Holmes v. State, 1998-KA-01122-COA.

• Decision Date: 16 November 1999
• Docket Number: No. 1998-KA-01122-COA.,1998-KA-01122-COA.
• Citation: 754 So.2d 529
• Parties: Richard HOLMES, Jr. and Michael Earl Perkins, Appellants, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

754 So.2d 529

Richard HOLMES, Jr. and Michael Earl Perkins, Appellants, v. STATE of Mississippi, Appellee.

No. 1998-KA-01122-COA.

Court of Appeals of Mississippi.

November 16, 1999.

Rehearing Denied February 1, 2000.

Certiorari Denied March 23, 2000.

Rabun Jones, Greenville, Attorney for Appellants.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE KING, P.J., IRVING, AND LEE, JJ.

KING, P.J., for the Court:

¶ 1. In a joint indictment, Appellants Richard Holmes, Jr., and Michael Earl Perkins were each charged with one count of aggravated assault on Marvin Sims and one count of shooting a firearm into a dwelling house. A Humphreys County Circuit Court jury found both defendants guilty as charged. The judge sentenced each defendant to ten years for the aggravated assault and five years for shooting into a dwelling, said sentences to be served concurrently in the custody of the Mississippi Department of Corrections.

¶ 2. On appeal, Holmes and Perkins present the following assertions of error

I. DEFENDANTS WERE DENIED THEIR CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 5TH, 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AS WELL AS ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION OF 1890, WHEN THE COURT PERMITTED, AND TRIAL COUNSEL UNDERTOOK, DUAL REPRESENTATION OF BOTH DEFENDANTS.

II. DEFENDANTS WERE FURTHER DENIED THEIR CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AS WELL AS ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION OF 1890, DUE TO TRIAL COUNSEL'S FAILURE: TO PROPERLY PREPARE FOR THEIR DEFENSE; TO OBJECT TO THE ADMISSION OF INADMISSIBLE EVIDENCE AND IMPROPER STATEMENTS BY THE PROSECUTOR; TO ATTEMPT TO SUPPRESS THE STATEMENT OF MR. PERKINS; AND TO PRESERVE AND PRESENT DEFENDANTS' CLAIM OF SELF-DEFENSE.

III. DEFENDANTS WERE DENIED THEIR RIGHTS UNDER ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION OF 1890, TO BE APPRISED OF THE CHARGES AGAINST THEM AND, THUS, REVERSIBLE ERROR OCCURRED WHEN DEFENDANTS WERE TRIED AND CONVICTED OF AGGRAVATED ASSAULT UNDER AN INDICTMENT WHICH COMPLETELY OMITTED ANY ALLEGATION OF VENUE FOR THAT OFFENSE.

IV. REVERSIBLE ERROR OCCURRED WHEN THE TRIAL COURT FAILED TO TENDER ADEQUATE SELF-DEFENSE INSTRUCTIONS TO THE JURY.

V. REVERSIBLE ERROR OCCURRED WHEN THE TRIAL COURT PERMITTED OFFICER THURMOND TO TESTIFY, OVER TIMELY OBJECTION, THAT THE SLUG WHICH WAS REMOVED FROM MR. SIMS WAS A .38 CALIBER AND PERMITTED, ON SEVERAL OCCASIONS, PROOF OF DAMAGE TO THE BLUE CHEVROLET.

We affirm the verdict and the judgment of the trial court.

FACTS

¶ 3. On Monday, July 14, 1997, at about 10:00 P.M., Myron Stanley and Marvin Sims parked Sims's blue Chevrolet automobile in Fisk Alley, next to Sims's mother's home. A white Suburban stopped in the alley behind them. Several gunshots were fired from this vehicle. Sims and Stanley recognized Richard Holmes and Michael Perkins, who exited from the passenger side of the Suburban.¹ This shooting incident arose from a confrontation between Sims and Holmes two days earlier. According to Sims, he had not seen Holmes or Perkins on that day until the Suburban pulled up behind his car. However, Holmes and Perkins testified that Sims and Stanley had fired shots at them as they exited the Lin Yin Grocery earlier in the evening. Holmes and Perkins denied following Sims and Stanley to the alley. They claimed to have been going to Perkins's mother's home which was adjacent to Sims's mother's home.²

¶ 4. Testimony conflicted regarding who fired the first shot. Myron Stanley, who claimed to have been unarmed, stated that he saw something shiny in Holmes's hand, began running, and could not tell who fired first. Sims testified that Holmes and Perkins exited the Suburban and fired immediately. Sims then drew his .22 caliber automatic and returned fire as he ran away. Perkins and Holmes both claimed that Sims shot first, wounding Perkins in the left arm. They then returned fire.

¶ 5. Perkins had a .22 caliber rifle, while Holmes carried a .38 caliber handgun. As Sims ran through Fisk Alley, he continued to shoot behind him. Perkins followed Sims into the alley. Sims, shot in the hip, fell, heard someone following him, rose to his feet and continued past his mother's house toward the home of his sister, Bobbie Banks. Sims testified that as he entered his sister's house Holmes shot at him.

¶ 6. The police photographed numerous bullet holes in Banks's back door, storm door, windows, walls, air conditioner, and the headboard of her bed. In addition to the damage to Banks's house, photographic evidence showed that the windshield of Sims's blue Chevrolet had been knocked out. Officers recovered Sims's gun from the alley where it was dropped when he fell. Holmes and Perkins testified that they threw their guns into a river before seeking medical attention for Perkins's wound at the Indianola Hospital.

¶ 7. Officer Lampkin of the Belzoni Police Department recorded in writing Holmes's statement of the incident. Officer Mickey Foxworth took two statements from Perkins, on July 15, 1997, one at 2:10 A.M. and one at 4:00 P.M. All three of the statements by Holmes and Perkins were admitted into evidence. In his signed statement Holmes alleged that Sims shot at him at Lin Yin prior to the altercation at Fisk Alley. Perkins's signed statement corroborated this detail of Holmes's account. However, neither Officer Lampkin nor Foxworth recalled any assertion of self-defense by Perkins or Holmes.

¶ 8. The trial court appointed W.C. Trotter, III, to represent Holmes and W.D. Mounger to represent Perkins. Holmes and Perkins later retained Jim Arnold to jointly represent them. The defense requested a continuance of the November trial date, and the case was tried in March of 1998.

DISCUSSION

I & II

Were Holmes and Perkins denied their rights to due process and to effective assistance of counsel under the U.S. Constitution and the Mississippi Constitution of 1890, (1) when the court permitted, and trial counsel undertook, dual representation of both defendants, or (2)due to trial counsel's alleged failure to (a) properly prepare for the defense; (b) object to the admission of certain evidence and certain statements by the prosecutor; (c) attempt to suppress Perkins's statement to police; and (d) preserve and present defendants' claim of self-defense?

A. Legal Standard

¶ 9. In asserting ineffective assistance of counsel, appellants must overcome the two-part test of Stringer v. State, 454 So.2d 468 (Miss.1984), adopted from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That test requires "(1) that counsel's performance was deficient, and (2) that the defendant was prejudiced by his counsel's mistakes"; thus, an appellant must overcome "a strong presumption that counsel's performance falls within the range of reasonable professional assistance" and show "`a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different.'" Schmitt v. State, 560 So.2d 148, 154 (Miss.1990) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052); accord Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 10. Joint representation of co-defendants does not result in a per se violation of the right to counsel. Vielee v. State, 653 So.2d 920, 922 (Miss.1995); Sykes v. State, 624 So.2d 500 (Miss.1993). The reviewing court presumes that "trial counsel's conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic." Vielee, 653 So.2d at 922; see Edwards v. State, 615 So.2d 590, 596 (Miss.1993); Leatherwood v. State, 473 So.2d 964, 969 (Miss. 1985). As the Vielee court observed, the U.S. Supreme Court addressed possible conflicts saying:

"Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial ..." Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1989[1980]). When defense counsel has breached his duty of loyalty by actively representing conflicting interests and the conflict of interest adversely affects his performance then prejudice is presumed. Cuyler, 446 U.S. at 348-50, 100 S.Ct. at 1718-19. See also Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).

Vielee, 653 So.2d at 921-22. A criminal defendant who asserts ineffective assistance of counsel must make "some showing of a possible conflict of interest or prejudice" in order to justify reversal of a conviction. Id., at 922 (citing Cuyler, 446 U.S. at 340, 100 S.Ct. 1708).

B. Analysis

¶ 11. No objection was raised asserting ineffective assistance of counsel by either appellant at the trial level. We first address the assertion that the trial court should not have allowed the dual representation. In Cuyler, the court stated, "Absent special circumstances, ... trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist." Id. at 346-47, 100 S.Ct. 1708. In the present case, the court initially appointed separate counsel for the two defendants, but Perkins and Holmes chose to jointly retain the attorney who represented them at trial.³ We find no special circumstances in the record which would have required the trial court to initiate an inquiry regarding the joint representation.

¶ 12. The U.S. Supreme Court has instructed that no distinction should be drawn between retained and appointed counsel in examining questions of ineffective assistance. Cuyler, 446 U.S. at 344-5,100 S.Ct. 1708. Therefore, we review this issue to determine whether the alleged conflict adversely affected the attorney's performance in representing...