Gordon v. State

• Decision Date: 18 March 2008
• Docket Number: No. 2005-KA-00687-COA.,2005-KA-00687-COA.
• Citation: 977 So.2d 420
• Parties: Calvin GORDON a/k/a Cal, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

977 So.2d 420

Calvin GORDON a/k/a Cal, Appellant v. STATE of Mississippi, Appellee.

No. 2005-KA-00687-COA.

Court of Appeals of Mississippi.

March 18, 2008.

Calvin Gordon, appellant, pro se.

Whitman D. Mounger, Greenwood, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for Appellee.

Before KING, C.J., CHANDLER and ROBERTS, JJ.

ROBERTS, J., for the Court.

¶ 1. In November 2003, Tammy Smith asked her friend, Denise Watkins, to go and get Smith's daughter, Trudy Wilson, from Smith's house located next door.¹ Watkins complied, but when she could not locate Wilson, she began looking around the house. Watkins walked into a bedroom and saw Calvin Gordon having sex with Wilson. This was subsequently reported to the authorities, and Gordon was arrested. After additional investigation, Gordon was indicted on four counts of "[Capital] Rape" in violation of Mississippi Code Annotated section 97-3-65(1)(b) (Rev.2000). Following his trial in the Circuit Court of Humphreys County, Gordon was found guilty of all four counts and sentenced to what amounted to a forty-year term of imprisonment. Gordon now appeals, raising the following issues:

I. WHETHER GORDON'S TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE;

II. WHETHER THE TRIAL COURT ERRED IN DENYING GORDON'S MOTIONS FOR NEW TRIAL AND DIRECTED VERDICT;

III. WHETHER THE TRIAL COURT ERRED IN DENYING GORDON'S MOTION TO DISMISS THE INDICTMENT.²

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On November 17, 2003, while Smith was visiting her next door neighbor, Watkins, she asked Watkins to have Wilson, Smith's six-year-old daughter, come next door. Wilson was at Smith's house. After unsuccessfully attempting to obtain Wilson's attention by calling her name, Watkins went inside the house to locate her. When Watkins stepped into the back bedroom of Smith's home, she saw Gordon on top of Wilson, with her legs in the air, having sex. Watkins proceeded next door to inform Smith of the situation. As any mother would, Smith raced next door with a belt she obtained from Watkins to cease the despicable act. Once she arrived she did, indeed, cease the rape of her child by "whupping" her daughter and asking Wilson what she was doing "F-ing with her man." For reasons unknown to this Court, Smith did not report this to the police. Following this incident, Belinda Smith, Wilson's grandmother, after being informed by Wilson that Gordon had molested her and that "it was burning," took Wilson to the police station. Gordon was arrested the following month.

¶ 4. It was later discovered that Gordon allegedly had sex with Wilson on other occasions. Gordon was indicted on four counts of "[Capital] Rape," in violation of Mississippi Code Annotated section 97-3-65(1)(b) (Rev.2000), occurring between January 2002 and November 2003. Gordon, through his attorney, filed a demurrer and motion to dismiss arguing the indictment did not contain a crime cognizable under the law of the State of Mississippi, referring to the phrase "[Capital] Rape." After said motion was denied, a trial on the merits of the State's case was held in the Circuit Court of Humphreys County on March 3, 2005. After hearing all testimony, and giving the evidence presented its due and proper consideration, the jury returned a verdict of guilty as to all four counts. Following the jury's verdict, the trial court sentenced Gordon to twenty years per count, with the sentences for Counts I and II to run concurrently, and the sentences for Counts III and IV to run concurrently. The sentences in Count I and II were ordered to run consecutive to the sentence in Counts III and IV, for a total of forty years to serve. Gordon's attorney subsequently filed a motion for a new trial or, in the alternative, judgment of acquittal notwithstanding the verdict (JNOV), which was denied. This appeal soon followed. Additional facts will be discussed as needed.

ANALYSIS

I. WHETHER GORDON'S TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE.

¶ 5. Gordon's first argument is that his trial counsel rendered ineffective assistance of counsel in his representation during trial. Gordon cites several instances of conduct, both action and inaction, which will be listed below in which he claims his trial counsel's efforts amounted to constitutionally ineffective assistance.

¶ 6. The familiar standard espoused in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by the supreme court in Stringer v. State, 454 So.2d 468, 476 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985) guides our analysis of Gordon's claims. Specifically, the test we must employ is as follows:

The Strickland test requires a showing that counsel's performance was sufficiently deficient to constitute prejudice to the defense. The defendant has the burden of proof on both prongs. A strong but rebuttable presumption, that counsel's performance falls within the wide range of reasonable professional assistance, exists. The defendant must 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.

Viewed from the totality of the circumstances, this Court must determine whether counsel's performance was both deficient and prejudicial. Scrutiny of counsel's performance by this Court must be deferential. . . . Where this Court determines defendant's counsel was constitutionally ineffective, the appropriate remedy is to reverse and remand for a new trial.

Rankin v. State, 636 So.2d 652, 656-57 (Miss.1994) (internal citations omitted).

¶ 7. With the above standard in mind, we review Gordon's record of alleged deficiencies, which are listed as follows: that his trial counsel was physically handicapped; that his trial counsel failed to preserve the record during voir dire; that his trial counsel failed to timely ask for a continuance; that his trial counsel failed to adequately question potential witnesses; that his trial counsel told the jury at the start of his opening statement, "I'm always reluctant to give an opening statement"; that his trial counsel failed to request the trial court voir dire Wilson to ensure she was competent to testify; that his trial counsel failed to object to leading questions asked of Wilson; that his trial counsel questioned Watkins on cross-examination concerning her unsure in-court identification of Gordon during direct examination; that his trial counsel failed to object to statements made by Watkins and Smith during trial; that his trial counsel failed to have performed an independent test on Gordon for chlamydia; that his trial counsel failed to object to the introduction of Gordon's urinalysis; that his trial counsel failed to call two witnesses; and that his trial counsel failed to prepare Gordon for trial.

¶ 8. As is obvious from the above list, the amount of alleged deficiencies on the part of Gordon's trial counsel is numerous. However, consideration of a claim of ineffective assistance of counsel on direct appeal is an unusual circumstance. Aguilar v. State, 847 So.2d 871, 878(¶ 17) (Miss.Ct. App.2002). The supreme court has dictated that when an appellate court is presented with such a claim it should abide by the following:

(1) Any defendant convicted of a crime may raise the issue of ineffective assistance of counsel on direct appeal, even though the matter has not first been presented to the trial court. The Court should review the entire record on appeal. If, for example, from a review of the record, as in Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950) or Stewart v. State, 229 So.2d 53 (Miss.1969), this Court can say that the defendant has been denied the effective assistance of counsel, the Court should also adjudge and reverse and remand for a new trial. See also State v. Douglas, 97 Idaho 878, 555 P.2d 1145, 1148 (1976).

(2) Assuming that the Court is unable to conclude from the record on appeal that defendant's trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case. Should the case be reversed on other grounds, the ineffectiveness issue, of course, would become moot. On the other hand, if the Court should otherwise affirm, it should do so without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings. If the Court otherwise affirms, it may nevertheless reach the merits of the ineffectiveness issue where (a) as in paragraph (1) above, the record affirmatively shows ineffectiveness of constitutional dimensions, or (b) 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.

(3) If, after affirmance as in paragraph (2) above, the defendant wishes to do so, he may then file an appropriate post-conviction proceeding raising the ineffective assistance of counsel issue. See Berry v. State, 345 So.2d 613 (Miss. 1977); Callahan v. State[, 426 So.2d 801 (Miss.1983)], supra. Assuming that his application states a claim, prima facie, he will then be entitled to an evidentiary hearing on the merits of that issue in the Circuit Court of the county wherein he was originally convicted. Once the issue has been formally adjudicated by the Circuit Court, of course, the defendant will have the right to appeal to this Court as in other cases.

Read v. State, 430 So.2d 832, 841-42 (Miss. 1983).

¶ 9. While Gordon's trial counsel could have arguably been a better advocate during portions of Gordon's trial, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Turner v. State, 953 So.2d 1063, 1073(¶ 36) (Miss.2007) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003)). We cannot say from a review...