Goff v. State

• Citation: 302 So.3d 676
• Decision Date: 18 August 2020
• Docket Number: NO. 2018-KA-01370-COA,2018-KA-01370-COA
• Parties: Donald Kevin GOFF, Appellant v. STATE of Mississippi, Appellee
• Court: Court of Appeals of Mississippi

302 So.3d 676

Donald Kevin GOFF, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-01370-COA

Court of Appeals of Mississippi.

Filed August 18, 2020

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS DONALD KEVIN GOFF (PRO SE)

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE, LAURA HOGAN TEDDER, Jackson

BEFORE BARNES, C.J., WESTBROOKS AND McCARTY, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. On June 15, 2017, a Forrest County grand jury indicted Donald Kevin Goff for one count of aggravated domestic violence in violation of Mississippi Annotated Code section 97-3-7(4)(a) (Rev. 2014) and one count of tampering with a witness in violation of Mississippi Annotated Code section 97-9-115 (Rev. 2014). Following a jury trial held on June 19, 2018, Goff was found guilty on both counts. On June 29, 2018, the court sentenced Goff, as a habitual offender, to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). The court's final order confirming the verdict and sentence was entered on July 2, 2018. On July 27, 2018, Goff filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which the trial court denied. Aggrieved, Goff now appeals his conviction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On October 19, 2016, Joanna Pickering and Donald K. Goff were involved in an altercation that occurred while Pickering operated the vehicle transporting the soon to be divorced couple. During the incident, the car crossed four traffic lanes, went into a ditch, and finally stopped in a dollar store parking lot. Pickering testified that the argument started when Goff attempted to light a cigarette she believed to contain the drug spice. A former drug addict, Pickering was enrolled in a sobriety program while Goff purportedly continued using the drug. Pickering testified their argument began over Goff's drug use and escalated when Goff bit her. Pickering further testified that Goff went on to pull her ponytail before beginning to choke her and bang her head on the steering wheel, all while she was driving. Pickering stated that she believed she was about to die.

¶3. A nearby observer, Chester Clay, noticed the struggle and called 911 after Pickering's vehicle stopped in front of his car. Clay reportedly noticed the car driving erratically and saw "a guy like choking his wife or something." Clay testified that he witnessed Pickering driving with Goff's hand around her throat. Clay also claims he saw Goff screaming at Pickering while throwing her head around and slamming her back and forth; he described the situation as "pretty violent." After the car stopped, Clay approached the passenger side of Pickering's vehicle and began hitting Goff, who would not release Pickering. With the assistance of another unidentified onlooker, Clay beat Goff until he was rendered unconscious.

¶4. Deputy Sherman Heathcock of Forrest County Sheriff's Department responded to the scene and testified that Goff was badly injured, describing him as bloody, "very incoherent" and still sitting in the passenger side of the vehicle. In addition to Goff's injuries, Heathcock also noted those of Pickering, who had escaped from the vehicle and was found sitting on the curb. Pickering had sustained several injuries from the incident, including a bite mark on her arms, marks around her neck, knots on her forehead, and a black eye, all consistent with her account. When questioned by Heathcock, Pickering identified Goff as her husband and the party responsible for her injuries. Heathcock photographed Pickering's injuries, noting "several marks about the head and neck."

¶5. On October 20, 2016, Investigator Alyssa Chandlee of the Forrest County Sheriff's Office interviewed Pickering and photographed her injuries. Chandlee secured a warrant to arrest Goff for aggravated assault and monitored phone calls he made to Pickering from jail between October 31, 2016, and November 2, 2016. Pickering testified that Goff called her from jail on multiple occasions attempting to dissuade her from testifying as a State's witness and urged her not to share "their business" with police. Based on the calls, Chandlee added the charge of tampering with a witness. The recordings of Goff's calls were later used as evidence at trial.

¶6. On June 15, 2017, Goff was arrested and indicted on two counts by a Forrest County grand jury: aggravated assault and tampering with a witness. On the motion of the State, the indictment was amended to charge Goff as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2015). An order granting the State's motion was entered on June 19, 2018; Goff's jury trial began the same day.

¶7. At Goff's trial, both Officer Heathcock and Investigator Chandlee testified as State witnesses. During the conclusion of the proceedings, Heathcock and Chandlee assumed the position of bailiff due to a personnel shortage. The officers did not interact or communicate with the jury members. The court also noted that the officers were not present in the jury room during deliberations.

¶8. On June 20, 2018, the jury returned a guilty verdict on both counts as charged in the indictment. Goff was sentenced, as a habitual offender, to life imprisonment in the custody of the MDOC. On July 27, 2018, Goff filed a post-trial motion for JNOV or, in the alternative, a new trial; the court denied the motion in an order entered on August 22, 2018. On appeal, Goff's appointed counsel argues that he was denied his fundamental right to a trial by an impartial jury. Pro se, Goff raises additional issues in a supplemental brief filed on January 30, 2020. Rephrased for clarity, Goff alleges that (1) his indictment was defective, (2) the trial court judge exhibited bias and misconduct, (3) the prosecution engaged in misconduct, and (4) his defense counsel had a conflict of interest and provided ineffective assistance. Goff argues that these errors resulted in a violation of his due process rights.

DISCUSSION

¶9. Goff argues that his fundamental right to a fair trial by an impartial jury was violated when the State's witnesses, Deputy Sherman Heathcock and Investigator Alyssa Chandlee, acted as bailiffs during closing arguments and jury deliberations.

¶10. The State contends that Deputy Heathcock and Investigator Chandlee only served as bailiffs briefly and did not have any interaction with the jury. The State further cites the failure of trial counsel to raise an objection or request a mistrial at Goff's trial. Goff's post-trial motion for a JNOV or, in the alternative, a new trial, did not raise the issue either.

I. Procedural Bar

¶11. The following colloquy between Goff's trial attorneys, Mr. Ignatiev and Ms. Slawson, and the court reveals that Goff's attorneys noted the guard change with the court but later opined that no prejudice resulted. No objection was raised to properly preserve this issue for appeal.

Ignatiev: Your Honor, I'd just like to note that at some time – I'm not sure when because it was during closing, I would assume – at some point we had a switch in bailiffs. The bailiff who was present departed for whatever reason and Sherman Heathcock, who was a witness in this case, temporarily replaced him, I guess. I mean, he was standing in the back of the courtroom and along with Alyssa Chandlee. They were both witnesses in this case and I don't think that was – I don't – there's no evidence it was prejudicial or anything, but I do want to note for the record–

The Court: All right.

Ignatiev: – they should not have been there.

The Court: All right. Well, here's what I observed. I didn't know Alyssa Chandlee was back there. I didn't know Sherman Heathcock was back there. When I sent the – I heard a noise I thought was coming from the jury room. And obviously I'm not going to send a jury back there with people who aren't on the jury there. So I went in the jury room. There was nobody in the jury room. And when I came back out I noted that the muted conversations were back behind the wall. And there stood Sherman Heathcock, who was a witness, and there stood Alyssa Chandlee, who was a witness. Behind the wall the only opening between that wall and the courtroom is a door. And the door is open. And that's how I saw them when I came back. So I had a brief discussion with him. Told me that the bailiff who was here was shorthanded. He was an older gentleman. He took his place. I asked the jury to go in the jury room. Then Sherman closed the door. As I'm looking there, I don't see any juror that's looking at him. I can't – of course, I'm not a – I'm just telling you, as the judge, I didn't see anybody look at that or notice that. And once it was brought – frankly, I didn't think about it. Frankly, when it was brought to my attention, I – of course the door was shut then. I get him in the back. Well he's standing here then. But there's no other deputy here. And I made the statement on the record that I would take the jury instructions back to the door and I would hand the exhibits over. That's what happened. There's been no contact, no conversations, no nothing between either Sherman Heathcock or Alyssa Chandlee.

So, I mean, you've made the record, but I'm saying on the record based on my complete observations, which I've tried to dictate into the record, I saw no interaction with – between Deputy Heathcock and the jury except as they were going in with their backs turned to the courtroom, he shut [the] door. And that's it. So I believe that completes the record.

Ignatiev: Thank you, Your Honor.

The Court: All right.

Slawson: Your Honor, from my perspective from the counsel table, when the jurors were finally in to the jury room, Deputy Heathcock was standing in the usual position the bailiff would be standing in.

The Court: All right. Well, I didn't see that, so we'll supplement the record with her observations.

Ignatiev: Thank you, Your Honor.

¶12....