying the current motion.

Conway's trial attorney acknowledged limited attention to the case prior to trial but did not claim total unpreparedness. He reviewed evidence and prepared defenses against the murder charge, leading the court to conclude that Conway suffered no prejudice from the attorney's timing in seeking a continuance or further evidence examination. The trial court denied these motions due to insufficient legal justification rather than timing. In Conway's direct appeal, the court found no merit in claims of trial court error regarding the motions, affirming that Conway failed to demonstrate his attorney's unpreparedness or any resulting prejudice.

Regarding the ineffective assistance of counsel claim related to the failure to renew a motion to exclude a videotape, the court noted that although the admission of the tape was later deemed erroneous, it was considered harmless due to overwhelming evidence against Conway. Consequently, even if counsel's performance was deficient, there was no prejudice suffered by Conway. Additionally, the court clarified that the prior error concerning the videotape stemmed from a failure to authenticate it under Mississippi Rule of Evidence 901, an issue that trial counsel had already objected to.

Lastly, the claim of ineffective assistance due to the failure to move for a mistrial after a juror did not disclose knowledge of Conway's mother was introduced. During voir dire, the juror, Cleta Zeller, disclosed only knowledge of another potential witness, not of Deborah Sumrall, Conway's mother. The document implies further implications regarding the juror's knowledge and its relevance to the trial's fairness.

Sumrall, in an affidavit, asserts that she has known Zeller for years as co-workers and saw her in the courthouse during the trial, unaware that Zeller was a juror until Conway’s sentencing hearing. She claims to have informed the trial court judge about Zeller's jury service but did not receive a response. Conway contends that this affidavit demonstrates his trial counsel was aware of Zeller's acquaintance with Sumrall, which Zeller did not disclose during voir dire. However, the affidavit does not confirm that Sumrall informed the trial counsel of her relationship with Zeller, undermining Conway’s argument. Consequently, the failure of trial counsel to object to an undisclosed relationship does not qualify as deficient performance under the Strickland standard, rendering this issue meritless.

Conway’s subsequent claim of ineffective assistance of counsel pertains to the State’s expert witness, Dr. Stephen Hayne, who performed the victim's autopsy and provided testimony on the shooting's circumstances. Conway cites the Mississippi Supreme Court’s ruling in Edmonds v. State, which criticized Dr. Hayne’s testimony as opinion-based and lacking scientific backing, stating that the State must present scientific testing to support such testimony. Although the Edmonds court acknowledged Dr. Hayne's qualifications in forensic pathology, it found that his unsubstantiated testimony adversely affected the defendant's rights.

In the current case, Dr. Hayne testified about the trajectory of the bullet that killed the victim, detailing its path and the potential circumstances of the shooting, suggesting it was more consistent with a smaller person shooting someone seated in a truck. However, he also noted that the bullet's trajectory could be explained by a five-foot-eight-inch tall person standing near another individual of the same height.

Dr. Hayne's testimony indicated that if the decedent rotated toward the shooter, a bullet would enter, whereas in a recumbent position, the bullet would travel downward. Conway claimed his trial counsel was ineffective for not objecting to Dr. Hayne’s expert status, but provided no evidence to support this claim aside from a citation to a previous case (Edmonds), which affirmed Dr. Hayne's expert qualifications. The court noted that trial strategy typically governs such decisions, and nothing indicated that the choice not to object was inadequate representation.

Conway also argued that his counsel was deficient for not objecting to Dr. Hayne’s testimony regarding the shooting positions. However, counsel did object, questioning the relevance of the testimony unless a relationship between Dr. Hayne and the prosecutor was established, but the court overruled the objection. The court found that the counsel’s actions did not constitute deficiency.

Even if counsel had been deficient, Conway could not demonstrate the necessary prejudice. Unlike Edmonds, where Dr. Hayne's testimony was critical in supporting the State’s case, in Conway’s case, Dr. Hayne acknowledged multiple possible scenarios for the bullet's trajectory. Moreover, substantial eyewitness testimony existed that supported the events of the shooting. Consequently, the court concluded that there was no merit to Conway’s claims regarding his trial counsel’s performance.

Conway's appeal claims ineffective assistance of counsel during his murder conviction appeal, as his appellate counsel did not file post-appeal motions, including for rehearing. Conway asserts that this failure constitutes ineffective assistance and identifies two specific errors by the court that, if argued, could have changed the outcome. First, he contends that the court improperly assessed the harmlessness of the surveillance video admitted as evidence, arguing that the court failed to consider the prejudice from this admission against his substantial rights as outlined in Mississippi Rule 103(a). The court, however, stated that while no trial is free of error, reversal requires showing that the error significantly prejudiced the appellant, citing precedents establishing that overwhelming evidence against a defendant renders errors harmless. The court concluded that the evidence against Conway was overwhelming, thus implying that any potential prejudice from the videotape's admission did not warrant reversal.

Conway's second argument challenges the court's ruling on his motion to examine and test physical evidence, claiming that the court's reasoning was flawed since it relied on the erroneously admitted videotape. The court had previously reviewed the prosecutor's arguments supporting the denial of Conway's motion, reinforcing the notion that the admission of the videotape, although deemed erroneous, did not materially affect the case's outcome.

The circuit court determined that the presence of fingerprints on a beer bottle and Maglite was irrelevant to the self-defense claim due to other testimonial evidence and the existence of videotape evidence. The court exercised its discretion in denying Conway's motion for discovery, as only relevant evidence is admissible under M.R.E. 401, and the judge found no abuse of discretion in this decision. Despite identifying an error in admitting the videotape, the court noted that the fingerprints' relevance was also diminished by expected eyewitness testimony. Consequently, Conway's arguments regarding his appellate counsel's performance and the lack of a basis for a motion for rehearing were found to lack merit.

Conway further claimed he was denied a fair trial due to witness and juror misconduct. He alleged violations of Rule 615 of the Mississippi Rules of Evidence by witnesses conversing during the trial and asserted juror misconduct due to a juror's failure to disclose her acquaintance with his mother during voir dire. The court found these claims unsubstantiated as the affidavits submitted did not specify any prejudicial discussions or demonstrate how these alleged violations affected the trial's outcome. The potential technical violation of the rule did not adversely impact Conway, and the court concluded that he failed to prove bias or unfairness in the jury selection process.

Sumrall's affidavit indicates her long-standing acquaintance with Cleta Zeller, a juror in her son Derek Conway's trial. Sumrall was unaware Zeller was on the jury until the sentencing phase. She contends Zeller should have been excused due to their connection and communicated her concerns to Judge Helfrich without receiving a reply. During voir dire, Zeller failed to disclose her acquaintance with Sumrall when asked if she knew any potential witnesses, although she mentioned being a casual acquaintance of another witness while asserting her ability to remain impartial. Citing *Odom v. State*, the excerpt outlines that when a juror does not disclose relevant information during voir dire, courts must evaluate the relevance and clarity of the question, the juror's knowledge of the information, and any potential prejudice resulting from the nondisclosure. The trial court denied Conway's post-conviction relief motion, suggesting no prejudice was found due to the lack of evidence against Zeller's impartiality. The excerpt concludes that Conway's argument lacks a reasonable basis for claiming prejudice, particularly given the substantial evidence of his guilt and the absence of animosity between Zeller and Sumrall.

Zeller's alleged failure to disclose her familiarity with Sumrall did not prejudice Conway, rendering this claim meritless. Conway's assertion that the supreme court violated his procedural due process rights by denying his Petition for Writ of Certiorari is also unfounded, as Mississippi Rules of Appellate Procedure Rule 17(a) clarifies that certiorari review is discretionary and not a right. Consequently, the Circuit Court of Forrest County's denial of the motion for post-conviction relief is affirmed, with all appeal costs assessed to the appellant. Additionally, Conway's argument regarding ineffective assistance of trial counsel due to a failure to renew an objection lacks specificity, as he does not articulate what grounds counsel could have invoked. The document notes a name change for Sumrall to Bishop post-trial but maintains the original reference for consistency. Conway references a dissenting opinion by Justice Diaz questioning Dr. Hayne's expert status, and a letter from the Forrest County Public Defender’s office incorrectly dated and misstating the timeline for filing a rehearing motion.