Grim v. State
| Decision Date | 18 October 2012 |
| Docket Number | NO. 2008-CT-01920-SCT,2008-CT-01920-SCT |
| Parties | FREDERICK DENELL GRIM v. STATE OF MISSISSIPPI |
| Court | Mississippi Supreme Court |
ATTORNEY FOR APPELLANT: PRO SE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
EN BANC.
¶1. Frederick Denell Grim was convicted by a Tunica County jury for the sale of cocaine. The circuit judge adjudicated Grim a habitual offender pursuant to Mississippi Code Section 99-19-83 (Rev. 2007) and sentenced him to life imprisonment without the possibility of parole. On appeal, we assigned this case to the Court of Appeals, and that court addressed the six issues raised by Grim. The Court of Appeals affirmed the trial court's judgment of conviction and sentence. Grim v. State, No. 2008-KP-01920-COA, ___ So. 3d ___, 2010 WL2367279 (Miss. Ct. App. June 15, 2010). We granted Grim's petition for writ of certiorari1 to examine whether the trial court erred by allowing a laboratory supervisor, who neither observed nor participated in the testing of the substance, to testify in place of the analyst who had performed the testing. See Harness v. State, 58 So. 3d 1, 4 (Miss. 2011) (). Finding no error, we affirm.
¶2. As a preliminary matter, we must address Grim's motion to dismiss appellate counsel and to represent himself. After this case was assigned to the Court of Appeals, and before briefing had begun, Grim filed a motion to dismiss his appointed counsel, the Indigent Appeals Division of the Office of State Public Defender.2 On April 3, 2009, the Court of Appeals granted Grim's motion in a single-judge order, allowing Grim to proceed pro se. The Court of Appeals affirmed Grim's conviction, and this Court granted his pro se petition for writ of certiorari.
¶3. Finding insufficient evidence to determine whether Grim had knowingly and intelligently exercised his right to self-representation and waived his right to counsel, this Court ordered supplemental briefing on the matter from the Attorney General and the State Public Defender. Considering the matter further, this Court vacated the April 3, 2009, orderof the Court of Appeals, suspended the appeal, and remanded Grim's motion to the Tunica County Circuit Court. On remand, the circuit court conducted a hearing and entered an order finding that Grim "knowingly and voluntarily desires to act as his own attorney on appeal," and that he "has intelligently and completely waived the appointment of counsel on appeal."
¶4. A criminal defendant has a constitutional right to effective assistance of counsel at trial and on his or her first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Neal v. State, 422 So. 2d 747, 748 (Miss. 1982); U.S. Const. amends. VI, XIV; Miss. Const. art. 3, § 26. The United States Supreme Court also has recognized a constitutional right to proceed without counsel at trial so long as the defendant "voluntarily and intelligently elects to do so." Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Because of the inherent conflicts between the right to self-representation and the right to effective assistance of counsel, Uniform Circuit and County Court Rule 8.05 requires a trial court to conduct an "on the record . . . examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney." See also Faretta, 422 U.S. at 835 ( ) While there is no federal constitutional right to self-representation on appeal, the states may provide one under their own constitutions. Martinez v. Court of Appeal of California, 528 U.S. 152, 163, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000). The Mississippi Constitution reads, "[i]n allcriminal prosecutions the accused shall have a right to be heard by himself or counsel, or both. . . ." Miss. Const. art. 3, § 26. Accordingly, this Court has said that "it is elemental that an appellant, if mentally competent, has a right to discharge his attorneys and represent himself in this Court . . . ." Tarrants v. State, 231 So. 2d 493, 493 (Miss. 1970).
¶5. Because a criminal defendant has a state constitutional right to self-representation on appeal, upon learning that a defendant wishes to proceed without counsel, Mississippi appellate courts have the same duty as trial courts, that is, to ensure that the defendant is making a waiver of his or her right to counsel, "knowingly and voluntarily." URCCC 8.05. See Tarrants, 231 So. 2d at 494 (). To this end, Mississippi Rule of Appellate Procedure 6(c)(2) (amended effective August 2, 2012), sets forth the procedures for allowing an indigent criminal appellant to dismiss appointed counsel and proceed pro se on appeal. "If it is determined that appellant has intelligently and competently waived the right to counsel on appeal, then the motion to dismiss counsel shall be granted." Id.
¶6. On remand, the trial judge conducted a hearing on the record and thoroughly questioned Grim about his desire to proceed pro se. The trial judge also informed Grim of his constitutional rights and the perils of self-representation. Grim unequivocally expressed that he desired to act as his own attorney without the assistance of appointed counsel. Reviewing the transcript and the trial court's order, we agree with the trial judge's findingsand hereby grant Grim's Motion to Dismiss Counsel and lift the suspension of appellate proceedings. We now turn to the merits of Grim's petition for writ of certiorari.
¶7. On February 15, 2007, the Mississippi Bureau of Narcotics and the Tunica County Police Department used confidential informant Terry Reed to conduct a controlled buy of cocaine from Frederick Denell Grim. A video and audio recording of the transaction was introduced at trial and played for the jury. Based on these events, Grim was indicted for selling cocaine in violation of Mississippi Code Section 41-29-139(a)(1) (Rev. 2009). Grim's indictment also alleged that he was a second and subsequent offender as defined in Mississippi Code Section 41-29-147 (Rev. 2009), and that he was a habitual offender under Mississippi Code Section 99-19-83 (Rev. 2007).
¶8. The jury also heard testimony from Eric Frazure, a forensic scientist with the Mississippi Crime Laboratory. Over Grim's objection, Frazure testified about the crime lab's analysis of the substance purchased from Grim. Through Frazure, the State introduced the crime lab report that determined the substance to be cocaine. Frazure signed the report as the "technical reviewer," but another scientist, Gary Fernandez, signed the report as the
¶9. Frazure testified that he neither participated in Fernandez's analysis nor observed his testing of the substance. Frazure's involvement was that he had reviewed the report to ensure that Fernandez's data supported the conclusions contained in his laboratory report. According to Frazure
¶10. Grim's trial attorney timely objected to the admission of the report through Frazure, arguing that, without testimony from Fernandez, Grim would be denied his Sixth Amendment right to confront his accusers. U.S. Const. amend. VI. See also Miss. Const. art. 3, §26 (). The trial court overruled Grim's objection and allowed the State to introduce the crime lab report. On cross-examination, Frazure reiterated that he did not perform any testing and that he was not present when Fernandez tested the substance.
¶11. Grim contends that his right to confrontation was violated because he was not provided an opportunity to cross-examine Fernandez, the analyst who authored the forensic report admitted as evidence against him. Our standard of review governing the admission or exclusion of evidence is abuse of discretion. Williams v. State, 991 So. 2d 593, 597 (Miss. 2008) (citations omitted). However, this Court reviews constitutional issues de novo. Smith v. State, 25 So. 3d 264, 267 (Miss. 2009).
¶12. The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26 (1890). The United States Supreme Court has held that the Sixth Amendment Confrontation Clausebars the admission of "testimonial statements" made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Wash., 541 U.S. 36, 53-54, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Though no exhaustive list defining testimonial statements exists, "[a] document created solely for an 'evidentiary purpose' . . . ranks as testimonial." Bullcoming v....
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