Brown v. State, 98-DR-00379-SCT.

• Decision Date: 04 November 1999
• Docket Number: No. 98-DR-00379-SCT.,98-DR-00379-SCT.
• Citation: 749 So.2d 82
• Parties: Joseph Patrick BROWN a/k/a "Peanut" v. STATE of Mississippi.
• Court: Mississippi Supreme Court

749 So.2d 82

Joseph Patrick BROWN a/k/a "Peanut" v. STATE of Mississippi.

No. 98-DR-00379-SCT.

Supreme Court of Mississippi.

November 4, 1999.

James W. Craig, Jackson, Attorney for Appellant.

Office of the Attorney General by Marvin L. White, Jr., Leslie S. Lee, Attorneys for Appellee.

EN BANC.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Joseph Patrick ("Peanut") Brown was charged with shooting a convenience store clerk to death on August 8, 1992, during the commission of an armed robbery. He was indicted for capital murder on June 21, 1993. His motion for change of venue was granted and an order entered transferring venue from Adams County to Amite County. The order was later amended to restrict the transfer for the limited purpose of jury selection. A trial commenced on March 8, 1994. Brown was represented by two attorneys, Donald Ogden and Pamela Ferrington.

STATEMENT OF FACTS

¶ 2. In the early hours of August 8, 1992, Brown and his girlfriend, Rachel Walker, were driving around Natchez in search of drugs. Brown drove to the Charter Food Store and went inside. Walker stayed in the car and observed Brown approach the counter. Walker saw the store clerk, Martha Day, grab her chest and fall. Brown returned to the car with a gun and a cash register. Brown allegedly told Walker, "If you love me, you won't say anything." Day's body was later discovered with four bullet wounds. She had been shot once in the head, once through the heart, and twice in the back. The convenience store had marked a two-dollar bill and left it in the cash register. This bill was included in the currency that Brown gave to Walker for a drug purchase later that morning. Walker also pawned a .22 caliber pistol for $20 that same day which was used for yet another drug purchase. Police recovered both the two-dollar bill and the .22 pistol.

¶ 3. Walker and Brown were arrested on August 11, 1992. While in jail, Brown sent notes and letters to Walker which contained incriminating statements such as, "But we must be strong if we are going to beat this stuff ... just tell them that you don't know anything." A fellow inmate, Larry Bernard, said that Brown confided that he (Brown) had shot Martha Day and taken the cash register. The State's ballistics expert linked the bullets found in Day's body with the pistol pawned by Walker. A jury found Brown guilty as charged, and he was sentenced to death by lethal injection. Brown appealed the conviction and sentence which were affirmed by this Court in Brown v. State, 682 So.2d 340 (Miss.1996). He was represented on appeal by his trial counsel, Pamela Ferrington and Donald Ogden.

¶ 4. Brown's application for post-conviction relief was filed by James Craig on March 17, 1998. This Court later remanded the matter to the trial court for the limited purpose of determining the compensation of counsel. The application also requests investigative funding, discovery and an evidentiary hearing.

DISCUSSION

Whether the Circuit Court was Without Jurisdiction

¶ 5. The trial judge granted a change of venue to Amite County but later amended the order to transfer venue for the limited purpose of selecting jurors. The amended order provided that the trial would be held in Adams County. Brown's first claim is that the Circuit Court of Adams County lacked jurisdiction to enter the order of conviction. Brown asserts that he was entitled to change of venue but no such change was ever effected since the trial was held in Adams County.

¶ 6. Brown argues, alternatively, that either the jurors from Amite County were illegally summoned by the Circuit Court of Adams County or that the Circuit Court of Amite County illegally tried him in Adams County. Brown concludes that, either way, he was not tried by a court of competent jurisdiction such that he was denied due process under the Fourteenth Amendment to the U.S. Constitution. The State responds that Brown is trying to present an issue of venue under the guise of a jurisdictional question. A challenge to venue was capable of being raised on direct appeal and is now procedurally barred. Miss.Code Ann. § 99-39-21(1).

¶ 7. Notwithstanding the bar, the issue is without merit. Brown attempts to raise a venue claim under the guise of a jurisdictional issue. Jurisdiction continues to lie in the county where the offense was committed. Miss.Code Ann. § 99-11-3 (1994 & Supp.1999). This Court has previously upheld a transfer of venue made only for purposes of selecting a fair and impartial jury. De La Beckwith v. State, 707 So.2d 547, 598 (Miss.1997). In that case, the offense was alleged to have been committed in Hinds County but venue was transferred to Panola County for the purpose of selecting a jury only. Although the order transferring venue specified that the trial would be held in DeSoto County, the circuit court judge later determined that the trial should be held in Hinds County. The trial judge determined DeSoto County lacked adequate facilities and personnel to sequester a jury. In similar fashion, the circuit court here determined that the trial should be held in Adams County for reasons of practicality. Miss.Code Ann. § 99-15-35 (1994) allows a transfer of venue to a "convenient county" and such an act is within the considerable discretion of the trial judge. Id. This issue is without merit.

Whether Brown was Denied a Speedy Trial

¶ 8. Brown's speedy trial claim could have been raised at trial and on direct appeal. The failure to do so waives the issue, and it is now procedurally barred from further consideration pursuant to Miss.Code Ann. § 99-39-21-(1). Foster v. State, 687 So.2d 1124, 1129 (Miss.1996); Wiley v. State, 517 So.2d 1373, 1378 (Miss. 1987). Notwithstanding the procedural bar, the issue is without merit. Brown was arrested on August 11, 1992, and indicted for armed robbery on January 6, 1993. He was indicted for capital murder on June 21, 1993. Brown was arraigned on August 4, 1993, and the trial commenced on March 8, 1994. Miss.Code Ann. § 99-17-1 (1994) provides that a defendant shall be tried within 270 days following arraignment. Brown went to trial 216 days after his arraignment on the capital murder charge. There was no violation of Brown's statutory right to a speedy trial. ¶ 9. As for Brown's constitutional right to a speedy trial, the factors to be examined are: (1) the length of the delay; (2) the reason for the delay; (3) assertion of the right to a speedy trial; and, (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). None of these factors are dispositive but are to be considered together. Gray v. State, 728 So.2d 36, 48 (Miss.1998); Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991). In the present case, 574 days passed between Brown's arrest and his trial. This delay is presumptively prejudicial. A significant portion of the delay, however, may be attributed to a series of defense motions filed between August 4, 1993, and February 28, 1994. Further, Brown never asserted his right to a speedy trial although he bears some responsibility for doing so. Taylor v. State, 672 So.2d 1246, 1261 (Miss.1996). This Court has held that a defendant's failure to assert his right to a speedy trial should be given "strong evidentiary weight" in weighing the Barker factors. Atterberry v. State, 667 So.2d 622, 627 (Miss.1995); Fleming v. State, 604 So.2d 280, 301 (Miss.1992).

¶ 10. The final consideration is the prejudice, if any, suffered by Brown as a result of the delay. Brown claims that if the armed robbery indictment were dismissed for failure to receive a speedy trial, then a conviction for capital murder would not be possible. Because proof of the armed robbery was an element of the capital murder charge, this assertion is unfounded. The right to a speedy trial is intended: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532, 92 S.Ct. 2182 (footnote omitted). Brown does not claim that the pretrial incarceration was excessive or that he suffered anxiety or concern. Brown does not claim that his defense at trial suffered due to the passage of time. The record shows that defense counsel was appointed seven months before trial and that there is no assertion that any potential defense witness was unavailable due to the delay. This issue is without merit.

Ineffective Assistance of Counsel

¶ 11. There is a "rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance." Stringer v. State, 627 So.2d 326, 328-29 (Miss.1993). There is no constitutional guarantee to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). One who claims ineffective assistance of counsel must show not only the deficiency of counsel's performance but also that any such deficiency constituted prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Williams v. State, 722 So.2d 447, 448 (Miss.1998). This requires a showing that the error or omission was of such magnitude that it created "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss.1991). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Foster v. State, 687 So.2d 1124, 1130 (Miss. 1996).

Whether Counsel was Ineffective for Failing to Offer Rebuttal on Batson Objection

¶ 12. At trial, Brown's lawyers objected to the State's use of six peremptory challenges against black members of the venire panel. The State, in response, offered race-neutral reasons for the use of these strikes, and the trial court overruled the objections. Brown claims that trial counsels' performance was deficient in failing to offer rebuttal...