Anthony Carr was sentenced in
Alcorn County, Mississippi, in September 1990 for the Feb. 2, 1990, murders of the
four-member Carl Parker family. The victims were sexually assaulted,
tortured, then burned.
Supreme Court of Mississippi
Carr v. State
Anthony CARR v. STATE of Mississippi.
May 20, 2004
Office of Capital Post-Conviction Counsel by Terri
L. Marroquin, William Clayton, attorneys for appellant.Office of the
Attorney General by Marvin L. White, Jr., attorney for appellee.
¶ 1. Before the Court is Anthony Carr's Application
For Leave To File Petition For Post-Conviction Relief And Memorandum
In Support Thereof filed by the Mississippi Office of Capital
Post-Conviction Counsel. On September 19, 1990, Carr was convicted
and sentenced to death on four counts of capital murder. Carr
asserts that he is entitled to relief based primarily on claims of
prosecutorial misconduct and ineffective assistance of counsel, but he
also asserts that he should be resentenced pursuant to Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
Finding his arguments as to prosecutorial misconduct and ineffective
counsel to be without merit, we deny the petition to that extent.
However, as to the Atkins issue, we grant Carr leave to proceed in the
trial court on the question of his mental status.
¶ 2. This Court's opinion in Carr v. State, 655
So.2d 824 (Miss.1995) (Carr I ), cert. denied, 516 U.S. 1076, 116
S.Ct. 782, 133 L.Ed.2d 733 (1996), included the following factual
On Friday, February 2, 1990, Carl Parker, his wife
Bobbie Jo, and their children, twelve year old Gregory and nine year
old Charlotte, left the Riverside Baptist Church in Clarksdale to
return to their home on Highway 322 in rural Quitman County, some
fifteen miles from Clarksdale. The Parkers were last seen leaving
the church between 8:45 and 9:15 p.m. that evening.
Around 11:00 p.m., Billy King was driving east on
Highway 322 when he spotted a fire at the Parker home. Mr. King went
to the house, tried to open the unlocked carport door, but was driven
back by the fire. Mr. King left the Parkers' house and drove to the
house of the nearest neighbor to call for help. Mr. King did not
pass any vehicles on his way to the neighbor's house, but as he looked
back towards the Parkers' house from the neighbors' front door, he saw
two vehicles leave the Parker house, driving west on Highway 322.
At approximately the same time that King was at the
neighbor's house trying to get help, Joe McCullough was driving east
on Highway 322. McCullough testified that he remembered meeting two
vehicles that were tailgating closely and traveling very fast towards
Clarksdale. He identified the lead vehicle as a Silverado pick-up
Fireman Jerry Wages with the Lambert Volunteer Fire
Department received the call reporting the Parkers' fire between 11:00
and 11:20 p.m. It was raining heavily that evening. Wages was the
first to arrive at the scene of the fire, and he found the southwest
corner of the house on fire. The back door was unlocked, and he
crawled into the house. He recovered the body of Carl Parker.
Wages went back into the house and recovered the bodies of Charlotte
and Gregory. Wages recalled that Carl and Gregory were bound at
their feet and ankles and their wrists were tied behind their backs.
There was also a remnant of a binding on Charlotte's wrist.
Charlotte was undressed from the waist down beneath the dress she was
wearing. Wages said she had a wound on her hip as well. The body
of Bobbie Jo Parker was not discovered until the early morning hours
after the fire was finally extinguished. Her body was found in the
southwest corner of the house and was burned beyond recognition.
Quitman County Sheriff Jack Harrison arrived at the
scene and notified authorities that Carl Parker's red Silverado
pick-up truck was missing. He saw the bodies and noticed the hands
and feet of Carl and Gregory were bound. Charlotte had a red ribbon
tied around her arm. Her knee high stockings were partially burned
off, and she did not have on underclothes. Bobbie Jo Parker's body
was found lying on some springs around 2:00 or 2:30 a.m.
Around midnight that same night, Eddie Lee Spralls,
a Clarksdale resident, looked out his back window after hearing a door
slam and observed a red truck backing up between two abandoned houses.
Spralls called the police. Upon arrival, the Clarksdale police put
a spotlight on the truck. Two black males jumped out of the truck
and ran toward Highway 61.
The truck, identified by the police as Carl
Parker's, was parked close to the home of Robert Simon's
mother-in-law. It was filled with household items, furniture,
appliances, and other valuables, all belonging to the Parkers. A
shotgun was found in the back of the truck, and a pillow case
containing two revolvers and other items belonging to the Parkers was
found near the truck.
Martha Simon, Robert Simon's wife, had left Memphis
and had driven to Clarksdale to see her mother on February 2, 1990.
She said that Carr had been living with her and Robert in their
Memphis apartment for the previous three weeks. Around 12:30 a.m. on
February 3, 1990, Martha was in her car when she saw Carr walking down
the street. Carr asked Martha if she had seen Robert. Martha
replied that she thought Carr and Robert had been together, but Carr
told her that he had come on ahead and Robert was behind him. She
asked Carr how he got to town. Carr responded that he was driving a
truck and pointed in the direction where the Parker truck was later
found. Carr told her that he had parked the truck on 9th Street and
that the truck had “stuff” in it. He also told Martha that he had
some money. Carr said that he had put the keys to the truck along
the railroad tracks and some coveralls in a dumpster, the location of
which Carr told her.
Martha again saw Carr looking for Robert around
8:00 a.m. at her mother's house. The next time she saw Carr, Robert
was with him. They came to Martha's mother's house and told her they
were going to Memphis. Carr was wearing a black jogging suit each of
the three times Martha saw him.
Coahoma County Sheriff Andrew Thompson, Jr.,
received information from Martha Simon that led to the recovery of a
pair of coveralls and a pair of work gloves from a locked dumpster
near Simon's mother-in-law's house in Clarksdale. The coveralls were
wet and smelled of smoke. The gloves were identified by Dean Parker,
Carl Parker's son, as the same type gloves he had given his father.
Ken Dickerson, an investigator with the Highway
Patrol, and Sheriff Thompson, with Martha Simon's permission and in
her company, went to Memphis to search the apartment she shared with
her husband, Robert Simon. They found the wet, black jogging suit
Carr was wearing earlier that day. Other items including a man's and
a woman's wedding rings, a money clip, and ammunition were also found
in the apartment. Martha identified items in the apartment that had
not been there earlier.
Scott Parker and Dean Parker, Carl's sons from a
previous marriage, identified many of the items found in the truck,
the pillow case, and the apartment in Memphis. Carr's fingerprint
was found on the shotgun found in the truck.
On February 3, 1990, two arrest warrants were
issued in Marks, Mississippi. Anthony Carr and Robert Simon, Jr.,
were arrested around 3:30 p.m. that day in Clarksdale.
According to Anthony Washington, an inmate at the
Tate County jail in the early part of February, 1990, Carr came in
around midnight and was put into the cell next to his. Washington
asked who he was and what he was in for, and Carr told him.
Washington had been reading about the crime in the newspaper and
offered to read the story to Carr. Washington said that he and Carr
were playing cards when Carr stopped and said “we had a ball,” as he
held his hand to his head like a gun.
Carr was later taken for a blood test. Upon his
return, Carr asked Washington “are you straight?” and whether he could
tell Washington something “brother to brother.” Carr asked
Washington if they could tell if he raped that little girl, and
Washington asked him what happened. Carr told Washington that he and
his partner had raped the little girl and that one of them had to burn
the house down to destroy the evidence.
Dr. Steven Hayne, a pathologist, testified to the
cause of deaths of each of the Parkers. Carl and Gregory, both shot
twice, died of gunshot wounds. Bobbie Jo, burned beyond recognition
and with one bullet retrieved, died of a gunshot wound. Charlotte,
shot three times, died of smoke inhalation. Dr. Hayne testified that
there was evidence of sexual battery, both vaginally and anally, to
Charlotte. Also, the fourth digit of Carl Parker's left hand was
Carr I, 655 So.2d at 830-32. A nine-day trial was
held in Alcorn County. Carr was convicted on all four counts of
capital murder and sentenced to death by lethal injection for each
count. He raised thirty issues in which he claimed error was
committed by the trial court. After consideration of each assignment
of error, this Court affirmed Carr's conviction and sentence to death
by lethal injection on each of the four counts. Carr has now filed
this motion for post-conviction relief.
¶ 3. 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).
I. WHETHER THE PROSECUTION KNOWINGLY PRESENTED
FALSE TESTIMONY TO THE JURY.
¶ 4. Carr claims the prosecution knowingly elicited
false testimony from Anthony Washington. Washington was a
prosecution witness, who recounted conversations he had with Carr
shortly after Carr's arrest for the Parker murders. Carr, on direct
appeal, raised the issue of the unreliability of Washington's
testimony. Carr I, 655 So.2d at 836-37. This Court found “no
evidence to indicate that Washington was offered any kind of reduced
sentence in exchange for his testimony. In the absence of evidence
that he stood to gain anything by his testimony” there was no merit to
Carr's assignment of error. Id. Carr did not claim in his direct
appeal that the prosecution had elicited false testimony from
¶ 5. Carr attached to his petition a transcript of
Washington's plea hearing which was held on December 13, 1991. The
transcript shows that Washington testified he was told by Bill Ellis
and Mr. Mellen that they would work with him for being a State
witness. Laurence Mellen was the District Attorney, and Bill Ellis
was an investigator on the case. During Washington's plea hearing,
Mellen stated that “[he] intended to accept Bill Ellis's
recommendation and request, and ask the Court to consider a suspended
sentence as to Washington.”
¶ 6. This evidence was not brought before this
Court in the direct appeal. Washington testified at the trial that
no one had offered him anything and that no promises of any kind were
made. Mellen stated that no one made any promises to Washington.
Washington did not say that he was promised anything before he
testified in Carr's capital murder trial. What he said was:
The Court: Over in Corinth. Carr, was that the
The Defendant: Yes, Sir.
The Court: Carr made some jailhouse statement of
confession to you?
The Defendant: Yes, sir.
The Court: Is that the reason the State called
The Defendant: Yes, sir.
The Defendant: ․ All I know is when I testified
for that capital murder case, that the State was going to work with me
with the case I got here. How much time I was going to get, I don't
know. And, what time I was going to do, I don't know.
¶ 7. Carr argues that Washington has now recanted
his earlier testimony in Carr's capital murder trial by stating he was
told the State would work with him. This Court, in Williams v.
State, 669 So.2d 44 (Miss.1996), faced a similar situation. Evans, a
prosecution witness, recanted his testimony after he originally
testified against Williams. Id. at 53. The District Attorney, two
of his assistants and a co-indictee all testified that no deal or
promises were ever made. Id. at 47. In reviewing Evans's
recantation, this Court stated, “[i]n a death penalty case, admission
of perjured testimony mandates a new trial, where there is a
reasonable probability that a different result will be reached in the
new trial without the perjured testimony.” Id. at 53 (emphasis
added); Smith v. State, 492 So.2d 260, 264 (Miss.1986). With that
in mind, we find no reasonable probability that a different result
would be reached in a new trial. Washington never explicitly says he
had a deal. He only states that the prosecution said they would work
with him. This is not an unusual statement made by prosecutors.
Generally plea agreements are written documents; Carr has attached no
such document to his petition. Id. at 54. This absence is
presumptive that no plea agreement existed. Furthermore, in Carr's
direct appeal this Court addressed Washington's testimony, criminal
record, motivation for testifying, and stated that the “circumstances
surrounding his recitation of statements made by Carr were all factors
properly left to the jury to weigh. Instruction C-1 properly
instructed the jury as to the weight and credibility to be given such
testimony” Carr I, 655 So.2d at 837. It is the responsibility of the
jury to determine the credibility of witnesses, even a witness who is
a convicted felon. Brown v. State, 798 So.2d 481, 491 (Miss.2001). We
find this issue to be without merit.
II. WHETHER THE PROSECUTION KNOWINGLY FAILED TO
PROVIDE TRIAL COUNSEL WITH EXCULPATORY AND IMPEACHMENT MATERIAL.
¶ 8. Carr claims the prosecution withheld Brady1
material in two specific instances and committed other prosecutorial
misconduct in two other instances:
A. Redacted Statements of Co-Defendant
¶ 9. Carr asserts that the prosecution withheld
portions of statements made by his co-defendant Simon and that the
withheld portions were favorable to his defense. Specifically,
portions of Simon's second statement had been redacted, blacked out,
before being turned over to Carr. In his first statement, dated
February 5, 1990, at 10:45 a.m., Simon said he saw Carr around 11:00
p.m. on the night of the murders and that he had two rings to sell, a
man's and a woman's. Simon also stated “[i]f I were to guess that
someone who might have done it with [Carr], it might have been Willie
Henderson.” In Simon's second statement dated February 5, 1990, at
11:20 a.m., the entire first paragraph is blacked out. In the second
paragraph, only two items are blacked out and Simon's statement
implies that someone hired him to kill the Parkers.
I came to Clarksdale and went to [redacted] on the
weekend of January 27 and 28, 1990. [redacted] told me that he needed
a job done and drew me a diagram of the Parker house․ I asked them why
he wanted him killed, and they told me, ‘It was none of my business.’
He said he would pay me fifteen hundred dollars to do the job ․
Then, this week, Friday, February 2, 1990, I went to the Parker's
around 8:30 p.m.․ I left, rushed to Clarksdale․ I went back to
Clarksdale, I am not going to say who was with me ․ I killed [another
man] with the guns that I used on the Parkers.
¶ 10. Carr's post-conviction counsel obtained the
unredacted statements of Simon after issuing a subpoena for the
records and reports created by the Mississippi Highway Patrol's
Criminal Investigation Bureau. A sworn affidavit from trial
counsel's investigator dated September 29, 2001, states that during
the trial the defense was never made aware of the redacted portions of
¶ 11. In Brady v. Maryland, 373 U.S. 83, 87, 83
S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme
Court established the principle that “suppression by the prosecution
of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” In
determining whether a Brady violation has occurred, and thus a new
trial is mandated, this Court applies the four-part Brady test adopted
in King v. State, 656 So.2d 1168, 1174 (Miss.1995), under which the
defendant must prove:
a. that the State possessed evidence favorable to
the defendant (including impeachment evidence);
b. that the defendant does not possess the evidence
nor could he obtain it himself with any reasonable diligence;
c. that the prosecution suppressed the favorable
d. that had the evidence been disclosed to the
defense, a reasonable probability exists that the outcome of the
proceedings would have been different.
Id. at 1174.
¶ 12. The United States Supreme Court has since
held that not all failures to disclose exculpatory evidence constitute
reversible error. Rather, the question is whether there is a
“reasonable probability” that the verdict would have been different
but for governmental evidentiary suppression which “undermines
confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S.
419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing United States
v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
The government could violate Brady if it failed to turn over
exculpatory evidence, even if it was never requested, “when
suppression of the evidence would be ‘of sufficient significance to
result in the denial of the defendant's right to a fair trial.’ ”
Kyles, 514 U.S. at 433, 115 S.Ct. at 1565.
¶ 13. The redacted statements concealed
information concerning the Parker murders and the possibility that one
of the investigating officers was involved in the murders. That
investigating officer, Officer Self, was the first officer to
interrogate Carr. In a hearing, regarding this issue, Kenneth
Dickerson, an investigator with the Clarksdale Police Department, was
asked about the redacted portions and erroneously told the court that
those portions referred to other crimes, not the Parker murders.
¶ 14. The first paragraph, which was completely
redacted, contained the name of the person Simon said asked him to
kill the Parkers. In the second paragraph that person's name was
again blacked out. The first paragraph also contained the name of a
police officer, Charlie Payton, who Simon claimed worked for the man
who hired him to kill the Parkers. Any reference to Payton, Officer
Self and any other Clarksdale police officers were redacted throughout
the second statement.
¶ 15. Carr argues that these redacted portions
would have been material to both his guilt and his punishment, and
this information would have given him a very different theory of
defense, as well as the opportunity to impeach possible witnesses.
According to the sworn affidavit of J. Phillip Smith, Carr's defense
attorney, had they “known of Charlie Paden [sic] and Officer Self's
involvement in the case, we would have pursued that to the best of our
abilities. We would have made an issue about Officer Self's
involvement in the murder had we known of it at the time, especially
since he was one of the first people to obtain a statement from
Anthony Carr regarding this matter.” It stands to reason, however,
that given the small number of law enforcement officers in Clarksdale,
Carr could have obtained the names of all of them and pursued an
investigation of the officers who were involved. With reasonable
diligence he could have obtained the information himself, thus his
argument fails the second part of the four-part Brady test. Further,
Carr does not show that there is a reasonable probability that, had
the unredacted statements been disclosed to him, the result of the
proceeding would have been different, as required by Kyles v. Whitley,
514 U.S. at 433, 115 S.Ct. 1555. This Brady challenge is without
B. The fingerprint on the shotgun
¶ 16. Within hours after the Parker family was
murdered, Parker's pick-up truck was found parked close to the home of
co-defendant Simon's mother-in-law. It was filled with household
items, furniture and other valuables belonging to the Parkers. As
the items were removed from Parker's truck, an inventory list was
made, item by item. Carr claims that the prosecution failed to turn
over this inventory list as part of the discovery process. He claims
that the list would place the shotgun, not on the bottom of the truck
bed as was testified to in court, but somewhere in the middle of some
40 items removed. Carr argues the incorrect testimony regarding the
placement of the shotgun wrongfully puts him at the scene.
¶ 17. A review of that inventory list reveals
that the shotgun was listed as number 26 out of 42 items, but the
items vary in size from a pair of eyeglasses to a dining room table
with 4 chairs. Given the very diverse nature of these items, it
would be rank speculation to presume that the unloading process was
accomplished in exactly the reverse order as the loading process.
¶ 18. Further, Carr claims the documents, turned
over to post-conviction counsel were received on September 11, 2001,
and said documents were not in any of the material given to
post-conviction counsel by Carr's trial counsel. Carr asserts the
fingerprint was essential to the State's case because, as the District
Attorney stated, the gun would not have been at the bottom of the
truck if Carr had not been there. Had this evidence been given to
defense counsel, Carr argues, it could have been used to rebut the
prosecution's assertion that because the gun was found in the bottom
of the truck, Carr was there and committed the crimes. Because the
fingerprint found on the gun was the only fingerprint of Carr's found
on any item removed from the house, the inventory list potentially was
¶ 19. Carr offers only a footnote statement that
the material was handed over on September 11, 2001. He attaches no
affidavits in support of his claim. He also makes no claim that he
requested the inventory lists and that they were not turned over.
The absence of any supporting proof regarding the unloading process
and that this information was not available before trial or on Carr's
direct appeal leads to the conclusion that this assignment of error is
C. Fruit of the Poisonous Tree
¶ 20. Carr brings forward his accusations about
the name of Officer Self being redacted from the statement of Simon,
and incorporates it into his “poisonous tree” argument. His broad,
general, bare-bones allegation that he would have done things
differently is not sufficient to meet his burden of proving by a
preponderance of the evidence that he is entitled to relief. Neal v.
State, 687 So.2d 1180 (Miss.1996). Carr alleged that Officer Self
was implicated in the conspiracy which led to the deaths of four
people, and called Self a “rogue cop” However, there is no proof of
what, if anything, Carr would have done differently, or how a
different approach to the case would have altered the outcome, had he
known Officer Self had been implicated in some way with the murders.
¶ 21. Carr also claims that his first statement
after his arrest, given to Officer Self, was obtained
unconstitutionally; thus every other statement thereafter was tainted
by the first and any confessions made during the interrogations were
“fruit of the poisonous tree.” Officer Self, however, was not the
only officer who interviewed Carr. The first statement Carr gave was
suppressed before the trial began, along with five other statements.
Thus the potential “poison” was removed. Apparently nine statements
were taken in all. Although Carr mentions that Self “Mirandized”
him, there is no indication that Self was the only officer who gave
Miranda warnings, or how many times Carr was warned.
¶ 22. This assignment of error is without merit.
D. Improper Demonstrative Evidence
¶ 23. Carr claims that it was prosecutorial
misconduct for District Attorney Mellen to provide demonstrative
evidence. Carr claims that during the trial Mellen acted out the
role of each corpse in an attempt to assist Dr. Hayne in demonstrating
the wounds found on the victims. Defense counsel's objections were
overruled. We find this assignment of error to be without merit.
Obviously this information was available to Carr and his counsel
before his direct appeal. Post-conviction relief is limited to those
facts and matters which could not or should not have been brought at
trial or on direct appeal. See Miss.Code Ann. § 99-39-21(1). This
evidence was available, the objection properly preserved the issue for
appeal and the proper time to bring this information before this Court
was on direct appeal. Carr has not shown that a reasonable
probability exists that the outcome of his trial would have been
different. Accordingly this assignment is without merit, as well as
¶ 24. The State addressed all four of the
foregoing specific allegations of prosecutorial misconduct together as
a single issue-prosecutorial misconduct. The State then argued that
the issue of prosecutorial misconduct was raised and addressed on
direct appeal, and thus Carr's claims fail as res judicata, under
Miss.Code Ann. § 99-39-21(3). However, our review of the specific
prosecutorial misconduct discussed in Carr I reveals that the
prosecutorial misconduct complained of there did not include any
mention of the four specific items of prosecutorial misconduct stated
in Carr's present petition for post-conviction relief which is now
before this Court: namely (1) the redacted statements; (2) the
location of the shotgun with Carr's fingerprint on it; (3) the “fruit
of the poisonous tree”; and (4) the District Attorney's demonstrative
¶ 25. The State argues that:
to the extent that the prosecutorial misconduct
argument in this petition is presented on a different factual basis
from that at trial, Carr is further barred by Miss.Code Ann.
The litigation of a factual issue at trial and on
direct appeal of a specific state or federal legal theory or theories
shall constitute a waiver of all other state or federal legal theories
which could have been raised under said factual issue; and any relief
sought under this article upon said facts but upon different state or
federal legal theories shall be procedurally barred absent a showing
of cause and actual prejudice.
Carr cannot now attempt to relitigate this claim on
a different factual basis.
We disagree with the State's interpretation of this
statutory provision to the facts in this case. The State asserts
that “[T]he direct appeal addressed the claim that ‘the trial court
erred in denying Carr's motion to dismiss the charges or the
prosecutor due to prosecutorial misconduct and unfair prejudicial
publicity’ ”. However, that statement is actually just the “title” of
Issue X in Carr I, and the specific prosecutorial misconduct addressed
in that Issue X included: perceived violation by the District
Attorney of court-ordered seal of discovery; that the D.A. made
statements that were not based on the “whole story”; and that he made
statements linking Carr to the crime without mentioning the
“presumption of innocence.” The State seems to argue that under
§ 99-39-21(2), since these specific acts were addressed under the
issue of “prosecutorial misconduct” on direct appeal, then we are
barred from now addressing “prosecutorial misconduct” post conviction,
notwithstanding that the specific acts complained of are completely
different acts. That is not a correct interpretation of
¶ 26. Carr has failed to prove by a preponderance
of the evidence that he is entitled to relief on the issue of
prosecutorial misconduct for failing to provide trial counsel with
exculpatory and impeachment material.
III. WHETHER TRIAL COUNSEL WAS INEFFECTIVE AT
THE PENALTY PHASE OF CARR'S CAPITAL TRIAL.
¶ 27. The standard of review for a claim of
ineffective assistance of counsel involves a two part test: the
defendant must prove, under the totality of the circumstances, that
(1) his attorney's performance was defective and (2) the deficiency
deprived the defendant of a fair trial. Hiter v. State, 660 So.2d
961, 965 (Miss.1995). This review is highly deferential to the
attorney, and there is a strong presumption that the attorney's
conduct fell within the wide range of reasonable professional
assistance. Id. at 965. With respect to the overall performance of
the attorney, “counsel's choice of whether or not to file certain
motions, call witnesses, ask certain questions, or make certain
objections fall within the ambit of trial strategy” and cannot give
rise to an ineffective assistance of counsel claim. Cole v. State,
666 So.2d 767, 777 (Miss.1995).
¶ 28. Anyone claiming ineffective assistance of
counsel has the burden of proving, not only that counsel's performance
was deficient but also that he was prejudiced thereby. Wiggins v.
Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003);
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Additionally, the petitioner must show that
there is a reasonable probability that but for his attorney's errors,
he would have received a different result in the trial court.
Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). Finally, the
Court must then determine whether counsel's performance was both
deficient and prejudicial based upon the totality of the
circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988).
¶ 29. Carr claims his trial counsel was
ineffective because: 1) counsel did not adequately present evidence
of his mental retardation; 2) counsel did not begin to prepare for
the sentencing phase until guilt had been decided; and, 3) counsel
failed to make a record of all ‘off-the-record’ discussions.
A. Counsel failed to adequately present evidence
of mental retardation. 3
¶ 30. Carr claims trial counsel failed to
adequately present mitigating evidence of his mental retardation.
Ron Lewis, Carr's trial counsel, made an oral motion to the trial
court stating that Carr's constitutional rights would be violated
under “the 8th Amendment and 14th Amendment as well as Article 3,
Section 14 and 28 of the Mississippi Constitution” if the death
penalty was imposed upon him because of his mental retardation. He
also proffered the testimony of Dr. William Kallman in order to
corroborate Carr's mental retardation. Trial counsel also called
Carr's elementary school principal, who described Carr's school
attendance, family life, and grades.
¶ 31. Carr's school counselor, Mr. Rencher, also
testified to Carr's family life, grades, and standardized test scores.
According to Rencher, Carr had very few disciplinary problems at
school, and his problems all stemmed from his lack of attendance and
his poor grades.
¶ 32. Dr. Kallman was a key witness put on by
Carr during his sentencing phase. He testified to his personal
evaluation of Carr's mental functioning level and placed Carr in the
mildly mentally retarded range. Dr. Kallman stated that it was his
opinion that Carr had a serious underlying psychotic condition. Carr
I, 655 So.2d at 858. When responding to a question regarding how a
person with that level retardation would function in the world at the
age of twenty-five he responded, “Well, this person would have great
difficulty functioning independently in the world unless it was a
fairly simple task that did not require a lot of intellectual
understanding and activity.”
¶ 33. Trial counsel has no duty to present
mitigating evidence. Wiley v. State, 517 So.2d 1373, 1379
(Miss.1987). “Counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary.” Id. Unlike defense counsel in Wiggins, 123 S.Ct. at
2542, who failed to investigate, discover, and present powerful
mitigating evidence, Carr's trial counsel put forth significant
mitigating evidence during the sentencing phase. We cannot say that
trial counsel's decisions were unreasonable in this regard. This
assignment of error is without merit.
B. Counsel did not begin to prepare for the
sentencing phase until guilt had been decided.
¶ 34. As pointed out above, trial counsel called
forth witnesses and presented the court with significant mitigating
evidence, so obviously preparation had been made. There is no merit
to this claim.
C. Counsel failed to make a record of all
¶ 35. Carr admits in his petition that defense
counsel filed a Motion to Require the Court Reporter to Transcribe the
Entire Proceedings. Carr also contends that trial counsel failed to
object to the off-the-record discussions. In order to preserve an
issue for appeal, counsel must object. The failure to object acts as
a waiver. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982).
Furthermore, this issue was known before direct appeal and it is not
now proper to bring before this Court. Miss.Code Ann. § 99-39-21(1).
This assignment of error is both barred and without merit.
D. Counsel failed to present evidence of an
¶ 36. Carr offers the hearsay affidavit of an
investigator who asserts a preliminary background investigation
revealed claims of child abuse which Carr purportedly suffered. The
failure to call available witnesses on critical issues is a factor to
be considered in analyzing an ineffective assistance claim.
Leatherwood v. State, 473 So.2d 964, 970 (Miss.1985). The State
responds that there is no specific allegation from any identifiable
family member such that the claim's validity can be determined.
Complaints of uncalled witnesses are typically not favored since
presentation of testimony is generally a matter of trial strategy,
Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir.1981). Without knowing
what specific evidence might have been given by a particular witness,
it is impossible to say whether the failure to call such a witness
amounted to ineffective assistance of counsel. Without an affidavit
from the potential witness, it is speculative at best as to whether
the testimony would have more likely than not altered the sentence
imposed. Brown v. State, 749 So.2d 82, 91 (Miss.1999). Carr has
failed to prove that his trial counsel was ineffective.
IV. WHETHER CARR'S CONVICTION FOR THE MURDER OF
BOBBIE JO PARKER IS SUPPORTED BY SUFFICIENT EVIDENCE.
¶ 37. Carr claims the prosecution failed to
establish that he killed Mrs. Parker or that the remains found in the
charred Parker house were even hers. On direct appeal, in issue VII,
Carr argued that evidence was insufficient to support the verdicts.
Carr I, 655 So.2d at 837. Carr's argument in Carr I was a general
insufficiency of the evidence argument, and this Court addressed it by
reciting specific evidence which was the basis for the decision of the
Court, and concluding that “the record reflects substantial evidence
of such quality to support the verdict.” Id. at 838. Thus to that
extent, it is now procedurally barred. Miss.Code Ann.
§ 99-39-21(1)-(3). However, Carr now raises for the first time the
issue that the prosecution failed to establish that the unidentified,
charred body found in the Parker's home was Bobbie Jo Parker.
However, Carr's argument that the prosecution “completely failed to
provide any evidence that may have remotely linked the burnt body to
that of Mrs. Parker” is specious. Although the medical examiner
testified that he was unable to determine the age, race or sex of the
victim, there was testimony that Mrs. Parker was missing and that the
remains were found in her bedroom. Her engagement and wedding rings
were positively identified after being found in the apartment of
Carr's co-defendant. This Court has found that circumstantial
evidence is sufficient to show that the person named in the indictment
is the same as the person killed, if the circumstantial evidence is
“clear and cogent and leaves no room for reasonable doubt.” Dooley v.
State, 238 Miss. 16, 116 So.2d 820, 821 (1960). In this case, there
is no room for reasonable doubt that the fourth body found in the
Parker's home was that of Bobbie Jo Parker. This issue is without
V. WHETHER THE JURY WAS IMPERMISSIBLY INFLUENCED
BY EXTRANEOUS MATTERS.
¶ 38. “In any trial there is initially a
presumption of jury impartiality.” United States v. O'Keefe, 722 F.2d
1175, 1179 (5th Cir.1983). In his supplemental application, Carr
argues that the jury was improperly influenced during sequestration by
the bailiffs. Carr asserts that the “bailiffs who would fraternize
at card games with the jurors during sequestration, let it be known
that Anthony Carr had allegedly threatened to ‘come after the jurors'
with the bailiffs' guns if he were found guilty.” Carr also asserts
that the same bailiffs told the jurors of a sexual predator staying at
the same hotel who had victimized a pair of children whose ages were
close to those of the Parker children. Carr claims that this
information just recently came to light following interviews of all
the jurors. Jurors are generally precluded from testifying to
impeach their own verdict, however, “a juror may testify on the
question whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror.” M.R.E. 606(b). We have
Once an allegation of juror misconduct arises, then
the next step is to consider whether an investigation is warranted.
In order for the duty to investigate to arise, the party contending
there is misconduct must make an adequate showing to overcome the
presumption in this state of jury impartiality. Juror polling shall
only be permitted by an attorney, outside the supervision of the
court, upon written request.
At the very minimum, it must be shown that there is
sufficient evidence to conclude that good cause exists to believe that
there was in fact an improper outside influence or extraneous
prejudicial information․ Although a minimal standard of good cause
showing of specific instances of misconduct is acceptable, the
preferable showing should clearly substantiate that a specific,
non-speculative impropriety has occurred.
Gladney v. Clarksdale Beverage Co., 625 So.2d 407,
¶ 39. Carr submits the affidavits of eight jurors
in support of his claim regarding the bailiff's actions, as well as
his claim that matters not in evidence, i.e., carpet fibers from the
Parker home found on Carr's boots, were considered. Upon learning of
these affidavits, the State contacted the jurors who had been
interviewed by Carr's counsel, and learned that the affiants felt that
the affidavits obtained by Carr's counsel were obtained under false
pretenses. The State obtained new affidavits from six of the jurors
who had signed the original affidavits for defense counsel. These
“counter-affidavits” stated, in essence, that Carr's counsel or her
investigator implied that they worked for the prosecution; that the
jurors were deceived by the way the interview and original affidavits
were presented; and that they would not have signed them had they
known they were to be used in an effort to overturn Carr's conviction.
The counter-affidavits indicate that the affiants had been led to
believe that the original affidavits were prepared by Carr's counsel,
and they were asked to sign them as documentation of the fact that the
interviews had been conducted, and were not intended to be
declarations of fact but only summaries of what was discussed. Given
that these affidavits are contradictory and the initial statements
have been recanted, it cannot be said that good cause exists to
believe that the jury was improperly tainted by outside influences or
matters not in evidence. Carr presents no factual evidence to
support this claim. This issue is without merit.
VI. WHETHER CARR IS ELIGIBLE FOR THE DEATH
PENALTY PURSUANT TO ATKINS v. VIRGINIA.
¶ 40. In Atkins v. Virginia, 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court
determined that imposition of the death penalty on mentally retarded
inmates constituted cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution. The Atkins
decision did not define who is or is not mentally retarded for
purposes of eligibility for a death sentence but instead “leave[s] to
the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.” 122
S.Ct at 2250.
¶ 41. Because Carr was sentenced pre-Atkins, the
issue of his possible mental retardation was not scrutinized under the
standard which Atkins imposed, nor under the standards we adopt today
in Chase v. State, 873 So.2d 1013, 2004 WL 1118688 (Miss.2004).
¶ 42. Carr's counsel argues he is entitled to a
jury trial to determine whether he is mentally retarded. We
disagree. Carr erroneously relies on the U.S. Supreme Court decision
in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002) which held unconstitutional a sentencing scheme where a judge
rather than a jury determined whether there were sufficient
aggravating circumstances to warrant imposition of the death penalty.
In the present case, however, the death penalty has already been
imposed by a jury after weighing both mitigating and aggravating
evidence pursuant to Miss.Code Ann. § 99-39-101. And in Foster, we
clearly stated that the issue of whether a defendant is mentally
retarded such that he may not be executed under Atkins “will be
considered and decided by the circuit court without a jury.” Foster,
848 So.2d at 175. See also Russell v. State, 849 So.2d 95, 147-48
¶ 43. The issue before this Court is whether Carr
is ineligible for a death sentence which has already been imposed by a
jury. Neither the trial court nor this Court has acknowledged him to
be mentally retarded and the State challenges any such claim. Dr.
Kallman's report was compelling, but left unanswered questions raised
¶ 44. Notwithstanding the evidence which is
before this Court regarding Carr's claim of mental retardation, we
determine that under Atkins and the new standards set forth today in
Chase v. State, 873 So.2d 1013 (Miss.2004), we cannot constitutionally
deny him the opportunity to present the issue of his possible mental
retardation to the trial court. It is at the trial court that all
the arguments presented by the State as well as those of Carr shall be
heard and be weighed in accord with the standards and procedures set
forth in Chase, and a final determination made as to whether Carr is
mentally retarded and, thus, ineligible for the death penalty.
¶ 45. We therefore grant Carr leave to proceed in
the trial court for an evidentiary hearing to determine whether he is
still eligible for the death penalty. Evidence from Dr. Kallman's
prior evaluation of Carr may be utilized in addition to new evidence
presented. If in fact Carr is determined to be sufficiently mentally
retarded to meet the criteria of Atkins and Chase, then the trial
court should vacate the death penalty and resentence him accordingly.
VII. WHETHER THE ALLEGED ERRORS TAKEN TOGETHER
ARE CAUSE FOR POST-CONVICTION RELIEF.
¶ 46. This Court has recognized that several
errors taken together may warrant reversal even though when taken
separately they do not. Flowers v. State, 773 So.2d 309, 334
(Miss.2000). This Court has recently clarified and reaffirmed this
principle in Byrom v. State, 863 So.2d 836, 847 (Miss.2004), in which
we stated that “upon appellate review of cases in which we find ․ any
error which is not specifically found to be reversible in and of
itself, we shall have the discretion to determine, on a case-by-case
basis as to whether such error or errors ․ may when considered
cumulatively require reversal because of the resulting cumulative
prejudicial effect.” We find that only one issue (the Atkins claim)
warrants an evidentiary hearing. However, we find no other alleged
errors that warrant post-conviction relief.
¶ 47. We grant Carr's application in part to the
limited extent that he is granted leave to seek post-conviction relief
in the trial court on his Atkins claim in accordance with Atkins and
Chase. We deny Carr's application in all other respects.
¶ 48. APPLICATION FOR LEAVE TO SEEK
POST-CONVICTION RELIEF GRANTED IN PART AND DENIED IN PART.
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
2. In the
case sub judice, “Carr asked the trial court to admit the portion of
Simon's statements indicating that Simon killed the Parkers and keep
out portions of the same statements that indicated Carr killed the
Parkers. This request was refused. Prior to trial, Carr filed a
motion in limine to exclude all statements made by Simon. Carr
argued that admission of any of the Simon statements would violate
Carr's right to confront witnesses. The State announced its
intention not to introduce any of Simon's statements, and the trial
court ruled Simon's statements would not be admissible against Carr.”
Carr v. State 655 So.2d at 834.During the guilt phase, “Carr moved to
introduce the portion of Simon's statement in which Simon alleged that
he had killed “the Parkers.” The trial court found that the
statement was inadmissible ‘at this time’. After the State rested,
Carr made an offer of proof that criminal investigator Bill Ellis
would testify that Simon said he killed the Parkers with his weapons.
The trial court found this statement inadmissible because it lacked
corroboration and trustworthiness and because it was not offered to
exculpate Carr. The trial judge found the statements were not
exculpatory of Carr because Simon first said that Carr and another
person killed the Parkers and later said that he killed the Parkers.
argument was put forth prior 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) see infra, but is discussed here because it is
illustrative of the insufficiency of pre-Atkins and pre-Chase hearings
on mental retardation.
COBB, Presiding Justice, for the Court.
SMITH, C.J., WALLER, P.J., GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND CARLSON, JJ., NOT