Opinion
2024-M-00201-SCT Serial 252301
08-02-2024
TONY TERRELL CLARK Petitioner v. STATE OF MISSISSIPPI Respondent
ORDER
DAWN H. BEAM, JUSTICE
Before the Court are Tony Terrell Clark's Petition for Permission to Appeal Circuit Court's Order Denying Petitioner's Motion for Discovery and the State of Mississippi's Response in Opposition to Petition for Permission to Appeal Circuit Court's Order Denying Petitioner's Motion for Discovery. After due consideration, the Court finds the petition should be denied.
IT IS, THEREFORE, ORDERED that Tony Terrell Clark's Petition for Permission to Appeal Circuit Court's Order Denying Petitioner's Motion for Discovery is hereby denied.
SO ORDERED.
AGREE:
RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
DISAGREE:
KITCHENS AND KING, P.JJ.
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
Tony Terrell Clark asks permission to appeal the trial court's interlocutory order denying his Motion for Discovery. Because we should grant Clark permission to appeal, I object to the Court's order denying his Petition for Permission to Appeal Circuit Court's Order Denying Petitioner's Motion for Discovery.
Clark was convicted of capital murder and sentenced to death after a trial in the Madison County Circuit Court. At Clark's trial, he objected to several of the State's juror strikes as violating the protections set forth in Batson. For three of the strikes of Black jurors, Jurors Esco-Johnson, Luckett, and Day, the State justified the strikes by alleging that the potential jurors shared the same last names (or in the case of Juror Day, had step-children who shared the same last name), Esco and Luckett, as people who had been arrested for and/or convicted of crimes in Madison County. In support thereof, the State produced two different lists for those two surnames: one listed people prosecuted by the Madison County District Attorney for felonies ("felony-prosecution list") and one listed people on the Madison County jail roster ("jail-roster list"). The defense did not produce any corresponding lists for white jurors at trial as evidence to counter the State's justifications for the strikes. In Clark's direct appeal, this Court predictably found no Batson violations. Clark v. State, 343 So.3d 943, 971 (Miss. 2022).
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 469 (1986).
This Court has a long history of refusing to apply Batson protections to Black jurors, while going out of its way to vociferously apply Batson protections to white jurors. Smith v. State, 2021-CT-01003-SCT, 2024 WL 2971351 at *5, *5 n.3 (Miss. June 13,2024) (King, P.J., dissenting); Clark v. State, 343 So.3d 943, 1016 n.12 (Miss. 2022) (King, P.J., dissenting); Eubanks v. State, 291 So.3d 309,325-27 (Miss. 2020) (King, P.J., dissenting). In Clark's direct appeal, which asked this Court to protect Clark's right to a jury free of racial discrimination in the selection process and Black jurors' right to serve, this Court simply followed its all-too-predictable pattern of refusing to apply proper Batson protections to the State's strikes of Black jurors. Clark, 343 So.3d at 954-71.
Clark filed a motion for post-conviction-proceedings discovery in the trial court, and afterwards, a petition for post-conviction relief (PCR) in this Court. He seeks to show that his counsel was ineffective for failing to show pretext by not offering evidence that white jurors also shared last names with people prominent in the Madison County criminal justice system. Consequently, Clark seeks the jail-roster lists for the last names of the thirty-five potential jurors for whom the State did not produce such lists at trial. Clark is already in possession of the felony-prosecution lists for the last names of those thirty-five jurors. In furtherance of this argument, Clark seeks discovery, asking for the lists from the investigatory files of law enforcement, or, in the alternative, asking for law enforcement to print the jail-roster lists for him, or in the second alternative, asking for access for his PCR counsel to the system that will allow PCR counsel to obtain the jail-roster lists. The trial court summarily denied Clark's request for discovery without a hearing and without making findings. Clark filed a petition for interlocutory appeal with this Court, and this Court also summarily denies Clark's request, despite the fact that this Court's review of death penalty cases is supposed to be undertaken using heightened scrutiny. Lynch v. State, 951 So.2d 549, 555 (Miss. 2007).
The entirety of the trial court's order states:
Before the Court is Defendant's Motion for Discovery which seeks certain evidence to be created or produced by the Madison County District Attorney's Office and Madison County Sheriffs Office. After having reviewed the entire file and being fully advised in the premises, the Court finds that Defendant's motion should be denied.IT IS THEREFORE ORDERED AND ADJUDGED, that Defendant's Motion for Discovery is denied. SO ORDERED, this the 26 day of January, 2024.
Mississippi Rule of Appellate Procedure 5 provides that
An appeal from an interlocutory order may be sought if a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may:
(1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or
(2) Protect a party from substantial and irreparable injury; or (3) Resolve an issue of general importance in the administration of justice.
M.R.A.P. 5(a). Clark's interlocutory appeal certainly contains a substantial basis for a difference of opinion on a question of law regarding the obtaining discovery in PCR proceedings, and its resolution would materially advance the litigation, protect Clark from substantial and irreparable injury, and resolve an issue of general importance in the administration of justice.
Mississippi Rule of Appellate Procedure 22 allows petitioners in death penalty postconviction proceedings to gather information in furtherance of supporting an application for leave to file a motion for post-conviction relief. M.R.A.P. 22. Rule 22 requires the State "make available to post-conviction counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner." M.R.A.P. 22(c)(4)(h). Discovery of other matters is allowed so long as the petitioner indicates that "such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief, and order entered in the sound discretion of the court." Id. Further, the petitioner must indicate the purpose of such discovery. Id. Notably, the petitioner need not prove to any certain degree that the discretionary discovery will render his petition for post-conviction relief successful; he need only show that it is "likely" to be "helpful" in the "investigation, preparation or presentation" of the issues. Id. Thus, if it is "likely" to be "helpful" merely in furthering better investigation, it should be granted. If it is "likely" to be "helpful" in merely preparing his counsel to argue an issue, it should be granted. If it is "likely" to be "helpful" in making a better presentation to the court, it should be granted.
Rule 22 requires the files of all law enforcement and prosecutorial agencies involved in investigating a defendant's case be made available to the defendant. M.R.A.P. 22(c)(4)(ii). The limited record in this case indicates that Clark is in possession of the files from the district attorney's office, but nothing in the limited record indicates that Clark has obtained any files from the sheriffs office that investigated and worked on his case. Thus, it is unclear from record whether he has the entirety of mandatory discovery; indeed, the limited record indicates that he may not have all the mandatory discovery to which he is entitled. Clark asserts that the sheriffs office created the jail-roster lists used at trial by the State, and any such lists may be maintained in any investigatory file on Clark maintained by the Madison County Sheriffs Office. Clark is entitled to the sheriffs files on him, absent the applicability of very limited exceptions, which the State does not raise. Thus, this Court should grant Clark's petition to the extent he has not received the mandatory discovery to which he is entitled under Rule 22. Under Rule 5, granting Clark's petition and reversing the trial court's order to allow him to receive mandatory discovery would protect Clark from substantial and irreparable injury; to wit, he seeks to prove his counsel was ineffective by allowing him to be convicted by a jury tainted by racial discrimination in its selection, and this is his first PCR petition. M.R.A.P. 5(a)(2). Clark will lose most or all of his rights to discovery on this issue and his rights even to raise this issue at all in any successive PCR petitions; thus, this is likely his only substantive bite at this apple. Brown v. State, 255 So.3d 141 (Miss. 2017); Miss. Code Ann. § 99-39-23(6), -27(9) (Rev. 2020); Howell v. State, 358 So.3d 613 (Miss. 2023).
Regarding any discovery that is not already in law enforcement files and that is consequently discretionary, Clark has indicated that the discovery is not frivolous, that it is likely to help him with his claims that his counsel was ineffective for failing to show pretext for the State's juror strikes, and that it will help PCR counsel with investigating this issue. M.R.A.P. 22(c)(4)(ii). It seems obvious that if the lists as applied to the surnames of any white jurors accepted by the State are comparable to the lists used to strike Black jurors, that evidence would support an argument that the State targeted Black jurors and would assist PCR counsel in its investigation of the issue. Indeed, on direct appeal, this Court held regarding the lists and the proof offered at trial that "we cannot say that this source of information or that the State's use of that information was racially discriminatory." Clark, 343 So.3d at 964. Clark is attempting to investigate whether the State's use of the information was indeed racially discriminatory. This Court noted many times in Clark's direct appeal that evidence not placed before the trial court in the Batson arguments could not be considered on direct appeal; the appropriate place to introduce new evidence is this proceeding: Clark's first petition for PCR. Clark, 343 So.3d at 963 ("[W]e will not consider, on direct appeal, rebuttal evidence and arguments that were not presented to the trial court."); Clark, 343 So.3d at 961-62,964-65,967. Clark has met the standards set forth by Rule 22 for obtaining discretionary discovery, and granting his petition for review would consequently materially advance the litigation, as well as protect Clark from substantial and irreparable injury. M.R.A.P. 5(a)(1)-(2).
Additionally, granting Clark's petition would "[r]esolve an issue of general importance in the administration of justice[:]" this case could help determine what evidence a defendant needs to have in order to prove a claim of pretext for the strike of a Black juror. That is, if any sort of evidence even exists that could possibly convince this Court that the State has discriminated against Black jurors. Certainly, freeing the jury selection process from racial discrimination is important in the administration of justice. This Court consistently finds that defendants have not proved pretext when the State strikes Black jurors. This Court now hinders a defendant's attempt to prove pretext. It seems to demand that defense counsel go above and beyond and read the collective mind of the State's prosecutors in order to show pretext, but when a defendant attempts to conduct a thorough investigation to meet this Court's impossibly high standards of proof in Batson cases involving Black jurors, this Court denies him the opportunity by its continued construction of procedural impediments to the proof of pretext. Granting Clark's petition would help clarify whether and how defendants may attempt to prove pretext when the State strikes Black jurors.
This Court should grant Clark's petition for review. It qualifies for interlocutory review under the standards set forth by Rule 5. Further, the trial court misapplied Rule 22 by denying Clark's motion for discovery, and we should reverse its order and grant Clark the discovery he seeks.
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.