Guice v. State

• Decision Date: 11 January 2007
• Docket Number: No. 2004-CT-01931-SCT.,2004-CT-01931-SCT.
• Citation: 952 So.2d 129
• Parties: Phelan Terrell GUICE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

952 So.2d 129

Phelan Terrell GUICE v. STATE of Mississippi.

No. 2004-CT-01931-SCT.

Supreme Court of Mississippi.

January 11, 2007.

Rehearing Denied April 5, 2007.

Joshua Aaron Turner, Merrida Coxwell, Jackson, attorneys for appellant.

Office of the Attorney General, by Jeffrey A. Klingfuss, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the his conviction for aggravated assault and sentence of twenty years' imprisonment as a habitual offender, Phelan Terrell Guice appealed to us. This case was assigned to the Court of Appeals, which affirmed the final judgment of conviction and sentence entered by the Circuit Court for the First Judicial District of Hinds County. We thereafter granted Guice's petition for writ of certiorari. Upon a meticulous review of the record and the applicable law, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. We glean the following facts from the opinion of the Court of Appeals:

On the evening of September 2, 2001, a person came to the Bolles's residence. Anita Bolles answered the door, and the man at the door asked to speak with her brother, Clarence "Brian" Bolles, Jr. After hearing the doorbell ring, Brian proceeded to go answer the door, not knowing that his sister had already answered it. When Brian reached the door, the visitor pulled out a gun and began shooting. Brian suffered a gunshot wound to the abdomen, while Anita escaped unharmed.

Anita Bolles was able to pick out her brother's assailant from a police photographic line-up. She identified [Phelan Terrell] Guice as the person who came to their house on the evening of September 2, 2001, and shot her brother.

At trial, Guice testified that he did not shoot Brian. He also testified that he was at his grandmother's house in Yazoo City on the evening of the incident. Guice further testified that there were no witnesses who could substantiate his claim that he was out of town when the incident occurred.

Guice v. State, 952 So.2d 187, 189, ¶¶ 3-5, 2006 Miss.App. LEXIS 72, *2, ¶¶ 3-5 (Miss.Ct.App.2006).

¶ 3. On April 9, 2002, Phelan Terrell Guice, hardly a stranger to our criminal courts, was indicted for the crime of aggravated assault for shooting one Clarence (Brian) Bolles, Jr. in the stomach with a 9-millimeter handgun. This indictment also charged Guice with being a habitual offender pursuant to the provisions of Miss. Code Ann. § 99-19-81 (Rev.2000), inasmuch as Guice had prior felony convictions in Yazoo County for possession of stolen property and auto theft. Guice was arraigned on the aggravated assault indictment on October 30, 2002, and he promptly thereafter received court-appointed counsel. On the long road to trial, there were various motions filed by the State, Guice, through counsel, and Guice, pro se. As these motions become relevant during the course of our addressing the relevant issue presented, these motions will be discussed in more detail, but suffice it to state here that in due course, Guice went to trial, with court-appointed counsel, on the aggravated assault indictment.

¶ 4. We present here a summary of the evidence presented in the State's case-in-chief. Anita Bolles testified that on the date of the incident, September 2, 2001, she answered the doorbell to find a person she did not know inquiring about her brother, Clarence Bolles, Jr. (who was also known as "Brian"). Not knowing that his sister had already answered the door, Brian appeared, whereupon the stranger asked "Are you Brian," and before Brian could respond, the stranger "pulled out a gun and started shooting," hitting Brian in the abdomen. Later, while at the hospital with her brother, Anita stated to police detectives that, while she did not know the name of the man who shot her brother, she would definitely be able to identify the shooter. A couple of days later, when shown a photographic lineup with six photographs of different men, Anita immediately picked out the photograph of Phelan Terrell Guice as being the person who shot her brother. She likewise identified Guice at trial as the shooter. After pointing out Guice, the prosecutor asked Anita, "Are you absolutely sure that's the man you saw shoot your brother on September 2nd, 2001?" Anita responded, "Yes, I am."

¶ 5. Jackson police officer Gregory Robinson, who was one of the officers who investigated this incident, stated that when he arrived at the Bolles' home, the victim had already left, but the victim's sister (Anita) was still on the scene. Anita described the shooter to Officer Robinson as a "[b]lack male, medium complexion, about 160 pounds." Officer Robinson also recovered shell casings at the scene, and stated that he noticed blood and a bullet hole in the screen door.

¶ 6. Bryon McIntire, a nine-year employee of the Mississippi Crime Laboratory, was tendered and accepted, without objection, as an expert "in the field of firearms and tool marks." McIntire identified two projectiles offered into evidence as having "class characteristics consistent with a .38 caliber and 9 millimeter caliber."

¶ 7. William (Will) Gardner, a 25-year JPD employee who worked in the violent crimes division, received a call to travel to the University of Mississippi Medical Center. Upon arrival at the hospital, Officer Gardner talked with Anita Bolles, and then later, made a second trip to the hospital after generating a photograph lineup, which included Guice's photograph. In putting together the photo lineup, Officer Gardner attempted to obtain six photographs of individuals with similar features, such "as facial hair, facial features, anything like that." According to Officer Gardner, when shown the photo lineup, Anita, without any hesitation, picked out Guice as the person who shot her brother.

¶ 8. Rozerrio Camel, a 12-year JPD employee who also worked in the violent crimes division, traveled to the hospital and retrieved projectile fragments which had been taken from the body of the victim.

¶ 9. Lynn Goodwin, a 7-year JPD employee, worked as a crime scene investigator. Officer Goodwin collected evidence at the scene, including shell casings, which she identified as a Winchester 9-millimeter Luger shell.

¶ 10. The victim, Clarence (Brian) Bolles, Jr., testified that he did not get a good look at the person who shot him in the abdomen, and that when the person started shooting him, he pushed his sister, Anita, out of the way and slammed the door, and after the door was closed, two more shots came through the door. Brian also informed the jury of his extensive injuries suffered as a result of the gunshot wound.

¶ 11. After the State rested and the defendant's motion for a directed verdict was denied, Guice was the only witness who testified in the defendant's case-in-chief. Guice offered up an alibi defense, claiming to have been at his grandmother's house in Yazoo City. Guice expressly denied shooting Brian Bolles. On cross-examination by the State, Guice again stated that on the day and evening of the shooting on September 2nd, which was a Sunday, he was at his grandmother's house, but his grandmother was not present. Guice testified that on Sundays, his grandmother was ordinarily at church from between 8:00 or 9:00 in the morning, until around 10:30 at night. Even though Guice stated that he had been to church with his grandmother on prior occasions, he did not know the name of the church she attended. Guice stated that his aunt and uncle also lived with his grandmother, but they were likewise not at the house while Guice was there on that day. Guice also testified that he had a cousin who knew he was in Yazoo City on that day. Interestingly, Guice did not subpoena his grandmother, aunt, uncle, or cousin to testify. Guice explained that he did not subpoena any of these relatives because they did not personally know he was in Yazoo City that day.

¶ 12. After only fifty-five minutes of deliberations, Guice was found guilty by the jury, and, in due course, the trial judge sentenced Guice to twenty years' imprisonment as a habitual offender, pursuant to Miss.Code Ann. § 99-19-81 (Rev.2000). Guice timely perfected his appeal to this Court, and this case was assigned to the Court of Appeals.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 13. Before the Court of Appeals, Guice, with appellate counsel different than his trial counsel, claimed trial court error in (1) refusing to dismiss his case for violations of his federal and state constitutional rights to a speedy trial, as well as for violation of his statutory right to a speedy trial; (2) refusing to allow Guice to submit an alternate theory of his case to the jury; and, (3) refusing to allow Guice's trial counsel to cross-examine Anita Bolles on this alternate theory that somehow Mario Jones, Anita's ex-boyfriend and the father of her child, had supposedly made threats to the Bolles family, and may have somehow been involved in the shooting of Brian. Guice, through his appellate counsel, likewise claimed on appeal that his trial counsel rendered ineffective assistance by (1) failing to assert his federal and state constitutional and statutory rights to a speedy trial; and, (2) failing to investigate the State's witnesses before trial.

¶ 14. After addressing these issues, the Court of Appeals, in a unanimous decision (two judges not participating), found these issues to be without merit and thus affirmed the trial court judgment of conviction and sentence. After the Court of Appeals denied his motion for rehearing, Guice filed his petition for writ of certiorari, asserting grounds for this Court's review of the Court of Appeals' decision similar to those asserted by way of assignments of error for consideration by the Court of Appeals.

DISCUSSION

¶ 15. We have already set out the issues addressed by the Court of Appeals, and we have likewise stated that virtually the same issues were asserted by Guice in his cert petition.¹ While we have the...