Davis v. State

980 So. 2d 951, 2007 WL 2917083
Court of Appeals of Mississippi·Decided October 9, 2007·No. 2006-CA-00719-COA·Published·Cited by 8 cases

Opinion

980 So.2d 951 (2007)

Josh Kirk DAVIS, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-CA-00719-COA.

Court of Appeals of Mississippi.

October 9, 2007.
Rehearing Denied February 19, 2008.

*953 Cynthia Ann Stewart, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before MYERS, P.J., BARNES and ROBERTS, JJ.

BARNES, J., for the Court.

¶ 1. Josh Kirk Davis appeals the denial of his motion for post-conviction relief by the Circuit Court of Yazoo County, Mississippi. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 29, 2000, Nicki Campbell, age seventeen, was swimming and fishing at a deer camp in rural Yazoo County, along with Davis, William "Bubba" Arnold, Blake McNeer, Megan Smith, and Nicki's cousin, Michelle Campbell. Michelle was also Davis's girlfriend. At one point during the evening, Arnold, age forty-six, made unwelcome sexual advances toward Nicki. An argument ensued, and Arnold brandished a shotgun and told Nicki and the rest of her friends to leave the property. They went to Michelle's house where, a short time later, they informed Nicki's father, Clifton Campbell (hereinafter "Campbell"), of the incident. Upset, Campbell left the house with Davis, age fifteen, and went to Arnold's cabin. According to Davis, in his third and final statement to law enforcement authorities, Campbell pointed a shotgun at him, told Davis to fire the shotgun, and then said, "You do it or you die." Davis said he complied and fired three shots through a broken glass pane in the door into the cabin. Davis stated that, although he could not see Arnold, he knew Arnold would be lying on the sofa where Davis had seen him earlier that evening. Arnold was killed by a shotgun blast to the face.

¶ 3. Michelle and Megan, in the meantime, went back to the cabin and saw Campbell and Davis running from the cabin with Campbell holding the shotgun. Campbell pointed the gun at the girls and told them not to say anything or he would kill them. It was at that point Davis told the girls that he had fired the gun.[1] Michelle, Megan and Davis went to the cabin where they found Arnold lying on the couch dead. They returned to Michelle's home and, at this point, Davis professed his innocence.

¶ 4. Davis and Campbell were indicted in the Circuit Court of Yazoo County, Mississippi, of the capital murder of Arnold with the underlying felony of burglary. The trials were severed, and Davis was tried by a jury who convicted him of murder less than capital; he was sentenced to life in prison. Davis's conviction was appealed to the Supreme Court of Mississippi and *954 affirmed on July 17, 2003. See Davis v. State, 849 So.2d 1252 (Miss.2003). On October 6, 2004, Davis filed an "Application for Leave to File Motion for Post-Conviction Relief." Davis's application was granted, and he filed a "Motion for Post-Conviction Relief and Supporting Authorities" in the Circuit Court of Yazoo County on December 3, 2004. Attached to the motion was an affidavit by Dr. William Owen[2] which suggested that the fatal shot that killed Arnold was from close range and, therefore, contradicted Davis's testimony that he killed Arnold. The circuit court, upon review of the evidence, and after hearing testimony from Dr. Owen and other experts, denied Davis's motion for post-conviction relief from which he now appeals.

STANDARD OF REVIEW

¶ 5. "[T]he appropriate standard of review for denial of post-conviction relief after an evidentiary hearing is the clearly erroneous standard." Johns v. State, 926 So.2d 188, 194(¶ 29) (Miss.2006). "However, where questions of law are raised the applicable standard of review is de novo." Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss. 1999).

I. WHETHER TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO INVESTIGATE AND DISCOVER POSSIBLE DEFENSES.

¶ 6. Davis states that he was not afforded effective assistance of counsel at trial based on trial counsel's "half-hearted attempt" to suggest someone else fired the fatal shot that killed Arnold and the failure to investigate and present the claim as a credible defense.[3] While counsel is not required to exhaust every conceivable avenue of investigation, he or she must at least conduct sufficient investigation to make an informed evaluation about potential defenses. Ross v. State, 954 So.2d 968, 1005(¶ 84) (Miss.2007). From the autopsy report, testimony, and exhibits, it appears that three shotgun blasts struck Arnold. Davis argues that, based on information contained in Dr. Owen's affidavit, there is credible evidence to show that the fatal shot could not have come from the doorway, where Davis was located, but rather from close range. Dr. Owens testified that his affidavit was based on the autopsy results, his view of the crime scene and his interview with Davis, who told Dr. Owen he only fired the gun once through the opening in the door. Therefore, Dr. Owen reasoned that Davis fired into a dead body thereby rendering Davis not guilty of murder. Mississippi Rule of Evidence 702 allows expert testimony regarding non-scientific matters when:

the witness's knowledge, skill, experience, training, or education qualify him as an expert in a given field, and (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.

*955 Ross, 954 So.2d at 996-97(¶ 57).[4]

¶ 7. The State claims that this issue is barred by res judicata since Davis raised the issue of ineffective assistance of counsel on direct appeal. However, where a defendant raises ineffective assistance of counsel on direct appeal, and raises it again in a post-conviction relief proceeding "supported by extraneous materials that were not available on direct appeal, our consideration of the issue is not barred by res judicata." Hodges v. State, 949 So.2d 706, 717(¶ 21) (Miss.2006). As Davis has brought forth the ineffective assistance of counsel claim based on new information provided by Dr. Owen's testimony, it is not barred from our review, and we will address the merits of Davis's claim.

¶ 8. To succeed on a claim of ineffective assistance of counsel, Davis must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (U.S.1984). "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." Davis v. State, 743 So.2d 326, 333(¶ 5) (Miss.1999) (quoting Stringer v. State, 454 So.2d 468, 477 (Miss.1984)). "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Whether a decision to not investigate is reasonable can depend on strategic choices made by the defendant and on information supplied by the defendant. Id. For example, if a defendant gives

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Davis v. State, 980 So. 2d 951, 2007 WL 2917083 (Mich. Ct. App. 2007).

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