Grayer v. State

• Citation: 120 So.3d 964
• Decision Date: 18 July 2013
• Docket Number: No. 2012–KA–00321–SCT.,2012–KA–00321–SCT.
• Parties: Melvin GRAYER v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

120 So.3d 964

Melvin GRAYER

v.STATE of Mississippi.

No. 2012–KA–00321–SCT.

Supreme Court of Mississippi.

July 18, 2013.

Office of the State Public Defender by Mollie M. McMillin, George T. Holmes, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.

LAMAR, Justice, for the Court:

¶ 1. On the Court's own motion, the prior opinions in this case are withdrawn and these opinions are substituted therefor.

¶ 2. Melvin Grayer was convicted of burglary and sentenced as a habitual offender to seven years without the possibility of parole or probation. Grayer appeals, claiming that he received ineffective assistance of counsel because his trial counsel failed to request a circumstantial-evidence jury instruction and that he was sentenced as a habitual offender without competent evidence of his prior felony convictions. We affirm Grayer's conviction but vacate his habitual-offender sentence enhancement, because the State failed to prove Grayer was a habitual offender by competent evidence. We remand this case to the Circuit Court of Harrison County, First Judicial District, for resentencing.

FACTS AND PROCEDURAL HISTORY

¶ 3. Just after midnight on January 29, 2011, Gulfport Police Officer Jason Payne responded to a burglary call at a business located on Old Highway 49. Payne described the business as two buildings separated by a walkway, with a fence enclosing both buildings. The walkway also had a wrought-iron gate at each end. Payne approached the building and noted that the windows and doors appeared secure. As he continued inspecting the perimeter, Payne heard a “clicking noise.” When he turned to investigate the noise, Payne saw a male standing in the walkway between the buildings, inside the fence and on the other side of the gate from Payne. Although Payne ordered the man to get on the ground, the man turned and began walking away. The man then began to run, jumped over a gate to exit the business, and ran into the nearby woods. Payne maintained visual contact with the man until he ran into the woods but stopped his pursuit after the man entered the woods, because other officers were en route to the scene with a K9 officer, who would be able to track the suspect.

¶ 4. Backup arrived shortly after Payne saw the man run into the woods. A Gulfport Police K9 officer and his service dog eventually found Melvin Grayer in the woods, attempting to conceal himself. Grayer was arrested and taken into custody.

¶ 5. After Grayer was taken into custody, Payne returned to the scene to meet the business owner and investigate the business building. During the investigation, Payne observed an area of sheet metal that had been pulled back to make a point of entry to the building and some speakers on the ground in the breezeway where he had made initial contact with the suspect. The business owner testified that the speakers were not normally kept outside in the breezeway, but were generally stored inside in the shipping and receiving area of the main warehouse.

¶ 6. Grayer was indicted for burglary under Mississippi Code Section 97–17–33¹and as a habitual offender under Mississippi Code Section 99–19–81.² The indictment clearly sets forth that Grayer is a habitual offender and lists his seven previous felony convictions (arising out of five separate incidents at five different times), including the offenses, dates convicted, and cause numbers.

¶ 7. After a trial, a jury convicted Grayer of burglary. Immediately after the guilty verdict was returned, the trial judge asked the State for its position on sentencing. The State responded that Grayer had been indicted as a habitual offender under Mississippi Code Section 99–19–81 and requested that he receive the maximum sentence. The State offered to recite the nature of the previous convictions, and the State's counsel also advised the trial court that he had copies of the certified sentencing orders available for the court's inspection. The court instructed the State to recite Grayer's previous convictions, which the State's counsel did.

¶ 8. The trial judge then asked if the certified sentencing orders reflecting Grayer's previous convictions had been provided to defense counsel, and the State advised that they had. The trial judge then stated, “I see what you have contained in your hands in the indictment. So there's no need for you to present them to the court at this time.” The trial judge then immediately found Grayer to be a habitual offender and sentenced him to seven years in the custody of the Mississippi Department of Corrections, the maximum term for burglary of a building, without the possibility of parole or probation. Other than the indictment and the State's recitation of Grayer's previous convictions, the record does not contain any evidence to support Grayer's status as a habitual offender.

DISCUSSION

I. Grayer's claim of ineffective assistance of counsel is without merit.³A. Standard of Review

¶ 9. “In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney's overall performance was deficient and (2) that the deficient performance, if any, was so substantial as to prejudice the defendant and deprive him of a fair trial.” ⁴ “Furthermore, there is a ‘strong but rebuttable presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” ⁵ “To overcome this presumption, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.’ ” ⁶

B. Analysis

¶ 10. Grayer argues that his trial counsel should have requested a circumstantial-evidence jury instruction because there was no direct evidence of his guilt in this case, further claiming that the State presented direct evidence only that he was outside the business building. The State argues that Officer Payne provided direct evidence of Grayer's guilt by offering eyewitness testimony that placed Grayer inside the business's perimeter and placed speakers outside the building where Grayer had been standing; therefore, the State argues a circumstantial-evidence jury instruction would not have been proper.

¶ 11. We agree that the evidence in this case did not support a circumstantial-evidence instruction. A defendant is entitled to a circumstantial-evidence instruction; i.e., an instruction that every reasonable hypothesis other than guilt must be excluded to convict, only when the case against him is based entirely on circumstantial evidence, as opposed to direct evidence.⁷ Direct evidence includes an eyewitness to the “gravamen of the offense charged.” ⁸ Additionally, “[a] circumstantial evidence instruction is required ‘only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant.’ ” ⁹

¶ 12. In this case, Grayer was convicted of burglary under Mississippi Code Section 97–17–33. To obtain a conviction, the State was required to prove that Grayer (1) had unlawfully broken into the business, (2) with the intent to steal or commit a felony after he entered.¹⁰ The State produced an eyewitness, Payne, who testified that he saw Grayer inside the perimeter of the business and that he saw speakers on the ground outside the business building, at the spot where he first made contact with Grayer. The State also produced the business owner, who testified that the speakers were always kept inside the building in the shipping and receiving area.

¶ 13. The State produced direct evidence to the gravamen of the offense charged in the form of eyewitness testimony. Therefore, we find that Grayer was not entitled to a circumstantial-evidence instruction and that his attorney's performance was not deficient for failing to request one. This assignment of error is without merit.

II. The State failed to prove Grayer's habitual-offender status with competent evidence.A. Procedural Bar and Standard of Review

¶ 14. Grayer did not object to being sentenced as a habitual offender at trial. “When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so for the first time on appeal.” ¹¹Recognizing that his argument is procedurally barred, Grayer contends that he has a fundamental right to be free of an illegal sentence and urges this Court to review his sentence for plain error.

¶ 15. “This Court employs the plain-error rule only ‘when a defendant's substantive or fundamental rights are affected.’ ” ¹² “To determine if plain error has occurred, this Court must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether that error has prejudiced the outcome of the trial.’ ” ¹³

B. Analysis

¶ 16. Grayer argues that his sentence is illegal because the State failed to prove his habitual-offender status with competent evidence. An accused has a fundamental right to be free of an illegal sentence.¹⁴ We have explained that an illegal sentence is one that “does not ‘conform to the applicable penalty statute.’ ” ¹⁵ In other words, a sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.¹⁶

¶ 17. Grayer was found guilty of burglary, which provides that any person found guilty shall be imprisoned for “not more than seven (7) years.” ¹⁷ The circuit court found that Grayer was a habitual offender and sentenced him to seven years without the possibility of parole or probation, as mandated by the habitual-offender statute.¹⁸

¶ 18. To sentence a defendant as a habitual offender, “[a]ll that is required is that the accused be properly indicted as an habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecutor's proof.” ¹⁹ Grayer argues only that the...