Gilbert v. State

• Docket Number: 2021-KA-01265-COA
• Decision Date: 29 August 2023
• Parties: JAMES CORY GILBERT APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

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JAMES CORY GILBERT APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2021-KA-01265-COA

Court of Appeals of Mississippi

August 29, 2023

DATE OF JUDGMENT: 10/12/2021

JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. DAL WILLIAMSON, TRIAL JUDGE

ATTORNEY FOR APPELLANT:

OFFICE OF STATE PUBLIC DEFENDER

BY: W DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY LAUREN GABRIELLE CANTRELL

DISTRICT ATTORNEY:

ANTHONY J. BUCKLEY

BEFORE WILSON, P.J., LAWRENCE AND EMFINGER, JJ.

EMFINGER, J.

¶1. James Cory Gilbert was tried on a three-count indictment in the Jones County Circuit Court and was found guilty of leaving the scene of an accident that caused mutilation, disfigurement, and/or destruction of a limb or organ of Mashayla Harper (Count I); aggravated driving under the influence (DUI) (Count II); and the DUI-related death of an unborn child (Count III). The trial court sentenced Gilbert to serve twenty years in custody for the conviction of Count I and twenty years in custody for the conviction of Count II. The court sentenced Gilbert to a term of twenty years in custody, with twelve years to serve and eight years suspended upon the completion of five years of post-release supervision, for the conviction of Count III. The court ordered the sentences to run consecutively and imposed a $10,000 fine for the conviction of Count I. Gilbert appealed alleging four instances of ineffective assistance of counsel and contending that the State improperly drew attention to Gilbert's exercise of his right to remain silent during closing arguments.

FACTS AND PROCEDURAL HISTORY

¶2. On January 4, 2020, Harper, who was eight months pregnant, was traveling westbound on Welch Road in Jones County, Mississippi. Gilbert was traveling eastbound on Welch Road when his vehicle veered into the westbound lane and collided with Harper's vehicle. Harper was severely injured and was transported to a hospital where her baby was stillborn.

¶3. The first person on the scene of the accident was Brad Thompson. Thompson had been hunting in the area until it got dark. While he was unloading his rifle and preparing to go home, he heard a loud boom, which he believed to be a car wreck. Thompson lived on Welch Road, and on his way home he came upon the scene of the accident. Thompson indicated his arrival was about five minutes after he heard the loud boom. There was debris on the road, and Thompson saw a pickup truck facing the wrong way on the shoulder of the westbound lane. Thompson stopped, approached the truck, and using only his cell phone light, saw that the truck had heavy damage to the left front area. He noted that all the doors to the truck were closed, but there was no occupant in the truck. He did not attempt to enter the truck at that time. When Thompson did not see anyone lying near the truck, he called out, but no one responded.

¶4. At that point, Thompson went back to where he encountered the debris in the road and saw another vehicle about fifty- to seventy-five yards from the truck. He stressed how dark it was and the difficulty he was having seeing without the aid of any other light source. When he came within twenty-five or thirty yards of the second vehicle, he could see a silver car in what Thompson described as a "dirt drive" area. Thompson testified, "[T]here was bumpers, glass, maybe-maybe even a tire or a rim. There-it was just a bunch of stuff in the road." He could see the whole left side of Harper's car was heavily damaged. As he got within fifteen to twenty feet of the car, Thompson could see Harper lying on her back beside the car. He could tell she was pregnant. Thompson said Harper was not making any sounds, but he could see some movement. He called 911^[1] and tried to talk with Harper, but she was incoherent. Thompson was advised by the 911 operator to roll Harper onto her left side. He described the difficulty he had getting Harper on her side due to her many injuries. An ambulance and deputies arrived a few minutes later.

¶5. Jones County Deputy Sheriff Johnel Rogers arrived at the scene and began his investigation. Rogers ran the tag number of the truck and found that it was registered to Gilbert and his wife, Autumn Gilbert (Autumn). Rogers began to inventory the contents of the truck before it was towed from the scene. He located a cell phone in the truck and was able to contact Autumn, who advised him that her husband had been in possession of the truck. Rogers testified that he was on the scene for about two hours and never saw Gilbert at the scene of the accident. During his inventory of the truck, Rogers found a small bag of marijuana and some paraphernalia. Rogers stated that he turned over all the evidence he collected to Jones County Investigator J.D. Carter.

¶6. Deputy Patrick Oster, who arrived on the scene with Rogers, took photographs of both vehicles. After about thirty minutes, Oster left the scene and drove around the area looking for someone on foot but never found anyone. Rogers contacted Oster later that night and informed him that the driver of the truck was Gilbert and that Gilbert was at his father's house on Ira Gilbert Road. According to Oster, Gilbert's father's house was roughly fifteen minutes from the scene of the accident. While Oster was en route to Ira Gilbert Road, the sheriff's office central dispatch advised him that Gilbert's father had called and stated that Gilbert's wife had picked him up and they were headed to their home on Jessie Byrd Road. Oster finally made contact with Gilbert around 9:18 p.m. that night and put him in custody. Oster asked Gilbert for a blood sample, but Gilbert refused, telling Oster the only things that would show up would be THC and alcohol.

¶7. After Gilbert refused to provide a blood sample, Rogers contacted Carter. Carter testified that he had already been advised about the accident and that one of the drivers had fled the scene. Oster informed Carter that Gilbert had refused the Intoxilyzer 8000 and had also refused to consent to a blood test. As a result, Carter obtained a search warrant to draw Gilbert's blood. A deputy transported Gilbert to South Central Regional Medical Center where Gilbert's blood was drawn. Carter took two vials of Gilbert's blood to the sheriff's department where it was logged as evidence. The blood was drawn at 11:45 p.m. on the night of the accident and was taken to the Mississippi Crime Laboratory on January 10, 2020, for a blood-alcohol analysis. David Lockley, the toxicology section chief with the Mississippi Forensics Laboratory, testified that on February 5, 2020, he performed an analysis of Gilbert's blood and found it to contain an ethyl alcohol concentration of 0.104 percent.

¶8. Carter, along with the district attorney's investigator Brad Gruning, conducted a video interview with Gilbert on January 6, 2020, at the Jones County jail. Prior to the interview, Gilbert signed a waiver of his Miranda^[2] rights. During the interview, Gilbert told Carter he had been drinking and should not have been driving. He told Carter that he ran into the woods after the collision because he was afraid of getting a DUI. Gilbert began to cry when he learned that Harper's baby had died. When asked to "walk them through" the day of the accident, Gilbert told them he had gone to his father's house where he consumed three beers. After that, he went to "Blue's" and bought two twenty-four-ounce beers, which he consumed. Gilbert admitted that he had also "smoked weed" just before the accident.

¶9. Gilbert told Carter that he was not speeding down Welch Road and did not remember exactly how the accident happened; he just remembered a "boom." Gilbert stated that he only had one headlight on his truck and admitted that he probably swerved into the wrong side of the road. After the collision, Gilbert said that he lay down in the woods and "hid like a coward." Later, he ran to his father's house where his wife picked him up and took him home. According to Gilbert, he did not consume any more alcohol or marijuana after the accident.^[3] The recording of Gilbert's interview was admitted into evidence at trial.

STANDARD OF REVIEW

¶10. Concerning appellate review of claims of ineffective assistance of counsel at trial, the Mississippi Supreme Court explained in Cork v. State, 329 So.3d 1183, 1191-92 (¶¶31-33) (Miss. 2021):

"[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Dartez v. State, 177 So.3d 420 422-23 (¶18) (Miss. 2015) (citing Archer v State, 986 So.2d 951 (Miss. 2008)). The Court addresses ineffective assistance of counsel claims on direct appeal only when "[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Bell v. State, 202 So.3d 1239, 1242 (¶12) (Miss. 2016) (alterations in original) (internal quotation marks omitted) (quoting Read v. State, 430 So.2d 832, [841] (Miss. 1983)). Because the record here suffices, we address Cork's ineffective assistance claims on direct appeal.

"[T]o prevail on an ineffective-assistance-of-counsel claim, a defendant must first prove that his counsel was deficient, which requires showing that 'counsel made errors so serious that he or she was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.'" Chamberlin v. State, 55 So.3d 1046, 1050 (¶4) (Miss. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Secondly, a defendant must prove that the deficient performance prejudiced the defense, which requires showing that counsel's

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