Keller v. State

306 So.3d 706

Jason Lee KELLER

v.STATE of Mississippi

NO. 2019-CA-01347-SCT

Supreme Court of Mississippi.

December 10, 2020

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: SCOTT A. JOHNSON, TREASURE R. TYSON

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND, BRAD A. SMITH, Jackson

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. Jason Keller robbed and murdered Hat Nguyen in her Biloxi, Mississippi convenience store. A jury later convicted him of capital murder and sentenced him to death. The Supreme Court of Mississippi affirmed the conviction in Keller v. State , 138 So. 3d 817 (Miss. 2014). On May 25, 2017, the Court granted Keller's motion for leave to proceed in the trial court with a petition for post-conviction relief. Keller argued that his trial counsel was ineffective for failing to investigate and discover significant mitigating evidence. After an evidentiary hearing, the trial judge entered an order denying Keller's request for a new sentencing hearing before a newly empaneled jury. Keller appeals.

FACTS AND PROCEDURAL HISTORY

¶2. On June 21, 2007, Hat Nguyen was robbed and murdered in her convenience store in Biloxi, Mississippi. Keller was found later that day and was pursued by law enforcement. Keller exited his vehicle, displaying what appeared to be a gun. The officers shot Keller, who was then taken to a local hospital. Keller later confessed to the armed robbery and murder. The Supreme Court of Mississippi affirmed the conviction. Keller , 138 So. 3d 817. On June 12, 2015, Keller filed an application for post-conviction relief, arguing that trial counsel was ineffective for failing to investigate and present mitigating evidence. On November 27, 2018, an evidentiary hearing was held, and Keller presented testimony from nine lay witnesses and two expert witnesses to support his ineffective-assistance-of-counsel claim. The lay testimony consisted of friends and family members providing details about Keller's childhood and adolescence.

¶3. Pamela Adams, Keller's half sister, testified at the evidentiary hearing about Keller's childhood. Adams was thirteen when Keller was born. Adams testified that she helped take care of Keller when he was a baby and that Keller was a "normal" child who liked getting into things. Adams explained that when Keller was young, he suffered a severe burn from playing with matches. Adams stated that her parents were good to her siblings and her and that after her parents’ divorce, their father still cared for and provided for the children. Adams had no knowledge of Keller's daily life once he moved in with his biological father, Jerry Bankester. Adams stated she had no personal knowledge that Keller was using drugs daily in his teens.

¶4. Lydia O'Brien, another of Keller's half sisters, provided further testimony of Keller's childhood. The testimony provided by O'Brien is largely cumulative of the testimony provided by Adams. O'Brien testified that Keller's parents were attentive to his needs. O'Brien did not have personal knowledge of Keller's drug use as a teen.

¶5. Sandra Meaut, Keller's third-grade teacher, testified that Keller was a sweet and active boy who sometimes needed help with schoolwork. Meaut requested a meeting with Keller's parents, but they never met with her. Meaut stated that it was not unusual for parents not to meet with the teacher.

¶6. Nancy Sherman, Keller's middle-school special-education teacher, testified that she could not recall Keller's specific learning disability but that it must have been severe if he had been in her class. Sherman further testified that Keller did not get in trouble a lot.

¶7. Charles Kemp, Keller's childhood friend, testified that they were close when they were young. Kemp stated that Keller was often made fun of for his dirty and unkempt appearance. Kemp stated that Keller was not the smartest student but that he seemed average.

¶8. Another childhood friend of Keller's, Chad Spiers, testified that he and Keller used drugs together when they were seventeen. Spiers was unsure if Keller's father ever saw them doing drugs, but Spiers did state that "smoke was everywhere" and that "it was obvious."

¶9. Several other childhood friends and family members provided testimony that was largely cumulative. After the lay testimony was presented, Keller presented expert testimony of Dr. Dale Watson and Dr. George Woods. Watson testified that after a series of tests, he determined that Keller fell within the "mildly impaired range of neuropsychological functioning." According to Watson, mild impairment could affect someone's ability to function in the real world, particularly in a school setting. Watson stated that Keller suffered right-hemisphere dysfunction, which affected his "emotional processing," and frontal-lobe impairment, which related to problem solving, judgment, mental flexibility, and direction of behavior. Additionally, Watson offered testimony about Keller's social and medical history. Watson stated that Keller may have post-traumatic stress disorder (PTSD) from the severe burns he had suffered as a child resulting from the accident with matches. Watson stated that the PTSD was probably less significant than it was in childhood. Watson stated that Keller's drug use made all of his neuropsychological deficits worse. Watson opined that Keller's drug abuse, ADHD, PTSD, low-average IQ, and brain dysfunction were all working together when Keller murdered the victim. Watson testified that someone with Keller's deficits would be able to function sufficiently to support themselves, maintaining the ability to dress themselves, cook, play sports, work lower-level jobs, drive a car, and seek medical treatment if necessary. Watson stated that he was unsure if a lay person would even recognize that Keller had any neuropsychological deficits.

¶10. Finally, Keller presented expert testimony from Dr. George Woods. Woods's testimony focused on his opinion that Keller suffered from "an impairment of neurodevelopmental development that started in the first trimester," as evidenced by Keller's flattened philtrum, a thin upper lip.

¶11. The State called Lisa Collums, Keller's lead counsel during his capital-murder trial, to testify. Collums testified that she spoke to Keller's mother and Christina, his sister. Collums testified that during her defense of Keller she collected his medical records, his school records, and a record of his criminal history. Collums stated that Keller was subjected to a mental evaluation with Dr. Beverly Smallwood and that Smallwood determined that Keller's IQ was in the low-average range. Collums stated that she interacted with Keller quite a bit and that if she had thought Keller had psychological impairments, she would have asked for more testing. Smallwood indicated that "no further forensic evaluation is needed to determine this man's competency to stand trial or his mental status at the time of the alleged offense. However, if this case goes forth as a capital case, a mitigation study regarding this man's psychological functioning is recommended." Collums stated that Keller was subjected to further testing in the form of an IQ test but that no other psychological testing was done.

¶12. Finally, Keller offered comments defending his parents. Keller stated:

I wanted to get mad and angry but I couldn't. But my mother and father being portrayed as bad parents, it's not possible. It's unheard-of. My parents were always there for me, baseball practice, football practice, school. I remember my mom bringing me medicine to school twice a day, not once a day, twice a day.

So for them trying to -- not them, but just people blaming my crime or what I did on that day on my parents is just -- it's wrong.

¶13. The trial judge found that Keller's ineffective-assistance-of-counsel claim could not prevail and denied Keller post-conviction collateral relief. Keller appeals.

STANDARD OF REVIEW

¶14. "On appeal, the appropriate standard of review for denial of post-conviction relief after an evidentiary hearing is the clearly erroneous standard." Johns v. State , 926 So. 2d 188, 194 (¶ 29) (Miss. 2006) (citing Reynolds v. State , 521 So. 2d 914, 917 (Miss. 1988) ). Absent clear error, the Court will not disturb the trial court's factual findings so long as the trial court employed the correct legal standard in its analysis. Carr v. State , 196 So. 3d 926, 942 (¶ 59) (Miss. 2016) (citing McClendon v. State , 539 So. 2d 1375, 1377 (Miss. 1989) ).

DISCUSSION

¶15. Keller argues that his trial counsel was ineffective for failing to discover and to present mitigating evidence during the guilt and sentencing phases of his trial. To prevail on a claim that trial counsel was constitutionally ineffective, the petitioner must meet the test set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court adopted the Strickland test in Stringer v. State , 454 So. 2d 468, 476-77 (Miss. 1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 477 (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). The Court further stated, "[u]nless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). When reviewing ineffective assistance of counsel claims, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial...