O'HALLORAN v. State

• Decision Date: 14 January 1999
• Parties: William Joseph O'HALLORAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

731 So.2d 565

William Joseph O'HALLORAN v. STATE of Mississippi.

NO. 97-KA-00873-SCT.

Supreme Court of Mississippi.

January 14, 1999.

Thomas L. Musselman, Biloxi, Attorney for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

BEFORE PRATHER, C.J., BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

¶ 1. At issue is William Joseph O'Halloran's appeal of his conviction for the February 1994 murder of Kenneth Ray Tolbert. O'Halloran argues several items of error in the handling of his case, all of which are without merit. We affirm.

STATEMENT OF THE CASE

¶ 2. On October 13, 1994, William Joseph O'Halloran was indicted by the grand jury of Harrison County for the murder of Kenneth Ray Tolbert on or about February 24, 1994. O'Halloran pled not guilty and a July 10, 1995, trial was set on January 13, 1995. O'Halloran was originally represented solely by Joseph P. Gautier, but, on May 17, 1995, Donald Smith was added as Co-Counsel. Several continuances were sought by and granted to counsel Smith. A suppression hearing was held March 11, 1996. On March 13, the jury found O'Halloran guilty of murder. O'Halloran was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. O'Halloran's Motion for Judgment Notwithstanding the Verdict or in the Alternative a Motion for a New Trial, which was filed April 16, 1996, was taken under advisement and subsequently denied June 13, 1997. ¶ 3. Approximately April 14, 1997, O'Halloran filed a complaint against attorney Smith with the Mississippi State Bar Association. On May 9, Smith sought and received leave to withdraw as O'Halloran's counsel citing conflict of interest due to the complaint and relative Bar action. O'Halloran filed a Notice of Appeal on July 2, challenging his conviction of guilt and the denial of the Motion for New Trial. On appeal, O'Halloran claims:

I. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL;

II. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION TO SUPPRESS HIS STATEMENT;

III. INSUFFICIENT EVIDENCE EXISTS FROM WHICH REASONABLE JURORS COULD HAVE FOUND THE APPELLANT GUILTY OF THE CHARGE OF MURDER;

IV. THE TRIAL COURT ERRED IN NOT GRANTING THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A MOTION FOR A NEW TRIAL.

STATEMENT OF THE FACTS

¶ 4. On February 23 or 24, 1994, Kenneth Tolbert was searching for a place to stay when Joey Brewer agreed to keep him. Tolbert went to get, then dropped off a couch and clothes. Brewer did not see him again. On March 4, 1994, Alicia Anderson of the Biloxi Police Department Records Division took a missing person report filed by D.C. Tolbert regarding the missing status of her husband Kenneth Tolbert. D.C. Tolbert reported her last contact with Kenneth was February 24, 1994. Further, D.C. requested the media not be advised of the missing person report.

¶ 5. March 20, 1994, a couple of people notified the Sheriff's Department that they had discovered what they thought was a body wrapped in blue packaging protruding from the water near Hurricane Bridge off Highway 15. Upon analysis of dental records, the body was identified as that of Kenneth Tolbert. Expert Paul McGarry, a forensic pathologist, testified that the autopsy diagnosed four gunshot wounds from which Tolbert died, one of which was a contact wound to the head.

¶ 6. While investigating Tolbert's death, Inspector Robert Burriss of the Biloxi Police Department visited the Tolberts' Biloxi home. Mrs. Tolbert directed Burriss's attention to the stove. There had been additions to the stove effected by Mrs. Tolbert such that the panel on which the handles are located at the front of the stove was newer than the rest of the stove. A lead projectile was found in the stove top. During the investigation, Investigator LaBlanc of the Biloxi Police Department also discovered that O'Halloran had purchased a .9 MM handgun prior to Tolbert's death. In his statement, O'Halloran mentioned that the day of the shooting, he placed the gun on the kitchen counter.

¶ 7. Further, the investigation yielded that O'Halloran and Tolbert's widow transported Tolbert's body to one location. Then, the very night of the murder, Mrs. Tolbert apparently told others of the body's location, such that those others likely moved the body to the river. O'Halloran was not present when Tolbert's body was deposited in the river.

¶ 8. O'Halloran was arrested at 10:00 p.m. on March 23, 1994. At 11:30 p.m. the same evening, Investigator Calvanese took a taped statement from O'Halloran. In that taped statement, O'Halloran was charged with murder and admitted shooting Kenneth Tolbert, regarding which he stated "[i]t [the shooting] happened so fast." O'Halloran also admitted he had a record of drinking and maintained a high tolerance.

ARGUMENTS AND DISCUSSION OF THE LAW

I. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 9. When faced with a claim of ineffective assistance of counsel, this Court employs the two-prong analysis of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),focusing on (1) whether counsel's performance was deficient, and if so, (2) whether the deficient performance was prejudicial to the defendant. See Strickland, 466 U.S. at 687-96,

104 S.Ct. 2052; Knight v. State, 577 So.2d 392, 394 (Miss.1991); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Alexander v. State, 503 So.2d 235, 240 (Miss.1987); Lambert v. State, 462 So.2d 308, 316 (Miss.1984); and Thames v. State, 454 So.2d 486, 487 (Miss.1984). The burden to demonstrate both prongs is on the defendant, whom faces a strong but rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance. McQuarter, 574 So.2d at 687. There is no constitutional right to errorless assistance of counsel. Foster v. State, 687 So.2d 1124, 1130 (Miss.1996). Hence, this Court employs the totality of the circumstances to ascertain whether counsel's performance was both deficient and prejudicial. Carney v. State, 525 So.2d 776, 780 (Miss. 1988); Read v. State, 430 So.2d 832, 839 (Miss.1983). In this Court, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Strickland, 466 U.S. at 689,

104 S.Ct. 2052; Rushing v. State, 711 So.2d 450, 457 (Miss.1998). Hence, solely where there is a reasonable probability that without counsel's errors the outcome of the trial would have been different will this Court find ineffective representation. Reed v. State, 536 So.2d 1336, 1339 (Miss. 1988); and Dickey v. State, 662 So.2d 1106, 1109 (Miss.1995).

¶ 10. O'Halloran first argues that trial counsel dedicated insufficient time by spending only 39.70 hours on the case from May 17, 1995 to the date of verdict and sentencing. Yet, O'Halloran fails to consider that Attorney Joseph Gautier worked on the case prior to and during Attorney Don Smith's appointment as co-counsel. Further, Gautier sought Smith's appointment as co-counsel, thus displaying endeavor to put multiple legal minds to work for the best interests of O'Halloran. Such behavior is diligent and foresightful, not deficient.

¶ 11. O'Halloran next argues that counsel was ineffective in its treatment of the cause of death sub-issue. Defense counsel did not cross-examine Dr. McGarry regarding whether the contact wound was the fatal shot. Further, counsel neither called witnesses to establish the height of Ken Tolbert or O'Halloran nor to testify to the trajectories of the different bullets and relative shooting positions. Yet, there is no error. The contact bullet in itself is fatal. Once a party chooses to shoot the victim with the muzzle against the victim's forehead, it matters not which bullet was fired first. Intent is evident. As to the heights of Tolbert and O'Halloran, those were available to the jury in exhibits S-2, O'Halloran's Personal History/Interview Log, and S-4, Tolbert's Missing Person Report. Regarding the non-attainment of trajectories, defense counsel did what they could. It is only reasonable they would fear attaining prejudicial information. If they deemed the likelihood of attaining adverse information to be greater than the attainment of positive information, then they were making the trial strategy decisions required of counsel. A reasoned and rational trial strategy decision may fail, but it is not ineffective counseling.

¶ 12. O'Halloran next argues that defense counsel was ineffective in its failure to produce ballistics evidence as to the caliber of the bullets. Given O'Halloran's statement that he shot Tolbert with a .9 MM gun, defense counsel wisely served their client because research would have likely prejudiced their client.

¶ 13. O'Halloran also argues that counsel was ineffective in failing to object to the prosecution's closing argument remark that O'Halloran admitted to "murder," whereas he actually admitted to nothing more than "shooting" Tolbert. While such negligence on the part of defense counsel is deficient, it does not rise to the level of prejudicial because of the weight of evidence against O'Halloran. His statement coupled with the forensic testimony is quite sufficient for the jury to have reasonably made the finding it did.

¶ 14. As to the use of the term "murder," O'Halloran further argues that he was prejudiced by defense counsels' failure to object under the case of Griffin v. State, 557 So.2d 542 (Miss.1990). In Griffin, the prosecution stated that "there's one man alive today who can tell you what happened, and I agree with that. There is one person who could tell you what happened and we have—we have a statement —we have a statement from him." See id. at 552. The Court held that the prosecution's argument was an impermissible reference to defendant's failure to take the stand. Id. The instant case is distinguished from Griffin because the prosecution simply refers to O'Halloran's confession rather than implying the one man who can...