Archer v. State

• Decision Date: 24 July 2008
• Docket Number: No. 2007-KA-00072-SCT.,2007-KA-00072-SCT.
• Citation: 986 So.2d 951
• Parties: Christopher ARCHER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

986 So.2d 951

Christopher ARCHER v. STATE of Mississippi.

No. 2007-KA-00072-SCT.

Supreme Court of Mississippi.

July 24, 2008.

Kelsey Levoil Rushing, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before DIAZ, P.J., EASLEY and LAMAR, JJ.

EASLEY, Justice, for the Court.

¶ 1. Christopher Archer was indicted by the grand jury of Holmes County in December 2002 for unlawfully, wilfully, and feloniously robbing John Winston, Jr. of his personal property against his will, and placing him in fear of immediate injury to his person by exhibition of a deadly weapon in violation of Mississippi Code Annotated Section 97-3-79 (Rev.2006). Archer's first trial, in October 2003, ended in a mistrial after the jury was unable to reach an unanimous verdict. Archer was retried the following February with a newly empaneled jury, and found guilty of armed robbery. On March 1, 2004, the Honorable Jannie Lewis sentenced Archer to ten years, with two years suspended, in the custody of the Mississippi Department of Corrections. Counsel for Archer filed a notice of appearance, along with a motion for a new trial and a request for a continuance that same day.¹ Judge Lewis granted the continuance, held a hearing on May 19, 2005, and thereupon denied Archer's motion for a new trial.

¶ 2. Based on the unavailability of the trial transcript, Judge Lewis granted Archer two extensions of time to file an appeal. Notice of appeal having now been filed, Archer seeks review of his conviction.

FACTS

¶ 3. On July 21, 2002, Winston entered the Auto Zone store in Lexington, Mississippi, to purchase some motor oil. At the oil aisle, Winston ran into an acquaintance. The two exchanged greetings and soon began discussing engine heads for an '89 Mustang. During their conversation, another individual whom Winston had never seen before interjected and said he knew where some heads were located nearby, and could take Winston there. Winston and the individual, whom he later identified as Archer, left the store and got into Winston's vehicle.

¶ 4. Winston testified that as he turned his head to back out of his parking spot, Archer reached over and stuck a "pistol" into Winston's side and said, "Give me your m* * * f* * * money." "Scared," Winston reached into his pocket and handed Archer $60. Archer then said, "Snap that chain off your neck." Winston yanked a gold herringbone necklace from around his neck and handed it to Archer. Archer instructed Winston to leave the store's parking lot and to drive towards Saints Academy. When they reached the school, Archer told Winston to make a U-turn onto Balance Due Road. Once on Balance Due, the two rode throughout the area, turning onto various roads and lanes, before eventually arriving back onto the main road. Again on Balance Due, they approached a bridge where Archer instructed Winston to stop his car. Winston complied. At that point, Archer looked directly over at Winston and said, "I ought to kill your m* * * f* * * a* *." Archer then stepped out of the vehicle, told Winston to "get the f* * * out of here," and left on foot.

¶ 5. Winston immediately drove back to the Auto Zone and told the store's manager that he had just been robbed. A store employee contacted a police officer who happened to be standing across the street at the Junior Food Mart. Officer Kenny Wilson, who was helping a stranded motorist at the time, told Winston to go to the police station and wait for him there. Officer Wilson arrived shortly thereafter, and the two drove back to the Auto Zone. The officer conducted an investigation, during which time someone (the record does not say who) said that Archer was the person who had left with Winston. Officer Wilson, who testified that he knew Archer, drove Winston back out to the Balance Due area to look for Archer, but to no avail.

¶ 6. On July 27, Winston swore out an affidavit concerning the events on July 21. The next morning, Officer Wilson called Deputy Sam Chambers at the Holmes County Sheriff's Department, and asked the deputy if he had a picture of Archer that could be used in a photo lineup. The deputy found one in his computer, and printed it along with two other individuals' photographs. The lineup was conducted later that afternoon in the deputy's office. In the presence of Officer Wilson and Deputy Chambers, Winston viewed each photograph. He picked Archer's picture out of the three and stated to the officers that this was the person who had robbed him on July 21. A warrant was then issued for Archer's arrest.

¶ 7. Three weeks later, on August 18, Archer was stopped by the Goodman police on Highway 15 and detained there for an unrelated incident. Officer Wilson, having informed the Goodman police to be on the lookout for Archer, was called to the scene. Upon arrival, Officer Wilson asked Archer if he had a weapon inside his vehicle; Archer said that he did. The officer retrieved a .380 caliber handgun from Archer's car, and took Archer into custody.

DISCUSSION

¶ 8. Archer presents two claims on appeal. First, Archer charges that he was provided ineffective assistance of counsel due to the following omissions by his counsel at trial: (1) failure to seek suppression of the gun found in Archer's possession at the time of his arrest; (2) failure to use a peremptory challenge on juror number 21, who disclosed during voir dire that she personally knew the victim, and had, herself, been the victim of a robbery; and (3) failure to request a motion for dismissal at the close of the state's case and again at the end of the defense's case. Archer argues that these omissions constituted a series of errors by his trial counsel which severely prejudiced his defense and deprived him of his constitutional right to effective assistance of counsel.

¶ 9. Secondly, Archer argues that the trial court erred by denying his challenge for cause as to juror number 11, due to her disclosure that she casually knew the victim in this case.² In addition, Archer argues that, despite his counsel's failure to challenge juror number 21, the trial court nevertheless erred by not sua sponte excusing juror 21 from the venire. Thus, by having both jurors 11 and 21 empaneled on his jury, Archer claims he was denied his constitutional right to a trial by a fair and impartial jury.

I. INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 10. The appellant's ineffective-assistance-of-counsel claim will not be addressed on this direct appeal. As the record indicates, appellant's counsel on appeal also assisted the appellant's lead counsel at trial.

¶ 11. This Court was presented a similar claim in Minnick v. State, 551 So.2d 77 (Miss.1988) (overruled on other grounds), where the defendant's counsel on appeal also had represented the defendant at trial and was claiming in the defendant's appeal that he provided ineffective assistance of counsel during trial. The Minnick Court cursorily acknowledged the unusualness of an attorney claiming his own ineffectiveness, but nevertheless addressed the merits of the claim and applied the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693-95 (1984), requiring the defendant to show: (1) that his counsel's performance was deficient, and (2) that the deficiency prejudiced his defense. Id. at 98-99. Minnick held that the defendant's appellate counsel failed to demonstrate that his representation at trial was either deficient or that his performance had prejudiced his client with an unfair trial. Id. at 99.

¶ 12. Research failed to locate another case in which this Court was petitioned to review a self-ineffectiveness claim. However, the Court of Appeals has been presented with such a claim on at least two occasions. See Lyle v. State, 908 So.2d 189, 197 (Miss.Ct.App.2005); and Hill v. State, 749 So.2d 1143, 1149-50 (Miss.Ct. App.1999).

¶ 13. In Hill, the Court of Appeals readily called attention to the inappropriateness of an attorney who represents a criminal defendant at trial raising on appeal the claim of his own ineffective trial assistance, and laid out four professional-conduct violations arising from such representation. See Hill, at 1149-50. The court noted that raising this kind of error on appeal "leaves questions as to whether it is a good faith argument, or rather an action to circumvent the judicial process." Id. at 1150. However, based on Minnick, the Court of Appeals addressed the merits of the claim, applied the Strickland test and ruled Hill's ineffectiveness claim to be without merit. Id. at 1150-51.

¶ 14. Faced with another self-ineffectiveness claim in Lyle, the Court of Appeals, citing Minnick, again addressed the merits of appellate counsel's argument that he had provided his client ineffective legal assistance during trial. Lyle, 908 So.2d at 197-98. After applying the Strickland test, the court held the argument to be without merit, but not without noting, once again, the problematic nature such a claim presents. Id. at 197-98. We agree.

¶ 15. Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).

¶ 16. However, this Court may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22; see also Havard v. State, 928 So.2d 771, 786 (Miss.2006). Mississippi Rule of Appellate Procedure 22 was amended in 2005 to clarify...