author: KING, P. J.,

text:
    Deondray JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01800-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.
    Rehearing Denied July 27, 2004.
    Certiorari Denied Oct. 28, 2004.

      Deondray Johnson, pro se.
    Raymond M. Baum, Winona, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P. J.,

for the Court.

¶ 1. Deondray Johnson was tried and convicted of capital murder by the Circuit Court of Attala County. Johnson was sentenced to life imprisonment without parole in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction Johnson appeals and states his issues as follows.

I. Whether the trial court committed reversible error when it overruled the defendant’s Motion to Dismiss for violation of right to speedy trial.
II. Whether the trial court abused its discretion in refusing to grant a new trial in this cause because the verdict was against the overwhelming weight of the evidence.

¶2. Finding no merit in these issues, this Court affirms.

STATEMENT OF FACTS

¶ 3. Dorothy Broome Jordan owned and operated Dot’s Bar and Grill adjacent to her home in rural Carroll County. While returning home from work in the early morning hours of January 21, 2001, Jordan was accosted in her front yard by an assailant or assailants wielding a piece of wood, and was beaten to death. Jordan’s body was then dragged inside her home and a gun and cash were stolen from her residence. Jordan’s neighbors discovered her body lying in the floor the next morning when they attempted to rouse her in order to purchase cigarettes from her store.

¶ 4. The Carroll County Sheriffs Department was notified and began an investigation. That investigation revealed that on January 21, a crowd had assembled at Dot’s Bar and Grill for the usual activities of drinking, playing cards, and using the gambling machines. In that group were Deondray Johnson and his cousin Lawrence Branch. Johnson and Branch took two of the club’s patrons home, and were to return to pick up Johnson’s mother, Janie Johnson, and Anthony Hayes. Because Johnson and Branch never returned, Jordan took Janie Johnson and Anthony Hayes to Janie Johnson’s home about five miles away.

¶ 5. Upon her return home, Jordan was killed. Johnson and Branch were questioned by sheriffs deputies about her murder. Johnson waived his Miranda rights and denied any involvement in the murder. The home Johnson shared with his mother was searched and no incriminating evidence was found.

¶ 6. Branch was Johnson’s next door neighbor, living in a trailer next to his parents’ house. Branch’s father found a black plastic garbage bag in his yard and turned it and its contents over to the Carroll County Sheriffs Office. Inside the black garbage bag were two white plastic Exxon bags. Inside these bags was a .38 Rossi revolver, some currency and food stamps. The pistol was determined to be Jordan’s, and Johnson’s fingerprints were found on one of the $1.00 food stamps.

¶ 7. On Monday January 23, 2001, Johnson was arrested. The deputies who arrested Johnson noticed what looked like spatters of blood on the hem of his black jeans and on one of the tennis shoes he was wearing. When questioned, Johnson admitted he had been wearing the clothes on the night of Jordan’s murder. The clothes were removed from Johnson and sent to be processed by a DNA analyst. The DNA analyst determined that the spatter on Johnson’s jeans and tennis shoes was blood, and that it matched the DNA genetic profile of Dorothy Jordan.

¶ 8. On April 26, 2001, Johnson and his cousin, co-defendant Lawrence Branch, were indicted for the murder of Dorothy Jordan while engaged in the felony of robbery. On May 1, 2001, Johnson was arraigned in the Circuit Court of Carroll County for capital murder.

¶ 9. At an October 24, 2001 motion hearing, it was suggested that Branch be tried first. The trial judge also entered an order setting the date for the trial of the first defendant, Branch, for March 2, 2002, and the trial for the second defendant, Johnson, for March 25, 2002. A few days later on October 30, 2001, Johnson filed a motion demanding a speedy trial. However, that motion was never pursued.

¶ 10. Branch’s trial was slated to begin on March 2, 2002. However, on February 13, 2002, Branch requested a mental evaluation, which was completed on March 11, 2002. Sometime in February, Branch’s attorney requested that Branch be deemed indigent and co-counsel be appointed. The trial judge granted the request, and granted Branch’s requested continuance. Branch’s trial was re-scheduled for May 20, 2002.

¶ 11. On May 23, 2002, Branch was convicted in the Circuit Court of Carroll County of capital murder and received the death penalty. On May 29, 2002, Johnson filed a motion for change of venue, which was granted. Venue was transferred to Attala County and the trial date was set for September 30, 2002. On September 27, 2002, Johnson filed a motion to dismiss for violation of the right to a speedy trial, which was denied.

¶ 12. On October 3, 2002, the jury convicted Johnson of capital murder. The jury was unable to reach a unanimous verdict in the sentencing phase, and the trial judge sentenced Johnson to life in prison without the possibility of parole.

ISSUES AND ANALYSIS

Whether the trial court committed reversible error when it overruled the defendant’s Motion to Dismiss for violation of right to speedy trial

¶ 13. Johnson asserts that the trial court erred in overruling his motion to dismiss the case for violation of his right to a speedy trial guaranteed by the Sixth Amendment and Fourteenth Amendment to the United States Constitution and by article 3, § 26 of the Mississippi Constitution of 1890. Johnson also argues that the violation of his statutory right to a speedy trial, specifically Mississippi Code Annotated Section 99-17-1 (Rev.2000), which requires that a defendant’s trial begin within 270 days of arraignment, required dismissal of the charges against him.

¶ 14. We begin our analysis with the constitutional issues. A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article 3, § 26 of the Mississippi Constitution of 1890. “When a defendant’s constitutional right to a speedy trial is at issue, the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applicable.” Noe v. State, 616 So.2d 298, 300 (Miss.1993). Speedy trial issues are analyzed by applying the four factors detailed in Barker which include (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Skaggs v. State, 676 So.2d 897, 900 (Miss.1996) (citations omitted). No single factor controls. Id. Furthermore, the court is not strictly limited to consideration of the Barker factors. State v. Magnusen, 646 So.2d 1275, 1278 (Miss.1994). Alleged violations of the right to a speedy trial are decided on a case by case basis, weighing the facts and circumstances and the conduct of the prosecution and the defense. Elder v. State 750 So.2d 540, 542(¶7) (Miss.Ct.App.1999), citing McGhee v. State, 657 So.2d 799, 804 (Miss.1995); Giles v. State, 650 So.2d 846, 851 (Miss.1995).

¶ 15. To determine whether Johnson’s rights were violated this Court examines the Barker factors within the context of this case.

A. Length of Delay

¶ 16. “The supreme court has held that the right to a speedy trial under the United States Constitution attaches immediately upon the defendant’s arrest.” Elder v. State, 750 So.2d 540, 545 (¶ 10) (Miss.Ct.App.1999), citing Box v. State, 610 So.2d 1148, 1150 (Miss.1992). The Court has also held that after the defendant’s arrest a delay of more than eight months before trial is presumptively prejudicial to the defendant, and violative of his right to a speedy trial. Id., citing Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991); Smith v. State, 550 So.2d 406, 408 (Miss.1989). This presumption can be rebutted by balancing the remaining Barker factors. Handley v. State, 574 So.2d 671, 676 (Miss.1990).

¶ 17. To place this issue into perspective, this Court includes the following chronology of events beginning with Johnson’s arrest on the capital murder charge and ending with his trial and subsequent conviction.

April 26, 2001 Indicted on capital murder charge

May 1, 2001 Arraigned on capital murder charge

October 24, 2001 Agreement in the record between Johnson and prosecutor that co-defendant Branch would be tried first

October 24, 2001 Order setting trial for first defendant for March 4, 2002 and for second defendant for March 25, 2002

October 30, 2001 Demand for speedy trial filed

May 23, 2002 Co-defendant Branch found guilty of capital murder and sentenced to the death penalty

May 29, 2002 Motion for change of venue filed and granted by judge

July 16, 2002 Order entered transferring venue

September 26, 2002 Motion to dismiss for violation of right to speedy trial filed by Johnson

September 30, 2002 Trial begins on capital murder charge

October 3, 2002 Johnson convicted of capital murder

¶ 18. Johnson was arrested and charged with capital murder on January 23, 2001, but was not tried for the offense until September 30, 2002. As 614 days elapsed, approximately 20 1/2 months, between the arrest and the trial, the delay in the present ease is presumptively prejudicial and triggers consideration of the other Barker factors.

B. Reason for Delay

¶ 19. Johnson simply argues that the reason for the delay should be attributed to the State unless the prosecutor can produce evidence justifying the delay and persuading the trier of fact that the delay was legitimate. Johnson does not analyze the 614 day delay in his brief, and does not show affirmatively that there was no reason for the delay. Johnson’s entire argument is that the delay alone is sufficient to warrant a new trial. That assertion is not a correct statement of the law.

¶ 20. The State bears the responsibility for bringing a defendant to speedy trial. Turner v. State, 383 So.2d 489, 491 (Miss.1980). However, it is only held accountable for delay caused by its actions. In its brief the State relies on the record and outlines in painstaking detail the reasons for the delay of Johnson’s trial.

¶21. On April 26, 2001, Johnson and Lawrence Branch were indicted for capital murder of Dorothy Broome Jordan. On May 1, 2001, Johnson was arraigned on the charge of capital murder of Dorothy Broome Jordan. From May 1, 2001, until October 24, 2001, the record indicates that no activity occurred and the case was not set for trial.

¶ 22. On October 24, 2001, the prosecution and defense appeared before the trial judge and set the case for trial. At that hearing it was ascertained that DNA samples ordered by the State had not been taken from the defendants. At that time the trial court entered an order requiring that the samples be taken by November 7, 2001. At the hearing Johnson’s counsel, Lee Jones, requested that Branch be tried first since he had confessed on videotape. The following dialogue is from the record:

BY MR. JONES: Realistically, tacitly speaking, I don’t see that the District Attorney’s office can try these together
BY THE COURT: No, they can’t, it is going to be severed. The fact is have they not already been severed?
BY MR. BLECK: I think they have different cause numbers, Your Honor.
BY THE COURT: Yeah, I think they are already — it is automatic severance. What I am going to do....
BY MR. JONES: — The way the evidence lies; that is, they have a video statement from Mr. Branch. Mr. Johnson has not given a statement. Realistically, they have got to try Branch first.
BY THE COURT: Well, I mean I—
BY MR. JONES: — tactically speaking
BY THE COURT: Let me just ask it this way. How long do you think it would — if we have to try your case, how long do you think it would take?
BY MR. JONES: It depends on whether they get him or not.
BY THE COURT: Okay, I am going to set both of these cases for trial the first week in March. The DA will be required to within one week of the return of the DNA Reliagene results, whatever lab results you get, within one week— well, let’s make it to the DNA. Within one week of the return of the DNA results, the State must elect which case is going to be tried and notify Counsel for each defendant.

As the record indicates it was Johnson’s attorney who suggested that Branch be tried first. The trial judge entered an order setting trial for the first defendant on March 2, 2002, and for the second defendant on March 25, 2002. The trial judge indicated that this later setting would allow time for the DNA test results to be returned.

¶23. After the DNA results were returned, the State stated that Branch would be tried first and his trial was to begin on March 2. However, On February 13, Branch filed a motion for a mental evaluation. The evaluation was completed on March 11, 2002, and Branch’s ease was rescheduled for March 25. Also, sometime in February Branch’s counsel requested that the trial judge declare Branch indigent and appoint additional counsel to the case which the trial judge did. After Branch’s case was re-scheduled for March 25 his attorneys asked for a continuance which was granted, and the case was rescheduled a second time. The case was continued until the first week of the next Carrollton term which was the third week of May 2002. Branch was convicted of capital murder, and sentenced to the death penalty on May 23,2002.

¶ 24. On May 29, 2002, after Branch’s conviction and sentence, Johnson filed a motion for change of venue which was granted. The case was transferred to At-tala County and' scheduled to being on September 30, 2002. ¡

¶25. On September 30 2002, Johnson was heard on a motion to dismiss for violation of the right to a speedy trial. The trial judge denied the motion and stated the following in the record:

It is being tried as promptly as the court could get to it and maintain its other dockets. Some of which consist of a four-week term in Grenada in July and August. Also, the motion for speedy trial — there has been no — other than the demand being filed last week, nobody has presented it in open court requesting that the case move any faster than it has moved. Therefore I find that the case has at all times been continued by either agreement of counsel or for good cause shown and that the motion for speedy trial either on constitutional grounds or under the 270-day rule is not well taken and the same is denied.

The trial judge noted that all parties had agreed that Branch would be tried first, and Johnson had filed for a motion to transfer venue- which delayed the case even more. Johnson presented no other argument on the motion except to refer the Court to the brief he filed in support of the motion of which his brief to this Court is a replica.

¶ 26. The only time that must count against the State is the period of time between Johnson’s indictment and the State’s retrieval of DNA evidence from him. One hundred and sixty-four days elapsed between Johnson’s, indictment on April 26, 2001, and- the State’s collecting of DNA samples from him around November 7, 2001.

¶ 27. We find there to be no deliberate procrastination by the State after the DNA was collected. Tolling the clock for the agreement that Branch be tried first on March 2, 2002, and the fact that the Mississippi Supreme Court has said that time set aside for a psychiatric evaluation does not weigh against the State, Elder v. State, 750 So.2d 540, 544 (¶ 16) (Miss.1999), and the addition of an attorney for Branch we find at most 164 days should be counted against the State for its failure to timely collect the DNA evidence. This factor is therefore weighed in favor of the State.

C. Defendant’s assertion of his right to a speedy trial

¶ 28. Although it is the State’s duty to insure that the defendant receives a speedy trial, a defendant has some responsibility to assert this right. Smith v. State, 812 So.2d 1045 (¶ 11) (Miss. Ct App. 2001), citing Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).

¶ 29. Johnson filed a motion demanding a speedy trial on October 30, 2001. However, the record is devoid of any indication thát this motion was ever brought before the judge for a ruling. With the exception of noting the date on which Johnson filed his demand for a speedy trial, Johnson completely fails to discuss the motion in his brief. Johnson also filed a motion to dismiss for violation of his* right to a speedy trial on September 26,' 2002, a few days before the case was set for trial, which Was denied by -the trial judge. Because Johnson did not diligently pursue a speedy trial, this factor is weighed against him.

D. Prejudice to the defendant

¶ 30. “The supreme court has held that prejudice is assessed in the speedy trial context (1) to protect against oppressive pretrial incarceration, (2) for the minimization of anxiety and concern of the accused, and (3) for the limitation of the possibility of impairment of the defense.” Elder v. State, 750 So.2d 540, 545 (¶ 19) (Miss.Ct.App.1999), citing Hughey v. State, 512 So.2d 4, 11 (Miss.1987). “The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudice as a result of delay.” Sharp v. State, 786 So.2d 372, 381 (¶ 19) (Miss.2001).

¶ 31. As to the first element, Johnson argues that the majority of his time while incarcerated at Carroll-Montgomery Correctional Facility in Vaiden, Mississippi was spent in lockdown or solitary confinement. The record indicates that on May 29, 2002, and September 11, 2002, Johnson’s attorney told the trial judge that Johnson was being kept in isolation and solitary confinement. Johnson’s attorney indicated that the warden of the facility said that Johnson was in isolation because he was considered a security risk after his co-defendant had been found guilty of capital murder and given the death penalty. The trial judge responded by stating: “He is incarcerated for capital murder. I will leave it up to the jail to decide what security measures they need. If they think he needs to be locked down, that’s the way it will be.”

¶ 32. As to the second element, Johnson does not elaborate but simply claims that a twenty month incarceration “would cause anyone anxiety and concern,” mentioning again that a substantial amount of his 614 day incarceration was spent in lockdown or solitary confinement.

¶ 33. As to the third element Johnson argues that his continual incarceration from the time of his arrest on January 23, 2001, until his trial on September 30, 2002, was extremely detrimental to his defense. Johnson’s brief states that “obviously incarceration will always affect the defendant’s ability to assist counsel with the preparation of his defense.” Johnson claims that his defense was impaired by the delay because a potential defense witness indicated on Johnson’s response to discovery died before the trial commenced.

¶ 34. The record does not indicate the exact date of the witness’s death, but on cross examination an officer in the sheriffs department, Michael Spellman, testified that the witness died shortly before Johnson’s trial began.

¶ 35. Johnson claims that the testimony of the potential witness was important to his case because the witness was present at the scene on the night in question, and that this witness was the first suspect that law enforcement questioned after the murder. Johnson claims that the testimony would have shown that the witness lost money playing cards and that the victim won money on the night of the murder. Johnson does not indicate the relevance of this testimony. We can only assume that it was to establish a motive to kill Jordan. However, even in so assuming, we are unpersuaded of any prejudice to Johnson. This issue weighs against Johnson.

E. Mississippi Statutory Issues

¶ 36. Johnson claims that his conviction should be overturned because his statutory rights, under Mississippi Code Annotated Section 99-17-1 were violated. Mississippi Code Annotated Section 99-17-1 requires that a defendant’s trial begin within 270 days following arraignment unless good cause be shown. Johnson argues that the prosecution did not show good cause for the delay of 518 days between his arraignment and trial.

¶ 37. As enumerated above, a significant portion of the delay in the trial was a result of the agreement between the prosecution and Johnson that his co-defendant’s trial should be conducted first. There was a trial date set for March 2, 2002, for Johnson’s trial before the co-defendant’s attorney withdrew and he then requested a psychiatric exam. As a result, Johnson’s trial was delayed. Then after his co-defendant received the death penalty Johnson was granted a motion for a change of venue which resulted in further delay due to Attala County’s being a multi-member circuit it has limited number of days for circuit court each year. September 30, 2002, was the first available date for trial. While approximately 114 days can be charged to the State for its delay in collecting a DNA sample we find that good cause existed for the resulting delay.

F. Conclusion

¶ 38. Having applied the Barker factors, to the facts and circumstances of this case, we find that Johnson’s constitutional and statutory rights to a speedy trial were not violated.

II.

Whether the trial court abused its discretion in refusing to grant a new trial in this cause because the verdict was against the overwhelming weight of the evidence

¶ 39. Johnson claims that the lack of any eyewitnesses, physical evidence, or other tangible proof causes the verdict to be against the overwhelming weight of the evidence. When reviewing a claim that the verdict is against the overwhelming weight of the evidence a new trial will not be ordered unless the reviewing court is convinced that “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Elder v. State, 750 So.2d 540, 545 (¶ 22) (Miss.Ct.App.1999), citing Johnson v. State, 642 So.2d 924, 928 (Miss.1994); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). For the appellate court to uphold the verdict of the jury, all that is required is that an actual factual dispute was presented to the jury for determination. Elder, 750 So.2d 540 at 545, citing Groseclose, 440 So.2d at 300.

¶ 40. In his argument, Johnson also challenges the sufficiency of the evidence. The sufficiency of the evidence is challenged by motions for directed verdict or judgment notwithstanding the verdict. Elder v. State, 750 So.2d 540, 545 (IT 23) (Miss.Ct.App.1999), citing McClain v. State, 625 So.2d 774, 781 (Miss.1993). In determining sufficiency, credible evidence must be viewed in the light most favorable to the verdict and must be accepted as true. Elder, 750 So.2d at 545, citing Wetz, 503 So.2d at 808. The reviewing court will reverse only “where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.”. Id.

¶41. In his argument Johnson claims that state witness Anthony Hayes’ testimony was uncontradicted that Johnson arrived home at 5:00 a.m. It is Johnson’s argument that Hayes’ testimony exonerates him from having committed the crime. Johnson also argues that, according to the forensic pathologist, livor mortis had not occurred in Jordan’s body at approximately 5:00 a.m.; therefore, he could not have committed the crime. Johnson further argues that no evidence exists in the record to support a conviction of robbery.

¶ 42. The elements of robbery were established through the testimony of Carroll County Sheriff Dan Gray. Gray testified that Branch’s father, Johnson’s neighbor, turned over a plastic bag he found near his trailer. Inside that bag was a .38 Rossi revolver handgun, some cash, food stamps and coin wrappers. Gray testified that the revolver was positively identified as belonging to Jordan, and Johnson’s fingerprint was found on one of the food stamps from inside the bag.

¶ 43. Michael Spellman of the Carroll County Sheriffs Office testified that he found a piece of wood that looked like it had hair and blood on it near Jordan’s truck. Spellman also testified that he found pieces of wood close to Johnson’s home that were similar in color, size, and texture to the one found at the crime scene.

¶ 44. Joe Andrews, forensic expert, testified that the two broken pieces of wood found near the crime scene matched each other indicating they were originally one piece of wood. Andrews also testified that the two pieces of wood were similar in size, texture, thickness, and grain texture to the wood found near Johnson’s home.

¶ 45. Johnson admitted to sheriffs deputies that the wood could have come from his yard when he said that his cousin, Lawrence Branch, probably got the wood from his yard and that is was probably the murder weapon.

¶ 46. On January 23, the day Johnson was arrested, he admitted to sheriffs deputies that he had been wearing the same clothes since January 21, the morning of Jordan’s murder. Deputies noticed a spot of blood on the hem of the jeans as well as the tennis shoes that Jordan was wearing.

¶47. Chris Larsen, a forensic DNA analyst, testified that the genetic material found on the wood, the jeans and the shoes Johnson was wearing were consistent with the genetic profile of Jordan. Larsen testified that the degree of consistency of the match was one in greater than 10 billion.

¶ 48. The Carroll County coroner testified that he got a call regarding Jordan’s murder at 4:50 p.m. The coroner testified that he arrived on the scene, found the body lying face down and turned it over. Pictures from the scene which were admitted into evidence show a trickle of blood running down Jordan’s face after her body had been turned over. The forensic pathologist who examined Jordan’s body post-mortem testified. He testified that livor mortis had not set in when the coroner turned Jordan’s body over as evidenced by the blood running down her face in the picture. His testimony described livor mortis as a the condition of the body post-mortem when blood sets and will not move even under pressure. The forensic pathologist also testified that livor mortis normally occurs “at about 8-10 hours.”

¶ 49. All inferences must be considered in the light most favorable to the State. McClain, 625 So.2d at 781. The livor mor-tis argument that Johnson posits is speculative at best; as such we find no merit to this issue.

¶ 50. The evidence was sufficient and offered substantial credible evidence upon which a jury could, and did base a verdict of guilty to capital murder with the underlying felony being robbery. There is accordingly no merit to this issue.

¶ 51. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO ATTALA COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . Ida G. Dox, Gilbert M. Eisner, June L. Mel-loni, and B. John Melloni, Attorney’s Illustrated Medical Dictionary, L45 (West Publishing Company 1997), Livor mortis: A reddish blue to purple coloration of the dependant, non-compressed skin surfaces of a corpse; caused by cessation of circulation and resulting gravitational settling of blood in the minute blood vessels (capillaries) just below the skin. The coloration is occasionally misinterpreted as bruising (contusion) by those unfamiliar with the phenomenon. The process begins immediately after death and usually becomes evident within two hours after death. Those areas of the body that have been in contact with a hard surface appear blanched, an important factor in determining whether the body was moved after death. Also called livor; lividity; postmortem lividity; cadaveric lividity; postmortem hypostasis.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Donald JONES a/k/a Donald McArthur Jones, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-02003-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.
    Rehearing Denied Aug. 10, 2004.
    Certiorari Denied Oct. 28, 2004.

      Donald Jones, Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, C.J., THOMAS and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Donald Jones entered a guilty plea to manslaughter in the Hinds County Circuit Court on June 6, 2000. In October of 2002, Jones filed a motion for post-conviction relief which was dismissed by the circuit court. Jones timely perfected his appeal from the dismissal and raises the following four issues.

ISSUES PRESENTED

I. Was Jones improperly induced through a misrepresentation by defense counsel that the prosecuting attorney would make no sentence recommendation on an open plea?

II. Was Jones’ guilty plea knowingly and voluntarily entered?

III. Was the sentence imposed on Jones disproportionate to other terms of confinement ordered in similar circumstances by the trial court?

IV.Was Jones denied effective assistance of counsel?

STATEMENT OF FACTS

¶ 2. On April 6, 1999, Jones was indicted by a Hinds County grand jury for killing Arthur Johnson on New Year’s Day 1999, in violation of Mississippi Code Annotated Section 97-3-19(1) (Rev.2000). On June 6, 2000, Jones pled guilty to the lesser offense of manslaughter. The plea was accepted. The trial judge continued the case until June 23, 2000, to allow the preparation of a pre-sentence report. On June 29, 2000, the trial court reviewed the pre-sentence report which included a sentence recommendation by the State. In the report, the State recommended the “maximum penalty according to the law” which was twenty years. See Miss.Code Ann. § 97-3-25 (Rev.2000). The trial judge sentenced Jones to twenty years with two years suspended and eighteen years to serve in the custody of the Mississippi Department of Corrections.

¶ 3. On October 14, 2002, Jones filed a pro se motion for post-conviction relief pursuant to Mississippi Code Annotated Section 99-39-5 (Rev.2000). Jones argued four points of error: his guilty plea was improperly induced by misrepresentations of defense counsel; his guilty plea was not knowingly and voluntarily made; his sentence was disproportionate to other sentences by the same trial court; and he was denied effective assistance of counsel. The circuit court dismissed the motion for post-conviction relief. Jones now appeals to this Court arguing the same four issues.

STANDARD OF REVIEW

¶ 4. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Brister v. State, 858 So.2d 181, 182 (¶ 4) (Miss.Ct.App.2003) (citing Graves v. State, 822 So.2d 1089, 1090 (¶ 4) (Miss.Ct.App.2002)).

LEGAL ANALYSIS

I. WAS JONES IMPROPERLY INDUCED THROUGH A MISREPRESENTATION BY DEFENSE COUNSEL THAT THE PROSECUTION WOULD MAKE NO SENTENCE RECOMMENDATION ON AN OPEN PLEA?

¶ 5. Jones asserts that his guilty plea was induced through an unfulfilled promise that the prosecutor would not make a sentencing recommendation on his open plea of guilty. Jones argues that he relied on his counsel’s representation that no sentence recommendation would be made. Jones relies on a letter written by his trial counsel, Andre’ de Gruy, as the basis of his argument. Apparently, after the plea and sentencing Jones wrote to Mr. de Gruy for advice on his case. That letter is not contained in the record for our review. However, the record does contain a letter from Mr. de Gruy to Jones. In that letter, de Gruy explained to Jones that he, as a public defender, could not represent Jones on the motion for post-conviction relief. Attorney de Gruy did give Jones some guidance on his legal claims.

¶ 6. Jones relies on a portion of that letter which states:

The issue as I see it is: You plead guilty only because the prosecutor reduced the charge to manslaughter and said she would make no recommendation. She had offered 15 years to serve but you said no to that. It was only after she agreed to make no recommendation did you agree to plea. That was the deal and she violated the agreement when she put in that Pre-Sentence Investigation Report that she wanted the maximum of 20 years and then argued to the court to give you 20 years. As your attorney I did not object to the PSI report or the argument. The reason I did not object, for your information, is that I was arguing for the 1 year alternative sentence and did not think it would be helpful for the judge to know the 15 year offer.

Jones provides this Court nothing but the unsworn letter from his former counsel to support his claim of misrepresentation. Jones failed to support his motion with affidavits from his counsel or other persons with knowledge of this matter. As such, Jones has failed to meet his burden for establishing his case for post-conviction relief on this issue. Bohreer v. State, 812 So.2d 256, 258-59 (¶ 9) (Miss.Ct.App.2002).

¶ 7. The only detail in the record regarding Jones’ plea with the State is contained in the Pre-Sentence Investigation Report. In the report, Jones’ plea is described by the State as an “open plea.” This Court has held that an open plea does not “designate any specific recommendation that the State [will] offer.” Brasington v. State, 760 So.2d 18, 27 (¶ 43) (Miss.Ct.App.1999). We held that in a situation where the defendant agrees to an open plea, the State is not bound by any agreement to offer a specific recommendation. Id. Similarly to Brasington, Jones provides this Court with no proof that a plea agreement existed, or that the State violated such an agreement other than his own assertions. According to Brasington, Jones could enter an open plea and the State could properly recommend a sentence to the trial court. This issue is without merit.

II. WAS JONES’ GUILTY PLEA KNOWINGLY AND VOLUNTARILY ENTERED?

¶ 8. Jones argues that his guilty plea to manslaughter was not knowingly and voluntarily entered because the trial judge failed to advise him of the critical elements of manslaughter. Rule 8.04(A)(3) & (4) of the Uniform Circuit and County Court Rules addresses the issue of the voluntariness of guilty pleas and outlines the measures the trial judge must take upon the accused entering a plea of guilty. The rule states:

3. Voluntariness. Before the trial judge may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; ‘ if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/ her if (s)he is indigent.

A plea is deemed voluntary and intelligent if the defendant is advised regarding the nature of the charge against him and the consequences of his plea. Rankins v. State, 839 So.2d 581, 584 (¶ 12) (Miss.Ct.App.2003). The burden is on the petitioner to prove by a preponderance of the evidence that the plea was involuntarily entered. Id. Solemn declarations made in open court carry a strong presumption of verity. Fairley v. State, 812 So.2d 259, 263 (¶ 11) (Miss.Ct.App.2002).

¶ 9. In order to ensure that Jones had been properly advised and adequately understood the consequences of his plea, the trial judge questioned Jones on the record regarding the requirements of Rule 8.04(A)(4). Jones responded (1) that he had fully discussed the facts and circumstances of the offense with his attorney, including a discussion of possible defenses and elements of the crime of manslaughter, (2) that he was satisfied with his attorney’s representation, (3) that he understood certain constitutional rights were available to him and that by pleading guilty he was waiving those rights, (4) that he committed the offense for which he was charged, (5) that he was not on drugs or other medications or being treated for a mental illness and (6) that he was not induced to plead guilty by threats or intimidation or by promises of leniency.

¶ 10. The judge made a finding on the record that Jones’ guilty plea was freely, knowingly and voluntarily made. In response to Jones’s specific claim that the trial judge failed to advise him of the critical elements of manslaughter, the record indicates that the judge specifically asked Jones if he discussed the elements with his attorney. Jones replied that he had. Furthermore, the trial judge followed the guidelines of Rule 8.04(A)(3) & (4). Jones’ guilty plea was knowingly and voluntarily entered.

III. WAS THE SENTENCE IMPOSED ON JONES DISPROPORTIONATE TO OTHER TERMS OF CONFINEMENT ORDERED IN SIMILAR CIRCUMSTANCES BY THE TRIAL COURT?

¶ 11. Jones contends that the sentence imposed on him by the trial court is disproportionate to the sentences imposed on similarly situated defendants within the same circuit court district. In his appellate brief, Jones cites several cases from the Hinds County Circuit Court where other defendants pled guilty to manslaughter and received shorter sentences than he received.

¶ 12. The State correctly argues that the imposition of a sentence is within the discretion of the trial court. Holt v. State, 757 So.2d 1088, 1089 (¶ 7) (Miss.Ct.App.2000) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). The sentence imposed is not subject to appellate review if it is within the statutory limits. Rodriguez v. State, 839 So.2d 561, 564 (¶ 11) (Miss.Ct.App.2003). Mississippi Code Annotated Section 97-3-25 (Rev.2000) states: “Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years.” The trial judge sentenced Jones to twenty years with two years suspended and eighteen years to serve. The sentence imposed on Jones was within the applicable statutory guidelines.

¶ 13. A sentence may be attacked under the Eighth Amendment based on the argument that the sentence is disproportionate to the crime committed. McCoy v. State, 820 So.2d 25, 32 (¶ 18) (Miss.Ct.App.2002) (citing White v. State, 761 So.2d 221, 229 (¶39) (Miss.Ct.App.2000)). The Eighth Amendment forbids prison sentences that are “disproportionate to the crime committed.” Holt, 757 So.2d at 1089 (¶ 7) (citing Solem, 463 U.S. at 284, 103 S.Ct. 3001). However, the Eighth Amendment does not require that all sentences be subject to a proportionality analysis. Holt, 757 So.2d at 1090 (¶ 8). The proportionality analysis is applicable only when an inference of gross dispropor-tionality appears from the comparison of the crime to the sentence imposed. Hoops v. State, 681 So.2d 521, 537 (Miss.1996) (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). Considering Jones’ sentence, we find that a threshold comparison of the crime to which Jones admitted his guilt in the form of a guilty plea, manslaughter, to the sentence imposed by the trial court, does not raise an inference of gross dispro-portionality. Therefore, a proportionality analysis is not needed.

¶ 14. Jones’ argument goes to the second prong of the proportionality analysis of Solem: a comparison of the sentence imposed with sentences imposed on other criminals in the same jurisdiction. The argument is similar to the one made by the appellant in Womack v. State, 827 So.2d 55 (Miss.Ct.App.2002). In Womack, this Court held that while other similarly situated defendants in the same circuit court district as Womack received less severe sentences than he did, “this fact alone does not prove that the sentences imposed here are grossly disproportionate to the crime committed.” Womack, 827 So.2d at 59 (¶ 13). Similarly, the fact that other criminal defendants in Hinds County Circuit Court who pled guilty to manslaughter received shorter sentences than Jones has no decisive bearing on whether or not his sentence is disproportionate. The determination of proportionality relates back to the issue of statutory guidelines in sentencing. According to our prior decisions, we find no disproportionate sentencing since Jones’ sentence was within the statutory limits of Mississippi Code Annotated Section 97-3-25.

TV. WAS JONES DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 15. Jones contends that his trial counsel rendered ineffective assistance of counsel by misrepresenting to him that the State would make no sentence recommendation. Jones argues that based upon his attorney’s misrepresentations about sentencing he was induced into pleading guilty to manslaughter. Jones argues that he pled guilty because the prosecutor reduced the charge to manslaughter and said that she would make no recommendation on his sentence.

¶ 16. In order to prevail on a claim for ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the petitioner. Beall v. State, 768 So.2d 949, 951 (¶ 7) (Miss.Ct.App.2000) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The two-prong test of Strickland “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Beall, 768 So.2d at 951 (¶ 7). This burden of proof by the petitioner is met with the strong rebuttable presumption that “counsel’s conduct falls within the broad spectrum of reasonable professional assistance.” Walker v. State, 703 So.2d 266, 268 (¶ 8) (Miss.1997).

¶ 17. Jones “must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Finley v. State, 739 So.2d 425, 428 (¶ 8) (Miss.Ct.App.1999) (quoting Ford v. State, 708 So.2d 73, 75 (¶ 8) (Miss.1998)). Jones argues that his attorney was deficient for misrepresenting to him that the prosecution would not make a sentence recommendation. The only proof Jones provides to this Court regarding the alleged deficiency by his attorney are his own allegations in his brief and the unsworn letter from Mr. de Gray. Jones “must prove that, under the totality of the circumstances, prejudice resulted from a deficiency in [trial] counsel’s performance.” Earley v. State, 595 So.2d 430, 433 (Miss.1992). In addition, such deficiencies must be presented with specificity and detail. Perkins v. State, 487 So.2d 791, 793 (Miss.1986). Jones falls short of meeting his burden on his ineffective assistance of counsel claim due to his failing to provide this Court with proper proof of misrepresentation and how that alleged misrepresentation prejudiced his case. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: BRIDGES, P.J.,

text:
    Charlie E. HENLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KM-01542-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.

      Bo Roland, Attorney for Appellant.
    Office of the Attorney General by Charles W. Maris, Attorney for Appellee.
    Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   BRIDGES, P.J.,

for the Court.

¶ 1. On July 7, 2002, Charlie E. Henley was stopped by Officer Steven S. Clark of the Mississippi Highway Patrol for driving in excess of the posted speed limit. After asking Henley to produce his driver’s license and proof of insurance, Officer Clark requested that he exit and step to the rear of the vehicle. Upon questioning, Henley admitted to having consumed two and a half beers seven hours prior to being stopped, so Officer Clark then requested that Henley perform a few field sobriety tests and submit to a preliminary breath analysis. Henley consented and was subsequently arrested for driving under the influence of alcohol (DUI).

¶ 2. Henley was then transported to the Amite County Sheriffs Department where he submitted to a breath analysis on an Intoxilyzer 5000, which produced a printout registering his blood-alcohol content in excess of the legal limit. As a result, Henley was booked into the custody of the sheriffs department. At trial, the Justice Court of Amite County found Henley guilty of speeding and DUI-first offense and ordered him to pay fines and court costs equaling $77 for the speeding offense and $445 for the DUI conviction. Henley then appealed to the Circuit Court of Am-ite County, which affirmed and additionally ordered him to attend a ten-day Mississippi Alcohol Safety Education Program. Aggrieved by his conviction, Henley now appeals to this Court claiming that (a) the trial court committed reversible error in determining that Officer Clark was qualified to administer the Intoxilyzer test, and (b) the verdict was against the overwhelming weight of the evidence.

I.

ADMISSIBILITY OF RESULTS FROM BREATH TEST

¶ 3. The results of a breath test must be valid to be admitted into evidence, which means the State must show that the results are authentic. In Johnston v. State, the Mississippi Supreme Court specified that the results are only valid if (1) performed according to approved methods; (2)performed by a person certified to do so; and (3) performed on a machine certified to be accurate. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Trial courts are largely vested with the discretion for determining the relevance and admissibility of evidence, and as a result, reversal is only warranted when the appellate courts find an abuse of that discretion. Id. This discretion, however, “must be exercised within the bounds of the Mississippi Rules of Evidence.” Id.

¶ 4. Henley claims that the results of his breath test are not valid, and thus inadmissible, because the State failed to prove that Officer Clark was qualified to perform a breath analysis with the Intoxi-lyzer 5000. Henley contends that the State was erroneously allowed, over objection by the defense, to introduce into evidence a copy of Officer Clark’s permit authorizing him to perform such analysis. Henley maintains that the State failed because this copy of the permit was not certified, constituted inadmissible hearsay, was unreliable, and extremely prejudicial.

¶ 5. After reviewing the evidence before us, though, we are certain that the trial court committed no such abuse. The State had to prove as part of its authenticity burden that Henley’s breath test was “performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis.” Miss.Code Ann. § 63-11-19 (Supp.2003). This statute, however, “is not a rule of evidence,” so that evidence “otherwise admissible” will not be excluded because of failure to comply with the statute. Jones v. State, 858 So.2d 139, 143(¶ 10) (Miss.2003).

¶ 6. The fact that the copy of Officer Clark’s permit was not certified is inconsequential because the same result was effectuated by him testifying at trial. When asked about the copy on direct examination, he testified that “[tjhis is my permit to conduct breath analysis on the Intoxi-lyzer 5000.” Officer Clark was then subject to cross-examination on any and all matters concerning his knowledge and experience with the machine. Accordingly, the trial court properly admitted the permit into evidence, and the State proved that Officer Clark was certified to perform the breath test in compliance with Section 63-11-19. We, therefore, find no merit with this issue.

II.

OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 7. In his second assignment of error, Henley briefly discusses a variety of instances in the course of the trial where the court was presented with conflicting testimony, alluding to the fact that the verdict was contrary to the overwhelming weight of the evidence. A prerequisite to raising an issue on appeal, however, is to properly preserve the issue for appellate review. As we have often stated, this Court cannot hold a trial judge in error on a matter with which he was not presented for decision. Cooper v. Lawson, 264 So.2d 890, 891 (Miss.1972). As a result, Henley is proeedurally barred from raising the issue for the first time on appeal, so we find this issue to be without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF AMITE COUNTY OF CONVICTION OF SPEEDING AND FIRST-OFFENSE DUI AND ORDER TO PAY FINES OF $498.00 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


text:
    Rodney Gadis PORTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00432-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.

      Daphne L. Pattison, Felicia Dunn Burkes, attorneys for appellant.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.

      Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   BRIDGES, P.J.,

for the Court.

¶ 1. Rodney Gadis Porter was convicted in the Circuit Court of Harrison County, First Judicial District, of one count of murder and of one count of taking possession of or taking away a motor vehicle and sentenced to serve concurrent terms of life and five years, respectively, in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment, Porter now appeals to this Court raising three issues.

STATEMENT OF THE ISSUES

I. Did the trial court commit reversible error in denying Porter’s jury instructions on self-defense?

II. Did Porter’s counsel render constitutionally ineffective assistance, thus warranting a new trial?

III. Does the cumulative effect of the errors made throughout trial constitute reversible error?

FACTS

¶ 2. On December 29, 2000, Rodney Gad-is Porter, being under the legal age to purchase alcohol, contacted David Fleming, an acquaintance who had previously assisted in such a situation, informing Fleming of his desire to get some beer. Fleming agreed and subsequently left his house to pick up Porter and purchase the beer. Afterwards, both returned to Fleming’s residence and proceeded to drink. At some point, Fleming offered Porter a couple of unidentified pills, which Porter accepted and then ingested. Shortly thereafter, Porter began feeling light headed and dizzy, so he went to Fleming’s bedroom to lie down. A few minutes later, Fleming entered the bedroom, removed Porter’s clothes, and sodomized him. Porter then passed out.

¶ 3. Porter awakened the following morning to find himself lying on the bed naked. After briefly searching the house, he surmised that he was alone, so he readied himself to leave. In his preparation, he retrieved the automatic pistol that he had brought with him to Fleming’s house but had hidden in the bathroom upon arrival. Porter then made his way to the front door when he realized that he was unable to leave because every door and window in the house was secured by burglar bars, so he waited for Fleming to return.

¶ 4. When Fleming entered the house and closed the front door, Porter fired the gun, which struck Fleming in the face killing him. Porter subsequently dragged Fleming’s body to another room, wrapped it in a sheet, and then attempted to clean up. Afterwards, he fled in Fleming’s car.

¶ 5. The body was not discovered for approximately three weeks when local authorities went to the house to investigate a complaint by neighbors of a malnourished dog in Fleming’s yard. Once under the scrutiny of the ensuing murder investigation, Porter agreed to give a recorded statement, which implicated him in Fleming’s murder and the taking of Fleming’s car.

ANALYSIS

I.

Jury Instruction on Self-Defense

¶ 6. Porter maintains that the trial court committed reversible error in denying his jury instructions on self-defense. The standard demanded of this Court when reviewing jury instructions requires that we read them as a whole with no single instruction taken out of context, and although Porter is entitled to have the jury-instructed as to his theory of the case, his “entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Smith v. State, 802 So.2d 82, 88(¶20) (Miss.2001) (citations omitted) (emphasis added). After careful review, we are of the opinion that the trial court’s ruling was proper, for the evidence on record is insufficient to support Porter’s requested self-defense instruction.

¶7. Porter’s self-defense theory, and thus the subsequent request for a self-defense instruction, is centered around his testimony in which he stated, “Truly, you know, I don’t know if you call it self-defense, but to me, the f- deserved it.” This statement by Porter is highly questionable as to whether it actually even placed the theory of self-defense before the court. Moreover, the mere statement by a defendant that his actions were the product of self-defense “is wholly incapable by itself of raising a factual question requiring its submission to the jury.” Strong v. State, 600 So.2d 199, 203 (Miss.1992) (citations omitted).

¶ 8. Assuming the self-defense theory was properly presented at trial, entitlement to a self-defense instruction demands bolstering by evidence “from which the jury may conclude that a defendant was justified in having committed the homicide because he was, or had reasonable grounds to believe that he was, in imminent danger of suffering death or great bodily harm at the hands of the person killed.” Id. Porter testified that while waiting on Fleming to return the following morning, thoughts of the preceding evening enraged him, and after Fleming entered the house, but before any verbal exchange between them, Porter shot Fleming. Porter claims his fear of harm resulted from the fact that Fleming stood in front of the door, as though to prevent any attempt by Porter to leave. Relying on this evidence alone, Porter failed to demonstrate sufficient provocation by Fleming at the time of the murder to justify a self-defense instruction. Accordingly, we find this issue without merit.

II.

Ineffective Assistance of Counsel

¶ 9. Porter claims that the deficiencies of his counsel at trial constitute ineffective representation, so he should be granted a new trial. He raises this issue for the first time on appeal, but having retained new counsel, he avoids any procedural bar. Porter asserts that the principal grounds, upon which his contention is founded, are the failures of his counsel (a) to make proper objections during the testimony of various State witnesses, (b) to stipulate as to Fleming’s sexual orientation, and (c) to call witnesses for the purpose of advising the jury of Porter’s history of mental illness.

¶ 10. Porter unquestionably possesses the legal right to now raise the issue of ineffective assistance of counsel. However, on direct appeal, Mississippi appellate courts are limited in their review to the record of the trial court, so addressing the merits of an ineffective assistance claim “requires that (1) the record affirmatively show ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101(¶ 5) (Miss.Ct.App.1999).

¶ 11. The limitation of appellate review is essentially attributable to the fact that normally the evidence contained in the trial court record is insufficient to fully evaluate the claim. Pittman v. State, 836 So.2d 779, 787(¶38) (Miss.Ct.App.2002). So, when presented with situations:

where the issue is raised on appeal but the matter cannot be resolved without additional fact-finding, the proper course for the appellate court is to deny relief without prejudice to the defendant to raise the same issues anew in a post-conviction relief proceeding where, if appropriate, the trial court can conduct a full evidentiary hearing.

Sharp v. State, 862 So.2d 576, 579-80(¶ 11) (Miss.Ct.App.2004) (citing Miss.Code Ann. § 99-39-19 (Rev.2000); Read v. State, 430 So.2d 832, 837 (Miss.1983)).

¶ 12. Claims of ineffective assistance of counsel require the defendant to satisfy the two-prong test enumerated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). Under the test in Strickland, the defendant:

must [first] 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. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless 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.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Strickland standard is applied under the strong but rebuttable presumption that counsel is competent and conduct at trial is reasonable, and appellate review of counsel’s performance requires considering the totality of the circumstances for determining whether counsel’s actions were both deficient and prejudicial. Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985).

¶ 13. In considering Porter’s first contention that his counsel’s failure to make various objections at trial constituted ineffective assistance, we are unconvinced from our review of the record that his claim is sufficient to rebut the presumption from Leatherwood that his counsel was competent and conducted trial in a reasonable manner. Proper evaluation of Porter’s two other contentions, that his counsel failed to stipulate as to Fleming’s sexual orientation and to call witnesses for the purpose of advising the jury of Porter’s history of mental illness, requires an examination of evidence beyond the record before this Court, and for that reason, Porter’s entire ineffective assistance claim is better considered in post-conviction relief.

III.

Cumulative Error

¶ 14. In his final contention, Porter maintains that, in the event that the individual errors throughout his trial are deemed harmless, the cumulative effect of these errors deprived him of a fundamentally fair trial, which requires this Court to reverse his conviction. However, when we find no reversible error in any single part of the trial, we certainly cannot find reversible error as to the whole, so as a result, we find this issue to have no merit McFee v. State, 511 So.2d 130, 136 (Miss.1987).

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE; COUNT II TAKING POSSESSION OF A MOTOR VEHICLE AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER,'GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    Michael MILLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00016-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2004.
    Gus Grable Sermos, Summit, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, C.J., LEE, P.J., IRVING and MYERS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On November 15, 2002, a jury in the Circuit Court of Walthall County found Michael Miller guilty of capital murder. Miller was sentenced to serve a term of life in prison without parole in the custody of the Mississippi Department of Corrections. Miller then filed a motion for a judgment notwithstanding the verdict or, in alternative, for a new trial. The trial judge denied this motion on December 12, 2002. Miller now appeals to this Court asserting that the trial judge erred in denying his motion for a judgment notwithstanding the verdict.

FACTS

¶ 2. On March 3, 2002, Ruby Daughtery discovered the body of Clarence Stiner, her father, dead in his home. Stiner had died from a gunshot wound to the back of the head. Forensics determined that Stiner had been killed sometime on the morning of March 1. Over the course of the investigation, Miller gave three audiotaped statements and one videotaped statement to the sheriffs deputies. On the first audiotape, Miller stated that a man named Rick killed Stiner, but that he did take $430 dollars from Stiner’s pocket after Stiner was killed. On the second audiotape, Miller stated that Rick and another man, Teamus Magee, were both present at the time Rick shot Stiner. Miller again said that he took $430 out of Stiner’s pocket, but also that Rick took money out of Stiner’s wallet. On the third audiotape, Miller said that he had killed Stiner, hid the gun between two mattresses, and took $430 out of Stiner’s pocket. On the videotaped statement, which was taken approximately three weeks after the audiotaped statements, Miller recanted his earlier confession, stating that he robbed Stiner but did not kill him.

DISCUSSION

I. DID THE TRIAL JUDGE ERR IN DENYING MILLER’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT?

¶ 3. In his only issue Miller asserts that the trial judge erred in denying his motion for a judgment notwithstanding the verdict. Specifically, Miller argues that the evidence was insufficient to support the guilty verdict. When testing the legal sufficiency of the State’s evidence, the applicable standard of review is as follows: “the court must review the evidence in the light most favorable to the [S]tate, accept as true all the evidence supporting the guilty verdict, and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court will reverse only when reasonable and fair-minded jurors could find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Furthermore, it has long been a rule in Mississippi that it is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)).

¶ 4. Mississippi Code Annotated Section 97-3-19 (Rev.2000), states that capital murder is “(2) [t]he killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases ... (e) [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery.” Miller argues that the evidence is insufficient to support a conviction of capital murder because it does not show that Stiner was lolled “during the commission” of the armed robbery. Mississippi recognizes the “one continuous transaction rationale” in capital cases. West v. State, 553 So.2d 8, 13 (Miss.1989). There this Court stated:

In Pickle v. State, 345 So.2d 623 (Miss.1977), we construed our capital murder statute and held that ‘the underlying crime begins where an indictable attempt is reached.... ’ 345 So.2d at 626; see also Layne v. State, 542 So.2d 237, 243 (Miss.1989); Fisher v. State, 481 So.2d 203, 212 (Miss.1985); and Culberson v. State, 379 So.2d 499, 503-04 (Miss.1979)_An indictment charging a killing occurring ‘while engaged in the commission of one of the enumerated felonies includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony.

West v. State, 553 So.2d at 13. The supreme court also found that it was irrelevant when the victims died, whether it was before or after the money was taken, because it was clear that they died during the commission of the armed robbery. Turner v. State, 732 So.2d 937(¶ 48) (Miss.1999).

¶ 5. Miller admitted on three separate occasions that he stole $430 from Stiner’s pocket immediately after Stiner was killed. Miller also admitted on one occasion that he killed Stiner. Considering all the discrepancies in Miller’s various confessions and reviewing the evidence in the light most favorable to the State, we find the jury could easily infer that Miller knew about the $430 in Stiner’s front pocket, shot Stiner in the back of the head, and proceeded to take the money from Stiner’s pocket. We do not find that reasonable and fair-minded jurors could only find Miller not guilty; thus, we find no merit to this issue.

¶ 6. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J„ NOT PARTICIPATING.