Stringer v. State, 90-KA-1306

Decision Date07 October 1993
Docket NumberNo. 90-KA-1306,90-KA-1306
PartiesCharles L. STRINGER v. STATE of Mississippi.
CourtMississippi Supreme Court

Christopher N.K. Ganner, Jackson, for appellant.

Charles Stringer, pro se.

Michael C. Moore, Atty. Gen., Jackson, Ellen Y. Dale, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the court:

Police initially went to the Stringer house to arrest Stringer pursuant to an outstanding capias. With probable cause to believe he was inside the house, the officers entered and observed contraband in plain view. After obtaining a search warrant, more narcotics were found, giving the officers probable cause to arrest Stringer on a new charge when he arrived at the house. At trial the State connected Stringer to the marijuana by showing he resided at the house, which was During trial, out of the presence of the jury, the trial judge ruled that certain witnesses Stringer had hoped to present would not be allowed to testify because of the gross negligence involved on the part of Stringer's counsel, who admitted he had been negligent in not supplying names of some witnesses to the State, but that Stringer had just recently insisted upon calling some of the witnesses. Stringer himself, also while the jury was out, told the judge he had supplied names of all witnesses to his attorney a year ago and that he had proof of his residence. Stringer asked for a mistrial because he had been misrepresented on the facts. He said his mother, aunt, and roommate could testify that he did not live at his mother's house. Stringer's attorney stated that he felt there were extreme liabilities involved in calling some of the witnesses. At this point the trial judge said he was not in a position to have a hearing on ineffective assistance of counsel mid-trial. Stringer was warned that if he chose to testify, his testimony could be used against him at this trial as well as later. The trial judge also ruled that Stringer's prior conviction of possession with intent would be admissible as probative on the issue of Stringer's intent. Stringer nonetheless took the stand.

owned by his mother. Stringer's defense was that he did not reside there.

Stringer was subsequently convicted on possession of marijuana, more than one ounce and less than one kilogram, with intent to distribute. He was sentenced as an habitual offender to thirty years without parole and a million dollar fine was imposed. Following Stringer's motions for new trial, the trial judge performed a proportionality review and re-sentenced Stringer to thirty years, the first sixteen without parole. Stringer asserts the following issues on appeal:

1. Whether the court erred in failing to grant a mistrial when it was shown that Stringer was denied effective assistance of counsel at trial in violation of his rights under the Constitutions of Mississippi and the United States;

2. Whether the delay of one year and ten months from Stringer's arrest on the instant charge until trial constituted a denial of his right to a speedy trial as guaranteed him by the Sixth Amendment to the Constitution of the United States, made applicable to the states by the Fourteenth Amendment to the United States Constitution;

3. Whether Stringer was arrested in a manner which violated his Fourth Amendment rights under the United States Constitution and Section 23 of the Mississippi Constitution of 1890;

4. Whether the court erred in failing to grant Stringer's motion for J.N.O.V. or in the alternative for a new trial based on newly discovered evidence; and

5. Whether the sixteen (16) year habitual sentence imposed was grossly disproportionate to the severity of the crime and whether it violates Stringer's right to be free of cruel and unusual punishment as secured by the Constitutions of the United States and the State of Mississippi.

Because we reverse on Stringer's first assignment of error, we decline to address the others.

THE LAW

WHETHER THE COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN

IT WAS SHOWN THAT STRINGER WAS DENIED EFFECTIVE ASSISTANCE

OF COUNSEL AT TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE

CONSTITUTIONS OF MISSISSIPPI AND THE UNITED STATES.

Although this assignment of error as framed asks for review of the trial court's denial of mistrial, the arguments in Stringer's brief and reply brief merely mention the mistrial request (made by Stringer rather than his counsel) then ask this Court to determine whether he was denied effective assistance of counsel.

To successfully claim ineffective assistance of counsel the Defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and adopted by this Court. Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992); Knight v. State, 577 So.2d 392, 394 (Miss.1991); Barnes v. State, 577 So.2d 840, 841 (Miss.1991); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Waldrop v. State, 506 So.2d 273, 275 (Miss.1987), aff'd after remand, 544 So.2d 834 (Miss.1989); Stringer v. State, 454 So.2d 468, 476 (Miss.1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985). The Strickland test requires a showing of (1) deficiency of counsel's performance (2) sufficient to constitute prejudice to the defense. McQuarter, 574 So.2d at 687. The burden to demonstrate both prongs is on the defendant. Id; Leatherwood v. State, 473 So.2d 964, 968 (Miss.1984), reversed in part, affirmed in part, 539 So.2d 1378 (Miss.1989), and he faces a strong but rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance. McQuarter, 574 So.2d at 687; Waldrop, 506 So.2d at 275; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). The defendant must show that there is a reasonable probability that but for his attorney's errors, defendant would have received a different result in the trial court. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992); Ahmad v. State, 603 So.2d 843, 848 (Miss.1992).

This Court must determine whether counsel's performance was both deficient and prejudicial based upon the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988); Waldrop, 506 So.2d at 275; Read v. State, 430 So.2d 832, 839 (Miss.1983). Our scrutiny of counsel's performance must be deferential. Ahmad, 603 So.2d at 848. If defendant raises questions of fact regarding the deficiency of counsel's conduct or prejudice to the defendant, he is entitled to an evidentiary hearing on ineffective assistance of counsel. Alexander, 605 So.2d at 1173; Leatherwood, 473 So.2d at 971. Where this Court determines defendant's counsel was ineffective, the appropriate remedy is to remand for a new trial. Nicolaou, 612 So.2d at 1086.

Stringer cites as deficient conduct by his trial counsel the failure to subpoena witnesses for his defense. According to Stringer, had his roommate, aunt, and mother been subpoenaed, they would have testified at trial that he did not live with his mother in the house where the marijuana was found. As the State connected Stringer to the marijuana by virtue of his residence in the house where the marijuana was found, and Stringer's defense was that he did not live there, Stringer argues the outcome of his trial would have been different if these three witnesses had testified. Additionally, Stringer says his attorney's failure to call these witnesses forced him to take the stand, which allowed the State to use his prior drug conviction for impeachment.

The record reflects and the State concedes in its brief that Stringer's counsel's performance was deficient because of his gross negligence in complying with discovery guidelines, thereby meeting the first prong of Strickland. But has Stringer made an affirmative showing of prejudice to his defense?

The trial court found Stringer's attorney's admissions of negligence regarding his discovery violation (failure to provide the State with a list of witnesses) amounted to "gross negligence" and, as a result, excluded some of Stringer's witnesses. It does not appear that Stringer's mother, aunt, or roommate were mentioned until a later point in the trial when Stringer asked for a mistrial because he had been "misrepresented" on the facts. At this time Stringer claimed his attorney had not subpoenaed his mother, aunt, and roommate. Counsel responded that he felt there were extreme liabilities involved in calling some of these witnesses. The judge stated on the record that he was not in a position to have a full-fledged hearing on ineffective assistance of counsel mid-trial; no findings regarding ineffective assistance were made by the trial court.

The judge then ruled that Stringer's prior conviction for possession of marijuana with intent to distribute would be inadmissible for impeachment purposes, because more prejudicial than probative, but admissible on the issue of Stringer's intent. Even in the face of this ruling, Stringer had no choice but to take the stand. As a result of the exclusion of his witnesses, testimony from Stringer himself was the only means of presenting to the jury evidence that Stringer did not live at the house where the marijuana was found.

Two important rules of law are at play here: a party is bound by the acts of his attorney [Pace v. Financial Security Life of Miss., 608 So.2d 1135, 1138 (Miss.1992); Sears, Roebuck & Co. v. Devers, 405 So.2d 898, 900 (Miss.1981); Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965) ], and an accused is entitled to a reasonable defense in court with the effective assistance of counsel. Littlejohn v. State, 593 So.2d 20, 22 (Miss.1992); U.S. Const. Amend. VI. The force of the first rule highlights the necessity of trial courts to insure the enforcement of the second. The trial court should have allowed Stringer's witnesses to be called else he should have...

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