Cortez Deontae Bass v. State of Mississippi ( 2018 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2017-KA-01009-COA
    CORTEZ DEONTAE BASS A/K/A TEZ A/K/A                                         APPELLANT
    CORTEZ BASS
    v.
    STATE OF MISSISSIPPI                                                          APPELLEE
    DATE OF JUDGMENT:                          06/13/2017
    TRIAL JUDGE:                               HON. CHARLES E. WEBSTER
    COURT FROM WHICH APPEALED:                 TUNICA COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANT:                   CORTEZ DEONTAE BASS (PRO SE)
    HEATHER MARIE ABY
    ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
    BY: ABBIE EASON KOONCE
    DISTRICT ATTORNEY:                         BRENDA FAY MITCHELL
    NATURE OF THE CASE:                        CRIMINAL - FELONY
    DISPOSITION:                               AFFIRMED: 12/11/2018
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
    TINDELL, J., FOR THE COURT:
    ¶1.    A Tunica County grand jury indicted Cortez Bass and Dedrick Small for the first-
    degree (deliberate-design) murder of Donterrius Jackson with a firearm enhancement. See
    
    Miss. Code Ann. §§ 97-3-19
    (1)(a) (Rev. 2014) & 97-37-37(1) (Rev. 2014). The Tunica
    County Circuit Court later granted Small’s motion to sever his trial. Following the
    completion of Bass’s trial, the jury found Bass guilty of first-degree murder. Because Bass
    was seventeen when he committed the crime, the circuit court held a sentencing hearing to
    determine whether he was entitled to parole eligibility under Miller v. Alabama, 
    567 U.S. 460
    (2012). Finding that Bass was not entitled to any relief, the circuit court sentenced him to
    life without eligibility for parole (LWOP) for the murder conviction and to a consecutive
    five-year sentence for the firearm enhancement, with both sentences to be served in the
    custody of the Mississippi Department of Corrections (MDOC).
    ¶2.    On appeal, Bass1 argues the following: (1) actions by law-enforcement officers
    violated his right to be free from self-incrimination; (2) the circuit court erred by failing to
    grant a mistrial; (3) the State erroneously denied him access to Jackson’s criminal history;
    (4) the State committed prosecutorial misconduct; (5) the verdict was against the weight of
    the evidence; (6) the circuit court erred by denying his request for expert-assistance funds for
    mitigation investigation; (7) the circuit court’s imposition of his sentence violated his
    constitutional right to a jury sentencing; and (8) the circuit court erred by sentencing him to
    LWOP.
    ¶3.    Finding no error, we affirm the judgment of Bass’s conviction and sentence.
    FACTS
    ¶4.    On the afternoon of March 10, 2014, Jackson and his friend, George Anderson,
    encountered Bass, Small, and Bass’s cousin, Kendrick, at an intersection in Tunica. An
    argument erupted between the two groups. Seven witnesses testified that the altercation
    ended with Bass fatally shooting Jackson.
    1
    In addition to the arguments Bass’s appellate attorney submitted on appeal, Bass
    filed a supplemental pro se brief that raised additional issues.
    2
    ¶5.    Prior to the shooting, witnesses testified that Jackson and Anderson were walking
    down Cotton Street when Bass drove by and tried to hit Jackson with his car. After missing
    Jackson, Bass drove away, and Jackson and Anderson entered a nearby house. Later that
    day, Jackson and Anderson exited the house and were standing near the Cottonland Village
    Apartments at the intersection of Beatline Road and Cotton Street, when Bass, Small, and
    Kendrick approached from the other side of the street. Although the two groups remained
    on their respective sides of the street, Bass and Jackson began to argue with each other.
    ¶6.    At Bass’s trial, multiple witnesses testified that Bass and Jackson initially appeared
    to be headed toward a fistfight. According to one witness, however, Bass claimed just prior
    to the shooting that he was going to kill Jackson. Witness testimony varied as to whether or
    not Bass obtained the gun he used from Small. Witness testimony also varied as to whether
    Bass fired the gun once or twice. Multiple witnesses for the State testified, however, that
    they never saw Jackson pull out a weapon and that he was trying to run away when Bass shot
    him. The medical examiner who performed Jackson’s autopsy testified that Jackson died
    from a gunshot wound to the back of his head.
    ¶7.    Jackson’s younger brother, Kendarrius, testified that he witnessed Bass shoot his
    brother from the upstairs bedroom of his family’s apartment. Kendarrius further testified
    that, after seeing the shooting, he retrieved a gun from a closet in the apartment and ran
    outside. Kendarrius stated that he no longer saw Bass in the area but that a crowd had
    gathered around his brother’s body. As a result, Kendarrius testified that he shot the gun into
    3
    the air a few times to disperse the crowd. Kendarrius identified State’s Exhibit S-11, a Davis
    P-380 semiautomatic handgun, as the weapon he fired into the air.
    ¶8.    Contrary to the testimony of the State’s witnesses, Bass and his cousin, Kendrick,
    testified that Anderson escalated the altercation between the groups by saying, “Let’s pistol
    play.” Both Bass and Kendrick testified that Jackson then pulled out a gun and pointed it at
    them. In response, Bass and Kendrick stated that Small pulled out a gun of his own, a nine-
    millimeter handgun, which Bass snatched from Small. Bass’s and Kendrick’s testimonies
    differed as to what happened next. Bass testified that he fired the gun once and that he,
    Kendrick, and Small immediately ran back to his home on Cotton Street.2 As he was
    running, Bass testified that he saw Jackson’s brother, Kendarrius, arrive at the street corner
    and pick up Jackson’s gun. Kendrick testified, however, that before Bass fired his shot,
    Kendarrius ran out of an apartment with a gun and started shooting at them. Despite this
    discrepancy, both Bass and Kendrick testified that Kendarrius followed them down the street
    toward Bass’s house and shot in their direction.
    ¶9.    The State’s witnesses corroborated that Bass, Kendrick, and Small ran to Bass’s home
    on Cotton Street after the shooting. One witness testified, however, that as Bass ran by her
    he said, “I hope I killed that bitch.” Lieutenant Dennis Hopson testified that he arrived at
    Bass’s home shortly after the shooting to take Bass into custody. According to Lieutenant
    2
    The shooting occurred in front of 1251 Cotton Street, and Bass lived at 1185 Cotton
    Street. Both Bass and Kendrick testified it took them about ten seconds from the location
    of the shooting to reach Bass’s residence.
    4
    Hopson, when Bass exited his home, his hands were wet and sudsy as though he had just
    washed them. Captain James Smith, who also responded to the dispatch about the shooting,
    testified that he performed a gunshot-residue test on Bass. The forensic scientist who
    analyzed the test results stated that, although thoroughly washing one’s hands can remove
    gunshot residue, the test performed on Bass showed Bass still had particles indicative of
    gunshot residue on both his hands. The forensic scientist further stated that no gunshot
    residue was found on Jackson’s hands. Emergency responders did, however, discover a .32-
    caliber handgun in Jackson’s pocket after the shooting. The emergency responder who found
    the weapon testified that Jackson was wearing two pairs of pants and that the gun was tucked
    into the front right pocket of Jackson’s inner pair of pants.
    ¶10.   Captain Smith testified that he also collected evidence from the crime scene. Captain
    Smith stated that he found four .380-caliber shells in the front yard of the home on Cotton
    Street where the shooting occurred. He also found one nine-millimeter shell casing in the
    middle of the road.
    ¶11.   After being taken into custody, Bass gave a recorded statement to law-enforcement
    officers. Investigator James Clark testified that Bass voluntarily waived his Miranda3 rights
    and spoke to both him and Captain Rico Harris. The State called Investigator Clark as a
    rebuttal witness to testify about the differences between Bass’s pretrial statement and his trial
    testimony. Investigator Clark stated that, during their interview, Bass claimed Jackson pulled
    3
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    5
    out a gun and shot at him twice. Bass then told the officers that he pulled out his own gun,
    which he had brought with him, and shot back at Jackson once or twice. Unlike during his
    trial testimony, Bass denied during the pretrial interview that Small gave him the gun. In
    fact, Investigator Clark testified Bass said Small had nothing to do with the gun. Bass
    instead told the officers that he had bought the gun from a man for $100 and that he kept the
    weapon under his mattress.
    ¶12.   After considering all the evidence and testimony, the jury found Bass guilty of first-
    degree murder with a firearm enhancement. Prior to sentencing, Bass filed multiple motions,
    including a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative,
    for a new trial; a motion for sentencing pursuant to Miller; and motions seeking expert-
    assistance funds for a psychologist and a mitigation investigator. The circuit court granted
    Bass’s request for funds for a psychologist but denied the requested funds for a mitigation
    investigator. The circuit court also denied Bass’s motion for a JNOV or, in the alternative,
    a new trial. After considering the evidence presented at Bass’s sentencing hearing, the circuit
    court sentenced Bass to LWOP for first-degree murder and to a consecutive five-year
    sentence for the firearm enhancement, with both sentences to be served in MDOC’s custody.
    ¶13.   Aggrieved, Bass appeals.
    DISCUSSION
    I.     Right against Self-Incrimination
    ¶14.   For the first time on appeal, Bass contends that law-enforcement officers violated his
    6
    right against self-incrimination. Specifically, Bass asserts that, because he was only
    seventeen years old at the time of the crime, Investigator Clark and Captain Harris should
    never have accepted his Miranda-rights waiver or questioned him without permission from
    a parent or guardian. Because Bass never raised this objection before the circuit court, he
    is procedurally barred from doing so now. See Morton v. State, 
    246 So. 3d 895
    , 899 (¶35)
    (Miss. Ct. App. 2017). Notwithstanding the procedural bar, we find Bass’s argument lacks
    merit.
    ¶15.     The Mississippi Supreme Court has previously held “that minors can be treated as
    adults in such circumstances and are allowed to waive their rights and confess to a crime.”
    Eskridge v. State, 
    765 So. 2d 508
    , 511 (¶16) (Miss. 2000) (citing Clemons v. State, 
    733 So. 2d 266
    , 269 (¶¶8-12) (Miss. 1999)); see also Woodham v. State, 
    779 So. 2d 158
    , 162 (¶19)
    (Miss. 2001) (finding under the totality of the circumstances that a sixteen-year-old’s
    confession was admissible, even without an attorney present at the time he confessed,
    because the record indicated the defendant understood both his right against self-
    incrimination and the consequences of waiving the right). In Clemons, a fourteen-year-old
    boy confessed to fatally shooting several people. Clemons, 733 So. 2d at 268 (¶5). On
    appeal, Clemons argued “that, because neither of his parents were present during his
    interrogation, his understanding of his rights was diminished and the interrogation was
    coercive.” Id. at 269 (¶13). However, the supreme court affirmed the admissibility of the
    confession and held Clemons was not entitled to have a parent present during his
    7
    interrogation. Id. at 269-70 (¶¶13-14).
    ¶16.   In the present case, the State called Investigator Clark to testify on rebuttal about the
    discrepancies between Bass’s pretrial statement and his trial testimony. Under a belief that
    the State planned to admit into evidence part of Bass’s recorded interview, the defense asked
    the circuit court to restrict the admission to those interview portions that specifically rebutted
    Bass’s trial testimony. The State informed the circuit court, however, that it only planned to
    have Investigator Clark testify about the interview and had no intention to introduce the
    actual recording into evidence. The defense raised no objections.
    ¶17.   According to Investigator Clark, he and Captain Harris explained the Miranda rights
    to Bass, and Bass indicated he understood his rights before voluntarily waiving them.
    Investigator Clark further stated on cross-examination that Bass did not appear to be in an
    excited state of mind at the time he waived his Miranda rights and gave his statement. Bass
    himself confirmed during his testimony that Investigator Clark and Captain Harris explained
    his Miranda rights to him and that he still wanted to give a statement about the shooting.
    Therefore, based on our review of the evidence and relevant caselaw, we find no merit to
    Bass’s assignment of error.
    II.     Motion for Mistrial
    ¶18.   Bass argues the circuit court erred by failing to grant a mistrial. First, Bass asserts the
    circuit court should have granted a mistrial due to media coverage of the trial. Second, Bass
    contends the circuit court erred by not declaring a mistrial after learning the jury may have
    8
    been “contaminated by a person entering the jury room [who] was not a member of the
    empaneled jury . . . .” We review the circuit court’s denial of Bass’s motion for a mistrial
    for abuse of discretion. See Williams v. State, 
    240 So. 3d 436
    , 443 (¶15) (Miss. Ct. App.
    2017). “The trial court must declare a mistrial when there is an error in the proceedings
    resulting in substantial and irreparable prejudice to the defendant’s case.” 
    Id.
     (quoting
    Rayner v. State, 
    186 So. 3d 881
    , 893 (¶49) (Miss. Ct. App. 2015)).
    ¶19.   Prior to opening statements, Bass’s attorney informed the circuit court that the “case
    and some of the alleged facts . . . were covered fairly heavily on the Memphis[-]area news
    this morning.” The defense did not move for a mistrial but asked the circuit court to inquire
    whether the jurors had seen or heard anything about the case in the media. The defense
    further requested that the circuit court instruct the jurors to refrain from watching the news
    during the trial.
    ¶20.   Just minutes later, the circuit court informed the trial attorneys that a non-juror had
    entered the jury room. The circuit court explained that a member of the venire had failed to
    find out whether he had been selected for the jury and had instead shown up for the trial and
    entered the jury room. Upon learning this information, the defense moved for a mistrial on
    the basis of jury contamination. The circuit court noted that it was not particularly concerned
    about the incident because no proof had yet been presented in Bass’s trial. The circuit court
    reserved its ruling, however, until after questioning the jurors.
    ¶21.   Once the jurors entered the courtroom, the circuit court inquired whether they had
    9
    seen the Memphis-area media coverage of the trial. None of the jurors indicated they had
    seen the coverage. The circuit court then instructed the jurors to refrain from watching the
    news for the duration of the trial. Next, the circuit court asked whether the jurors had “any
    type of conversation at all or anything about this case or anything relating to this case” with
    the venire member not empaneled as a juror. Again, the jurors indicated they had not.
    Because the parties had not yet presented any evidence and the jurors indicated they had
    neither seen the media coverage nor spoken with the non-juror about the case, the circuit
    court denied the defense’s motion for a mistrial.
    ¶22.   The following day of trial, the defense renewed its motion for a mistrial on the ground
    there had been additional media coverage of the trial and that such coverage prejudiced Bass.
    Bass’s attorney admitted, however, that he had no evidence any jurors had actually observed
    the media coverage. When the circuit court subsequently questioned the jurors about the
    additional media coverage, they all responded that they had not seen the news. As a result,
    the circuit court again denied the defense’s mistrial motion.
    ¶23.   “[W]henever there is a question of outside influencing of a jury, the trial judge himself
    ought to examine the jury carefully to ensure that the jury’s deliberations are based on the
    evidence produced at trial and not extraneous matters.” Wells v. State, 
    698 So. 2d 497
    , 505
    (Miss. 1997). As the record reflects, several times throughout the trial the circuit court
    questioned the jury to determine if it had been affected by any outside influences. At the
    time of the defense’s first mistrial motion on the basis of jury contamination, the circuit court
    10
    correctly noted that no proof had yet been presented in the case and that all the jurors
    indicated they had not spoken to the non-juror about case-related matters. In addition, both
    times the circuit court questioned the jurors about whether they had seen the media coverage
    of the trial, they indicated they had not.
    ¶24.   “We must assume that jurors answer truthfully when polled, else the entire polling
    procedure is rendered pointless.” 
    Id.
     Based on our review of relevant caselaw and the trial
    transcript, we find the circuit court’s actions in questioning the jury and reminding them to
    avoid watching the news sufficiently ensured that Bass received a fair and impartial trial not
    contaminated by outside influences. We therefore find no abuse of discretion in the circuit
    court’s denial of the defense’s motion for a mistrial.
    III.   Jackson’s Criminal History
    ¶25.   Bass also contends for the first time on appeal that the State violated his constitutional
    rights by failing to provide him with Jackson’s juvenile record. Because Bass never raised
    this issue before the circuit court, his argument is procedurally barred. See Britton v. State,
    
    241 So. 3d 639
    , 645 (¶22) (Miss. Ct. App. 2018). Notwithstanding the procedural bar, we
    find no evidence to show that the defense ever requested Jackson’s juvenile record or that
    the State in any way suppressed such a document. Further, even had the defense sought and
    obtained Jackson’s juvenile record, Bass raises no admissible purpose for the record’s
    introduction. See M.R.E. 404 (discussing the admissible purposes for the introduction of
    evidence of a victim’s character or prior bad acts). Without providing further detail or
    11
    reasoning, Bass simply asserts the outcome of his trial may have been different had the jury
    been presented with evidence of Jackson’s criminal history. Upon review, we find Bass’s
    argument fails to overcome the procedural bar and lacks merit.
    IV.    Prosecutorial Misconduct
    ¶26.   Bass further claims the State committed several incidences of prosecutorial
    misconduct. According to Bass, a majority of the State’s witnesses presented perjured
    testimony. Bass claims that law-enforcement officers knowingly used this false testimony
    to arrest him and that the State knowingly presented the testimony at trial. In addition, Bass
    asserts the State withheld from him that it paid the forensic pathologist for his expert trial
    testimony.
    ¶27.   Not only did Bass’s trial attorney thoroughly cross-examine each of the State’s
    witnesses, but the defense never raised these objections before the circuit court. See Britton,
    241 So. 3d at 645 (¶22). Furthermore, Bass has failed on appeal to direct this Court to any
    record evidence or relevant legal authority that supports his claims. See M.R.A.P. 28(a)(7)
    (providing that an appellant’s brief must contain the appellant’s contentions “with respect to
    the issues presented, and the reasons for those contentions, with citations to the authorities,
    statutes, and parts of the record relied on”); Satterfield v. State, 
    158 So. 3d 380
    , 383 (¶6)
    (Miss. Ct. App. 2015) (finding that an appellant’s failure to affirmatively demonstrate error
    in the trial court waives the issue on appeal). As a result, we find these arguments are
    procedurally barred.
    12
    V.     Weight of the Evidence
    ¶28.   Bass argues the jury’s verdict was against the overwhelming weight of the evidence
    because the State failed to prove he had the “deliberate design” necessary for first-degree
    murder. When reviewing a challenge to the weight of the evidence, this Court views the
    evidence in the light most favorable to the verdict. Hall v. State, 
    245 So. 3d 396
    , 403 (¶30)
    (Miss. 2018). We will only reverse where the verdict “is so contrary to the overwhelming
    weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”
    
    Id.
     Where conflicts arise in the evidence, the jury acts as the sole judge of witnesses’
    credibility and determines “the weight and worth of their testimony.” Little v. State, 
    233 So. 3d 288
    , 292 (¶20) (Miss. 2017).
    ¶29.   The jury convicted Bass under section 97-3-19(1)(a), which defines first-degree
    murder as “[t]he killing of a human being without the authority of law by any means or in any
    manner . . . [w]hen done with deliberate design to effect the death of the person killed, or of
    any human being . . . .” Thus, the State was required to prove Bass: (1) killed Jackson; (2)
    without authority of law; and (3) with deliberate design to effect Jackson’s death. See Hall,
    245 So. 3d at 402 (¶22). In previously discussing deliberate design, this Court stated:
    A person can quickly form the deliberate design to kill a person; perhaps only
    moments before the act. Deliberate design may be inferred through the
    intentional use of any instrument which, based on its manner of use, is
    calculated to produce death or serious bodily injury. Furthermore, intent may
    be proven by showing the acts of the person involved at the time, and the
    circumstances surrounding the incident. Ultimately, intent is a question of fact
    gleaned by the jury.
    13
    Crump v. State, 
    237 So. 3d 808
    , 819 (¶37) (Miss. Ct. App. 2017) (citations and internal
    quotation marks omitted).
    ¶30.   Despite Bass’s contentions, the State presented evidence from which a jury could
    conclude that Bass acted with deliberate design to effect Jackson’s death. The jury heard
    testimony that, shortly before the shooting, Bass attempted to hit Jackson with his car and
    then announced that he was going to kill Jackson. Although witness testimony varied as to
    how Bass obtained the gun he used, seven of the State’s witnesses stated they watched Bass
    shoot Jackson in the back of the head. Multiple witnesses further testified they never saw
    Jackson with a gun and that he was actually trying to run away when Bass shot him. In
    addition, one of the State’s witness testified that, as Bass ran past her after the shooting, he
    said, “I hope I killed that bitch.”
    ¶31.   As demonstrated by its verdict, the jury clearly accepted the State’s evidence and the
    version of events presented by the State’s witnesses. Viewing the evidence in the light most
    favorable to the verdict, we cannot say that upholding Bass’s conviction fails to sanction an
    unconscionable injustice. See Hall, 245 So. 3d at 403 (¶30). We therefore find this
    assignment of error lacks merit.
    VI.     Expert Funding for Mitigation Investigation
    ¶32.   Prior to his sentencing hearing, Bass sought expert funding for a mitigation
    investigator and a psychologist. The circuit court granted the funding for a psychologist but
    denied it for a mitigation investigator. On appeal, Bass argues the circuit court’s decision
    14
    prevented him from presenting all aspects of his defense during sentencing. Bass further
    contends the circuit court erred because he was entitled to the same expert assistance during
    sentencing as a defendant facing the death penalty in a capital-murder case. “Whether an
    indigent defendant must be provided expert funding is decided on a case-by-case basis, and
    we review this issue for an abuse of discretion.” Barnett v. State, 
    192 So. 3d 1033
    , 1038
    (¶17) (Miss. Ct. App. 2015) (quoting Barksdale v. State, 
    176 So. 3d 108
    , 111-12 (¶18) (Miss.
    Ct. App. 2015)).
    ¶33.   Our caselaw recognizes the responsibility States bear to ensure defendants receive a
    fair opportunity to present their defense, including receiving expert assistance when the
    denial of such assistance would render a trial fundamentally unfair. Barksdale, 176 So. 3d
    at 111-12 (¶18). Even so, courts are not required to provide an expert every time an indigent
    defendant requests one. Id. at 112 (¶18). “Rather, an indigent’s right to defense expenses
    is conditioned upon a showing that such expenses are needed to prepare and present an
    adequate defense.” Barnett, 192 So. 3d at 1039 (¶18) (internal quotation marks omitted).
    Defendants must establish a substantial need for expert assistance and provide concrete
    reasons for requiring an expert. Id.
    ¶34.   Even in relation to a capital-murder case, the supreme court has upheld the denial of
    expert assistance where the defendant failed to show the necessity for such funding.
    Crawford v. State, 
    218 So. 3d 1142
    , 1153 (¶¶26-27) (Miss. 2016). In Crawford, the
    defendant argued in a successive postconviction relief (PCR) petition that his first PCR
    15
    attorney failed to obtain needed expert assistance. 
    Id. at 1146-47
     (¶2). Crawford’s first PCR
    attorney requested that the trial court grant expert funding for a mitigation investigator to
    thoroughly investigate evidence that should have been presented at the sentencing phase of
    Crawford’s death-penalty case. 
    Id. at 1152
     (¶22). After the trial court denied the requested
    funding, Crawford’s first PCR attorney filed a petition for an interlocutory appeal with the
    supreme court. 
    Id. at 1153
     (¶26). A three-justice panel denied the petition after concluding
    “that Crawford had failed to show that the appointment of a mitigation investigator . . . was
    necessary.” 
    Id. ¶35
    .   In the present case, the circuit court noted in its denial of Bass’s requested funding for
    a mitigation investigator that all the caselaw Bass provided involved situations where a jury
    was “asked to make difficult decisions [on] . . . issues that perhaps the jury is unfamiliar.”
    By contrast, the circuit court stated that “[n]o jury [would] be involved in determining the
    instant question.” The circuit court further stated that it was quite familiar with the factors
    to be analyzed at Bass’s Miller hearing.
    ¶36.   The circuit court also addressed the claim made by Bass’s trial attorney that the
    defense required a social-history investigation “and that lawyers are trained in the law, not
    in conducting social histories.” The circuit court pointed out that attorneys conduct
    investigations in all their cases as they sort through the facts and then present those facts to
    the jury. The circuit court also stated it was “not persuaded that attorneys are so confined in
    their intellect, experience[,] and training that they are incapable of researching and reviewing
    16
    the personal history of a defendant, determining what is pertinent and material to the issue
    . . . [,] and presenting such evidence to the court.” For these reasons, the circuit court
    concluded funding for a mitigation investigator was unnecessary.
    ¶37.   Upon review, we find the circuit court’s denial of expert funds for a mitigation
    investigator neither deprived Bass of the opportunity to present his defense during sentencing
    nor rendered his sentencing hearing fundamentally unfair. After thoroughly considering both
    Bass’s requests for expert funding, the circuit court determined Bass established a substantial
    need for a psychologist but not for a mitigation investigator. Because we find no abuse of
    discretion in the circuit court’s decision, we conclude this issue lacks merit.
    VII.   Jury Sentencing
    ¶38.   According to Bass, the circuit court’s imposition of his sentence violated his
    constitutional right to have a jury determine his sentence. In several recent opinions,
    however, this Court rejected the argument that a defendant has a constitutional right to a jury
    sentencing at a hearing conducted under the Miller guidelines. Jones v. State, No. 2015-KA-
    00899-COA, 
    2017 WL 6387457
    , at *4 (Miss. Ct. App. Dec. 14, 2017) (recognizing that no
    constitutional right exists to a jury sentencing in a Miller hearing); Cook v. State, 
    242 So. 3d 865
    , 876 (¶39) (Miss. Ct. App. 2017) (same); Davis v. State, 
    234 So. 3d 440
    , 442 (¶10)
    (Miss. Ct. App. 2017) (“Our state Supreme Court post-Miller has treated life without parole
    as a sentencing option and the trial judge as an appropriate sentencing authority.”).
    ¶39.   In Wharton v. State, No. 2017-CA-00441, 
    2018 WL 4708220
    , at *6-*7 (Miss. Ct.
    17
    App. Oct. 2, 2018), while once again holding that no constitutional right to a jury sentencing
    in a Miller hearing exists, we recognized that a statutory right to such sentencing sometimes
    exists. “To determine the sentencing authority in a Miller hearing, we look to the statute
    under which the juvenile offender was convicted and sentenced, until and unless the
    Legislature prescribes otherwise.” 
    Id. at *7
    . The juvenile defendant in Wharton was
    convicted of capital murder under Mississippi Code Annotated section 99-19-101 (Rev.
    1994). 
    Id. at *4
    . With regard to sentencing under this statute, we explained:
    Specifically, under section 99-19-101’s sentencing scheme, the Legislature has
    vested sentencing authority in the jury, and that authority only allows a
    sentencing proceeding to be conducted before a trial judge without a jury if the
    right to a jury was waived or the defendant [pled] guilty, as follows:
    If the trial jury has been waived, or if the defendant [pled]
    guilty, the sentencing proceeding shall be conducted before a
    jury impaneled for that purpose or may be conducted before the
    trial judge sitting without a jury if both the State of Mississippi
    and the defendant agree thereto in writing.
    Wharton, 
    2018 WL 4708220
    , at *4. Because Wharton neither waived his right to a jury
    sentencing nor pled guilty, we acknowledged that, at his resentencing pursuant to the Miller
    guidelines, he had a statutory right to be resentenced by a jury rather than the trial judge. 
    Id. ¶40
    .   Unlike in Wharton, Bass was not convicted and sentenced under a statute that
    specifically vests sentencing authority solely with the jury. After the jury found Bass guilty
    of first-degree murder, the circuit court sentenced him under Mississippi Code Annotated
    section 97-3-21(1) (Rev. 2014), which provides that “[e]very person who shall be convicted
    of first-degree murder shall be sentenced by the court to imprisonment for life in the custody
    18
    of [MDOC].” (Emphasis added). Because section 97-3-21(1) explicitly vests sentencing
    authority with the court, Bass possesses no statutory right to a jury sentencing. And as
    previously discussed, our recent decisions clearly refute his claim of a constitutional right to
    a jury sentencing at his Miller hearing. We therefore find Bass’s argument regarding this
    issue lacks merit.
    VIII. Sentence of LWOP
    ¶41.   Bass’s appellate attorney argues on appeal that the circuit court erred by sentencing
    Bass to LWOP and that this Court should vacate Bass’s sentence so he can be resentenced
    to life with eligibility for parole. Specifically, Bass’s attorney asserts that the circuit court
    failed (1) to give proper weight to the expert opinion of Dr. Criss Lott, the clinical and
    forensic psychologist who provided a report for Bass’s sentencing hearing, and (2) to
    properly consider and discuss all the Miller factors. In his supplemental pro se brief, Bass
    challenges the legality of his sentence. For the sake of brevity, we address these arguments
    together under one assignment of error.
    ¶42.   Our supreme court recently rejected the argument that heightened scrutiny should
    apply to a review of a trial court’s sentencing decision under Miller. Instead, the supreme
    court stated:
    Heightened scrutiny is reserved for death-penalty cases due to the
    unique and irreversible nature of that punishment. The Court has no
    reasonable basis to raise its standard of review for a sentence in a noncapital
    case simply because it involves a juvenile offender. Accordingly, we hold that
    there are two applicable standards of review in a Miller case. First, whether
    the trial court applied the correct legal standard is a question of law subject to
    19
    de novo review. If the trial court applied the proper legal standard, its
    sentencing decision is reviewed for an abuse of discretion.
    Chandler v. State, 
    242 So. 3d 65
    , 68 (¶7) (Miss. 2018) (citations omitted).
    ¶43.   With regard to sentencing hearings for juvenile homicide offenders, “Miller does not
    prohibit sentences of life without parole . . . . Rather, it ‘requires the sentencing authority to
    take into account how children are different, and how those differences counsel against
    irrevocably sentencing them to a lifetime in prison.’” Parker v. State, 
    119 So. 3d 987
    , 995
    (¶19) (Miss. 2013) (quoting Miller, 
    567 U.S. at 480
    )). Miller identified several factors the
    sentencing authority must consider before sentencing a juvenile homicide offender to LWOP.
    Miller, 
    567 U.S. at 477-78
    .       These factors include the following: (1) an offender’s
    “chronological age and its hallmark features—among them, immaturity, impetuosity, and
    failure to appreciate risks and consequences”; (2) “the family and home environment that
    surrounds [the offender]—and from which he cannot usually extricate himself”; (3) “the
    circumstances of the homicide offense, including the extent of [the offender’s] participation
    in the conduct and the way familial and peer pressures may have affected him”; (4) whether
    the offender “might have been charged and convicted of a lesser offense if not for
    incompetencies associated with youth—for example, his inability to deal with police officers
    or prosecutors . . . or his incapacity to assist his own attorneys”; and (5) “the possibility of
    rehabilitation . . . .” 
    Id.
     Where a “judge determines that Miller does not mandate parole
    eligibility, then the judge must deny relief because the Legislature has provided by law that
    persons convicted of murder are not eligible for parole.” Cook, 242 So. 3d at 873-74 (¶27)
    20
    (citing 
    Miss. Code Ann. § 47-7-3
    (1)(f) (Rev. 2015)).
    ¶44.   In the present case, the circuit court stated that, prior to reaching a decision, it
    carefully considered the witnesses’ testimony and carefully reviewed Dr. Lott’s twenty-
    seven-page report on the factors relevant to determining an appropriate sentence for a
    juvenile homicide offender. In sentencing Bass to LWOP, the circuit court addressed the
    Miller factors. As to chronological age, the circuit court noted that Bass was only about
    seventy days from his eighteenth birthday when he shot Jackson. The circuit court further
    noted that, prior to shooting Jackson, Bass had already compiled an extensive youth-court
    record between the ages of 11 and 17 and had previously used deadly weapons to commit
    crimes. In addition, the circuit court found that Bass’s actions toward Jackson immediately
    prior to the shooting demonstrated a lack of impetuosity (a hallmark feature of the current
    Miller factor). Specifically, the circuit court stated that the threats Bass made to Jackson
    prior to the shooting displayed premeditation and/or an intention to kill Jackson. Based on
    these findings, the circuit court concluded Bass’s chronological age weighed against granting
    parole eligibility under Miller.
    ¶45.   As to Bass’s family and home environment, the circuit court recognized that Bass’s
    family and personal lives were regularly in a state of chaos, that Bass lacked a male role
    model, and that the lack of contact with his father affected Bass. The circuit court also
    found, however, that Bass had denied using drugs or alcohol and that Dr. Lott’s report failed
    to provide a significant psychiatric history on Bass or to identify any particular incidents that
    21
    significantly negatively impacted Bass’s life. The circuit court determined Bass’s family and
    home environment, especially the apparent lack of discipline in Bass’s upbringing, weighed
    partially in favor of parole eligibility.
    ¶46.   In considering the circumstances of Jackson’s murder, the circuit court concluded this
    factor weighed against parole eligibility. Although testimony varied as to where Bass
    obtained the gun he used to shoot Jackson, witnesses repeatedly testified that Bass was the
    shooter and that he shot Jackson in the back of the head. The circuit court also discussed
    Bass’s conduct toward Jackson immediately before the shooting, which included evidence
    that Bass tried to hit Jackson with his car and then verbally threatened to kill Jackson before
    shooting him. In addition, witnesses stated that Jackson was unarmed and was attempting
    to run away when Bass shot him. Based on the circumstances of the homicide, the circuit
    court found that Bass’s actions displayed premeditation and/or an intention to kill Jackson.
    ¶47.   Finally, with regard to the possibility of rehabilitation, the circuit court stated that
    Bass’s youth-court record failed to provide “any positive factors” or “any real substantial
    hope of rehabilitation.” The circuit court noted that Bass’s youth-court record detailed the
    commission of progressively more serious and violent crimes, including those involving the
    exhibition and/or use of a deadly weapon. The circuit court further noted that this
    progression culminated with Bass shooting Jackson in the back of the head. The circuit court
    concluded the evidence “paint[ed] a picture of an individual with little or no regard for the
    value of human life or general decency among his fellow man” and “with little, if any,
    22
    possibility of rehabilitation.” The circuit court therefore found this factor also weighed
    against parole eligibility.
    ¶48.   The circuit court did not directly discuss on the record whether Bass might have been
    charged and convicted of a lesser offense. However, the circuit court specifically provided
    that it conducted Bass’s hearing and determined his sentence pursuant to Miller.
    Furthermore, in concluding its bench ruling, the circuit court stated that it was sentencing
    Bass to LWOP after considering all the factors, Dr. Lott’s assessment, the witnesses’
    testimony, and the evidence presented. See Jones, 
    2017 WL 6387457
    , at *7 (recognizing
    that, while the circuit court did not specifically discuss each Miller factor on the record,
    “[n]either the United States Supreme Court nor the Mississippi Supreme Court has held that
    reversal is required just because the sentencing judge omits some factors from his
    on-the-record discussion of the reasons for the sentence”).
    ¶49.   Upon review, we find the circuit court conducted a hearing as required by Miller and
    only sentenced Bass to LWOP after applying every factor outlined in Miller. As a result, we
    conclude the circuit court applied the correct legal standard. In addition, we cannot say the
    circuit court abused its discretion by sentencing Bass to LWOP. Both the circuit court’s
    bench ruling and its sentencing judgment sufficiently explained the court’s reasoning for
    Bass’s sentence, and substantial evidence supported the circuit court’s findings. We
    therefore find Bass’s assertions regarding this assignment of error lack merit.
    CONCLUSION
    23
    ¶50.   Because we find no error in Bass’s first-degree murder conviction and sentence of life
    without eligibility for parole, we affirm.
    ¶51.   AFFIRMED.
    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
    WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
    24
    

Document Info

Docket Number: NO. 2017-KA-01009-COA

Judges: Irving, Greenlee, Tindell

Filed Date: 12/11/2018

Precedential Status: Precedential

Modified Date: 10/19/2024