Henley v. State, 97-KA-00782-SCT.

• Decision Date: 10 December 1998
• Docket Number: No. 97-KA-00782-SCT.,97-KA-00782-SCT.
• Citation: 729 So.2d 232
• Parties: Harold Lee HENLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

729 So.2d 232

Harold Lee HENLEY v. STATE of Mississippi.

No. 97-KA-00782-SCT.

Supreme Court of Mississippi.

December 10, 1998.

Donna Sue Smith, Columbus, Attorney for Appellant.

Office of the Attorney General by Wayne Snuggs, Attorney for Appellee.

EN BANC.

WALLER, Justice, for the Court:

INTRODUCTION

¶ 1. Harold Lee Henley was indicted by the Lowndes County Grand Jury for grand larceny, aggravated assault, and attempted rape. Henley was tried before a jury and convicted of all counts. He was sentenced to 5 years for grand larceny, 8 years for attempted rape, and 18 years for the aggravated assault with all sentences to run consecutively. The Lowndes County Circuit Court, Honorable John M. Montgomery, denied Henley's motion for a J.N.O.V. or, alternatively, a new trial. Henley appeals to this Court and assigns the following as error:

I. THE CIRCUIT COURT ERRED IN ALLOWING HAROLD HENLEY TO ACT PRO SE WHEN HE ADVISED THE COURT THAT HE NEVER "REQUESTED TO PROCEED WITHOUT A LAWYER."

II. THE CIRCUIT COURT ERRED IN OVERRULING THE DEFEDANT'S MOTION FOR J.N.O.V. OR, ALTERNATIVELY, FOR A NEW TRIAL ON THE GRAND LARCENY COUNT OF THE INDICTMENT.

III. THE CIRCUIT COURT ERRED IN DISALLOWING THE DEFEDANT'S CHALLENGE TO VENIRE PANELIST NUMBER 19.

IV. ATTORNEY ROBERT PRATHER PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL TO THE DEFENDANT AND THIS INEFFECTIVE REPRESENTATION SERIOUSLY PREJUDICED HAROLD HENLEY'S DEFENSE.

STATEMENT OF THE FACTS

¶ 2. On the evening of May 17, 1996, Martha Fields ("Fields") was walking on Eleventh Street in Columbus, Mississippi. Harold Henley ("Henley"), who was driving around looking for some crack to smoke, stopped Fields. Fields and Henley knew each other, as they had met at Alcoholics Anonymous sometime before. It is undisputed that Henley and Fields went back to Henley's house. Their stories diverge as to the purpose of the visit and the events which transpired once they arrived.

¶ 3. Fields testified that Henley asked her to go to his house and she thought it was alright because they were good friends. Once they arrived, Henley started asking her for sex, but she refused. After she refused his sexual advances, Fields testified that Henley placed something against the door so that she could not get out. Fields and Henley, who, according to Fields, had a Jack Daniels bottle in his hand, started fighting inside the house. Henley punched Fields in the eye and knocked her unconscious. When she came to, Henley was wiping her face with a rag. Fields tried to escape by breaking the window but was unsuccessful. She testified that Henley then tore her jumpsuit and panties off. On cross examination, Fields said that she took her jumpsuit off because Henley was holding a beer bottle to her head.

¶ 4. Fields testified that Henley, who had taken his own clothes off, was on top of her trying to force her to perform oral sex on him. Henley was armed with knife, and according to Fields, made numerous cuts on her hands, arms, neck, and shoulders. As Henley was sitting on top Fields, holding her down, she reached and grabbed Henley by his testicles. After Fields gained control over Henley, she guided him over to the door and she ran out naked. After the police arrived on the scene, Fields was carried to the emergency room by ambulance where she received treatment and was released.

¶ 5. Henley's version of the events is drastically different from Fields' testimony. Henley testified that he was driving around looking for crack cocaine when he saw Fields walking along the street. He said that he knew her from AA and Narcotics Anonymous meetings. After picking Fields up, they rode around and purchased some crack cocaine from a guy named Shay. According to Henley, Fields agreed to give him sex in exchange for some of the crack cocaine.

¶ 6. The two then went to Henley's house to complete their alleged deal. Once there, Henley testified that Fields performed fellatio on him, but she refused to have sex with him unless he gave her some crack. Henley claims that after taking a hit of crack, Fields took her clothes off, but refused to consummate their deal. After that, a struggle ensued between the two.

¶ 7. Henley admitted that he hit Fields and tried to wipe her injury with a rag. However, he said that Fields removed her clothes herself. He said that he became inflamed with passion from the drugs and was angry when she reneged on her prior agreement to have sex. He admitted to threatening Fields with the knife but denies that he cut her. Henley said that Fields just walked out without her clothes on, and that the struggle lasted 30 minutes as opposed to three hours.

¶ 8. Donald Richardson, a Columbus Police Officer, responded to the 911 call concerning an attempted rape. Upon arrival, he saw Fields running naked to a house. After someone gave her a blanket, Richardson attempted to calm her down and obtain a statement from her. Richardson observed that multiple injuries had been inflicted upon Fields' person. She had a cut underneath her left arm, a deep cut above her eye, and a deep cut under her breast.

¶ 9. Richardson and several other officers went to Henley's home. Upon arrival they noticed that the back door was open and the house was dark.¹ Believing the suspect to still be inside, the officers proceeded to search the house. Henley was not there. The officers noticed, in addition to the house being in a total state of disarray, that there was blood on the carpet, mattress, and walls inside the house.

¶ 10. After Fields had left the house but before the police arrived there, Henley had panicked and also left. Despite having his own truck, Henley stole a truck that had the keys in it from down the street. He drove to Bartlett, Tennessee, where he was pulled over by a police officer. The officer ran a check on the truck's tag number and found out it was stolen. Henley was arrested and detained in Tennessee.

¶ 11. A search warrant was executed on Henley's home the next day. The officers were looking for Fields' clothing and the hook-billed knife that was used in the attack. The officers did not find any female clothing² but did find the knife along with blood on the carpet, walls, and mattress. Pieces of the carpet, a piece of the mattress, the knife, a shirt, and some swabs retrieved from Henley's house all tested positive for the presence of human blood. However, no test was performed on these items to determine whether the blood belonged to Fields.

I. THE CIRCUIT COURT ERRED IN ALLOWING HAROLD HENLEY TO ACT PRO SE WHEN HE ADVISED THE COURT THAT HE NEVER "REQUESTED TO PROCEED WITHOUT A LAWYER."

¶ 12. After completion of the first day of a two day trial, Henley expressed to the judge his unhappiness with his lawyer, Robert Prather ("Prather"), now deceased.³ Outside the presence of the jury, and with Prather, the prosecutor, and the judge present, Henley expressed his complaints to the court. He claimed that his lawyer had been hostile to him by not talking to him on the telephone and that Prather had spent less than ten minutes with him preparing for his case. Prather was asked by the court if he had anything to put in the record. After Henley had made his complaints to the trial judge, the following exchange occurred:

THE COURT: All right, Mr. Prather, do you care to place anything in the record?

Mr. Prather: Your Honor, the only thing I would do is move now to be allowed to withdraw since he has accused me of being ineffectual assistance of counsel,...

Later, Prather did tell the judge that he had hung up on Henley because he was in the shower and it was his policy not to accept public defender calls at his home. Despite Henley's contentions of conflict between himself and Prather, his primary complaint was that Prather did not cross-examine the victim extensively enough. He claimed that Fields was lying and he did not want to go to prison without having the chance to address the statements of Fields.

¶ 13. A criminal defendant has the right to be heard by himself or counsel or both. Miss. Const. art. 3, § 26. A refusal by the trial court to permit the defendant to argue his case is a violation of his constitutional rights and requires reversal. Gray v. State, 351 So.2d 1342, 1345 (Miss.1977).

¶ 14. Recently, this court has turned to a "hybrid representation" in an effort to strike a balance between the right to counsel and the right to self-representation. Metcalf v. State, 629 So.2d 558, 562 (Miss.1993). Hybrid representation encompasses both the participation of the criminal defendant in the course of the trial when he has not effectively waived his right to assistance of counsel, and the participation by an attorney when the defendant is proceeding pro se. Id. There is no absolute right to hybrid representation, and whether to allow hybrid representation lies in the discretion of the trial court. Id. at 563.

¶ 15. In the case sub judice, the trial judge explained to Henley that he was entitled to an effective lawyer, but not to the lawyer of his choice. The judge told Henley that he could proceed pro se and that he could participate in his trial by asking the witnesses questions and still have Mr. Prather present as advisor. Henley responded, "Absolutely, your Honor, absolutely."

¶ 16. Before court began the next morning, the trial judge again questioned Henley on whether he wanted to proceed pro se. Henley stated that he did not wish to represent himself, but he felt like he (Prather) was not acting in his best interest. Henley stated that if forced to represent himself, he would do the best he could. The trial judge replied that Henley was not being forced to represent himself and then inquired as to educational background. Henley answered that he had received approximately one year of college and attended trade schools and a theology seminary, but had no experience in the criminal justice system.

¶ 17. The trial judge found that he was not competent to represent himself. The...