Varnado v. State

362 So.3d 127

Cutrell VARNADO a/k/a Cutrell Smith Varnado a/k/a Cutrell S. Varnado, Appellant v. STATE of Mississippi, Appellee

NO. 2021-CP-01073-COA

Court of Appeals of Mississippi.

June 6, 2023

ATTORNEY FOR APPELLANT: CUTRELL VARNADO (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, Jackson

EN BANC.

McDONALD, J., FOR THE COURT:

¶1. On March 29, 2016, Cutrell Varnado pled guilty to first-degree murder in the Simpson County Circuit Court for killing Neoma Durr on September 15, 2014. The circuit court sentenced Varnado to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Varnado filed a pro se motion for post-conviction relief (PCR) arguing that his plea was entered involuntarily and that he received ineffective assistance of counsel. The circuit court denied Varnado's motion, and he now appeals pro se arguing (1) that his guilty plea was not entered into voluntarily, (2) that his conviction and sentence resulted from prosecutorial misconduct, and (3) that he received ineffective assistance of counsel. After a review of the record, we affirm Varnado's conviction and sentence.

FACTS

¶2. On September 5, 2014, the Simpson County Sheriff's Office (SCSO) received a call from Eisenhower Durr stating that upon arriving at his home, he observed a black male and black female running out of the front door and down a pipeline behind his residence. When he went inside his home, Durr found his wife, Neoma Durr, age sixty-four, lying on the floor "possibly" deceased. Neoma was later pronounced dead.

¶3. On September 6, 2014, a caller identifying himself as "Slim" ¹ contacted the sheriff's office and suggested that they speak with Durr about his granddaughter Kiki and her boyfriend. According to Slim, Kiki and her boyfriend had come to Gulfport the day before and left Kiki's son with "a girl named Dee," who was Slim's girlfriend's cousin. Slim stated that Kiki and her boyfriend told Dee that they were going to the casino for a while and would be back later to pick up Kiki's son. Slim stated that when Kiki and her boyfriend returned to pick up the child, "they had blood splatter[ed] on their clothes[,] and Kiki acted like she was very upset." Kiki talked with Dee for a while before leaving with her son. After they left, Dee informed Slim that Kiki said she and her boyfriend did not go to the casino but instead had gone to her grandfather's home to talk to him about getting the rest of her money that was left to her by her deceased parents. Kiki told Dee that upon arriving at her grandfather's house, she and her boyfriend went into the house, but only her grandfather's wife, Neoma, was home. Kiki further stated that they were trying to make Neoma tell them where the money was when they heard someone pull up outside. According to Kiki, upon hearing someone arrive, her boyfriend "freaked out," stabbed Neoma, and the two ran out the back door of the home.

PROCEDURAL HISTORY

¶4. On March 29, 2016, the State filed a bill of information in the Simpson County Circuit Court, which stated that on September 5, 2014, Varnado killed Neoma Durr in violation of Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014). ² Varnado waived the right to an indictment and filed a petition to enter a plea of guilty. Along with his plea petition, Varnado also executed and signed a statement of understanding (a document that outlined how the circuit court would review his plea petition, how his plea hearing would be conducted, and explained Varnado's constitutional rights).

¶5. In his plea petition, which both he and his attorney signed, Varnado stated that he was voluntarily pleading guilty to the crime of first-degree murder and that it was his understanding the State would recommend he receive a sentence of "life with the possibility of parole."

¶6. The circuit court held a hearing on Varnado's plea petition that same day. During the plea hearing, the circuit court questioned Varnado about the voluntariness of his plea, his satisfaction with his attorney's services, and his understanding of his rights. The circuit court also asked Varnado a series of questions to determine whether Varnado had read and understood his plea petition and if his attorney had explained everything to him. Varnado answered in the affirmative to all questions:

Court: All right. The Court has your petition to enter the guilty plea and also your statement of understanding on that petition to enter a guilty plea. Did you go over those two documents with your lawyer?

Varnado: Yes, sir. Your Honor.

Court: Did your lawyer explain those two documents to you?

Varnado: Yes, Your Honor.

Court: Do you understand those two documents?

Varnado: Yes, sir, Your Honor.

¶7. Then the circuit court asked the State to present the facts it would prove against Varnado if the matter went to trial. The State asserted that it would show through the testimony of Durr, various members of the sheriff's office, employees of the Mississippi Bureau of Investigation (MBI), and experts from the Mississippi Crime Laboratory, that on September 5, 2014, two masked individuals (a female and a male) were seen by Durr fleeing from his home, that one of those individuals was Varnado, and that Neoma was found dead inside the home. According to the State, testimony from the State Medical Examiner would also prove that Neoma's death was caused by sharp and blunt force trauma and that the manner of death was homicide. The prosecutor also stated that investigators and experts would testify that Varnado's DNA was found underneath Neoma's fingernails and on the mask Varnado wore during the commission of the crime. The State also had a voluntary statement from Kiki confessing to her and Varnado's involvement in the crime, which corroborated the DNA findings and Durr's eyewitness testimony. At the conclusion of the State's presentation, the Court asked Varnado if he disagreed or had anything to add to what the State said, and he stated, "No, Your Honor."

¶8. After the court confirmed that Varnado understood the charge against him and that he was in fact guilty, the State informed the court that it was recommending a sentence of life imprisonment in accordance with Mississippi Code Annotated section 97-3-21(1) (Rev. 2014). ³ The court questioned Varnado about his understanding of his sentence:

Court: All right. Do you understand that the sentence that is going to be imposed upon you for the commission of this crime is life imprisonment?

Varnado: I do.

Court: Do you understand that?

Varnado: I do.

¶9. The court also interrogated Varnado about his understanding of his eligibility for parole or early release:

Court: Now, you will not be eligible for parole or early release until you obtain the age of 65 years, okay? Do you understand that?

Varnado: Yes, Your Honor.

Court: That doesn't mean you're going to make parole at 65. That just means that you're going –– at that point in time you will become eligible. Do you understand that?

Varnado: I do.

Court: Knowing these things, do you still wish to plead guilty?

Varnado: Yes, Your Honor.

¶10. When questioned about the sufficiency of his attorney's representation, Varnado stated that he was satisfied with his attorney's services and that he had not been promised anything or threatened in any manner by his attorney to plead guilty. At the end of the hearing, the circuit court found that Varnado's plea was knowingly, intelligently, and voluntarily made and that a factual basis existed for the acceptance of Varnado's guilty plea. Thus, the circuit court accepted Varnado's plea and sentenced him to serve life imprisonment.

¶11. The circuit court entered its written final judgment and sentence on the same day. The judgment stated that Varnado was "sentenced to serve a [sic] life imprisonment in accordance with MCA 97-3-21(1)." The order further stated that Varnado "was advised that he is not eligible for parole or early release from the Mississippi Department of Corrections until he attains the age of sixty-five (65) years."

¶12. On September 19, 2018, Varnado timely filed a pro se PCR motion in the circuit court. In his motion, Varnado alleged that (1) his guilty plea was involuntary because it was the product of fear and coercion, (2) his attorney had failed to defend him and impermissibly informed him "that if he didn't take the plea that they would kill him," ⁴ and (3) that he received ineffective assistance of counsel because his attorney allowed the prosecution to present falsified and misleading evidence to the court. Varnado further asserted that his attorney's failure to contest, evaluate, or independently investigate left him in fear for his life, and such fear led him to change his plea of not guilty to guilty.

¶13. In addition, Varnado alleged that an investigator's report falsified the condition of Neoma's body and misled the sentencing court to believe that she had received multiple lacerations and puncture wounds to her torso, thus indicating that Neoma had been tortured. Varnado attached the one-page document, an evidence recovery log, and photos of the victim and crime scene to his PCR motion. Varnado did not attach any other affidavits to his PCR motion, but it appears that Varnado's motion was verified. ⁵

¶14. On July 23, 2021, the circuit court entered an order denying Varnado's PCR motion. In its order, the circuit court stated that Varnado "knowingly, intelligently, understandingly, freely, and voluntarily entered a guilty plea to the charge of first-degree murder." The circuit court further found that at the plea hearing the sentencing judge orally interrogated Varnado and found that Varnado "was thoroughly informed as to the nature and consequences of his guilty plea." The judge also noted that the record indicated that Varnado was pleased with his counsel's performance and that he was not threatened or forced to enter his guilty plea.

¶15. Varnado...