Davis v. State

• Decision Date: 06 February 2001
• Docket Number: No. 1999-KA-00966-COA.,1999-KA-00966-COA.
• Citation: 811 So.2d 346
• Parties: Michael DAVIS, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

811 So.2d 346

Michael DAVIS, Appellant, v.STATE of Mississippi, Appellee.

No. 1999-KA-00966-COA.

Court of Appeals of Mississippi.

February 6, 2001.

Gail P. Thompson, Oxford, Attorneys for Appellant.

Office of the Attorney General ByJeffrey A. Klingfuss, Attorneys for Appellee.

Before SOUTHWICK, P.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1.Michael Davis was found guilty of auto theft and sentenced as an habitual offender to six years in the Mississippi Department of Corrections without the possibility of parole, probation, suspension or reduction.On appeal, Davis asserts the following errors:

I.DID THE LOWER COURT ERR IN INFORMING DAVIS OF HIS RIGHT TO REPRESENT HIMSELF, AND DID DAVIS' TRIAL COUNSEL PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL?

II.DID THE TRIAL COURT ASK AN IMPROPER QUESTION OF DEBRA DAVIS, A WITNESS FOR THE DEFENSE?

III.WAS THE VERDICT OF THE LOWER COURT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

FACTS

¶ 2.Michael Davis conspired to steal and strip a car of it's tires.Davis acted as a look-out while his accomplice, Melvin Hubbard, stole the car.A witness, Susan McCracken, saw the car being stolen and a look-out car that followed.Both Hubbard and McCracken testified that Davis was the individual involved in the crime.Davis was convicted and sentenced as a habitual offender to six years in the Mississippi Department of Corrections without the possibility of parole, probation, suspension or reduction.

ANALYSIS

I.DID THE LOWER COURT ERR IN INFORMING DAVIS OF HIS RIGHT TO REPRESENT HIMSELF, AND DID DAVIS' TRIAL COUNSEL PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 3.Before the venire panel had been voir dired by the trial court, Davis, his appointed attorney, Thomas Pearson, Dan Hinchcliff and the trial judge met in chambers.Davis explained that he did not feel that Pearson had spent enough time with him in order to effectively represent him; and, therefore, wished to represent himself.The court advised Davis that Pearson was capable counsel and warned Davis of the dangers of self-representation.The court pointed out that Davis had successfully delayed the trial five times by continuance and that on the sixth setting a mistrial had to be declared due to improprieties on the part of Davis' wife.The court reminded Davis that he was granted a continuance six months earlier due to the fact that Davis was not satisfied with Pearson as counsel.The court told Davis at that time that he was entitled to hire someone other than Pearson as counsel, advising against Davis representing himself.However, Davis failed to hire another attorney and continued to be represented by Mr. Pearson at the time of the trial.

¶ 4.Mr. Pearson conducted the voir dire for the defense and stated that the defense had no questions for the first witness.After the State questioned their second witness, the court asked Davis if he wished to represent himself or allow Pearson to continue.Davis stated that he wanted "to ask her questions" himself.The court instructed Pearson to remain and provide assistance to Davis as he represented himself.Davis went on to question the witnesses and make a closing statement.The record reflects that Pearson questioned one witness, that witness being Davis, and made objections throughout the trial.Both Davis and Pearson were allowed to make closing statements.

¶ 5.Davis now complains that the court failed in its duty to adequately inform him of his right to represent himself as well as the dangers thereof.Davis claims that he was incompetent to represent himself and, for that reason, allowed inadmissable hearsay evidence to be admitted.

¶ 6."The Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense."Scott v. Illinois,440 U.S. 367, 374, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383(1979)."Absent a valid waiver of this right, `[i]f an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional.'"United States v. Haymer,995 F.2d 550, 552(5th. Cir.1993);United States v. Eckford,910 F.2d 216, 218(5th Cir.1990);United States v. Follin,979 F.2d 369, 376(5th Cir.1992).A waiver of the right to assistance of counsel may occur at any time, before or during the trial, but it must be made with a full understanding of its disadvantages and consequences.Faretta v. California,422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975);Boyd v. Dutton,405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755(1972);Johnson v. Zerbst,304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461(1938).In Westbrook v. Arizona,384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429(1966), the United States Supreme Court stated:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused whose life or liberty is at stake is without counsel.This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

Id.

¶ 7.Nevertheless, an accused has a constitutional right to represent himself and to present his own case pro se without an attorney.In Gray v. State,351 So.2d 1342(Miss.1977), appeal after remand, 375 So.2d 994(Miss.1979), this Court set out the following:

Mississippi Constitution Article 3, section 26(1890) provides in part:

"In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, ..."

The refusal to permit defendant to argue his case is in direct violation of the above constitutional provisions and requires reversal.

Id. at 1345.See alsoBallard v. State,366 So.2d 668(Miss.1979)."The motion of an indigent prisoner requesting the court to dismiss his court-appointed attorney is addressed to the sound discretion of the trial judge."Burnett v. State,285 So.2d 783, 783(Miss.1973).A defendant is not entitled to a continuance in order to raise funds with which to employ an attorney.Burnett,285 So.2d at 784.

¶ 8.The record reflects that the trial judge adequately informed Davis of his constitutional right to represent himself as well as the dangers and responsibilities of self-representation.Davis made an intelligent and competent waiver of assigned counsel.Furthermore, Davis had been granted a continuance in order to find new counsel six months prior to the trial.Davis has no foundation to now claim that he did not understand and was not thoroughly explained his rights involving representation and self-representation when the lower court reviewed such information with him twice.

¶ 9.While it is unclear from the brief, Davis implies that he was provided with ineffective assistance of counsel.It is not made clear by the brief what aspect of assistance of counsel was ineffective.Rather, Davis claims that he was incompetent to represent himself and, for that reason, allowed inadmissable hearsay evidence to be admitted.While the defendant has a right to self-representation, "[H]e may not use this right to play a `cat and mouse' game with the court, ... or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of Counsel."Evans v. State,273 So.2d 495(Miss.1973).The record reflects the trial judge forewarned Davis of the dangers and responsibilities of self-representation.Davis chose to ignore those warnings and proceed on his own behalf.It is far too late to argue that he lacked the legal knowledge to represent himself.

¶ 10.It has been established by the Mississippi Supreme Court that as stand-by counsel, a defense attorney is "without authority, discretion or control and the charge that he rendered constitutionally ineffective assistance is without merit."Estelle v. State,558 So.2d 843(Miss.1990).Estelle held that where a defendant declines appointed counsel and proceeds to represent himself with appointed counsel only standing by to provide assistance if called upon that the defendant will not be heard to complain on appeal of ineffective assistance of counsel.Estelle,558 So.2d at 847.The casesub judice is one such case.

¶ 11.Even if Pearson was classified as co-counsel, the assertion of ineffective assistance of counsel would still fail.The assertion of ineffective assistance of counsel is addressed under the two-part test established in Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), and followed by the Mississippi Supreme Court in Stringer v. State,454 So.2d 468, 476(Miss.1984).A successful completion of this test is paramount to Davis' argument.He must successfully meet both prongs.Under Strickland and Stringer, Davis must show that the counsel's performance was so deficient that it constituted prejudice.Strickland,466 U.S. at 687,104 S.Ct. 2052.The asserting party must also show that "but for his attorney's errors, there is a reasonable probability that he would have received a different result in the trial court."Rankin v. State,636 So.2d 652, 656(Miss.1994).The defendant bears the burden of demonstrating that both prongs have been met.Leatherwood v. State,473 So.2d 964, 968(Miss.1985).There is a strong but rebuttable presumption that an attorney's performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.Vielee v. State,653 So.2d 920, 922(Miss.1995).Application of the Strickland test is applied with deference to counsel's performance, considering the totality of the circumstances to determine whether counsel's actions were both deficient and prejudicial.Conner v. State,684 So.2d 608, 610(Miss.1996).The test is to be applied to...