Jackson v. State, 2000-KA-01195-SCT.

• Decision Date: 09 May 2002
• Docket Number: No. 2000-KA-01195-SCT.,2000-KA-01195-SCT.
• Parties: Kevin JACKSON a/k/a Kevin K. Jackson, Sr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

815 So.2d 1196

Kevin JACKSON a/k/a Kevin K. Jackson, Sr. v. STATE of Mississippi.

No. 2000-KA-01195-SCT.

Supreme Court of Mississippi.

May 9, 2002.

Thomas M. Fortner, Robert M. Ryan, Jackson, attorneys for appellant.

Office of the Attorney General, by Charles W. Maris, Jr., attorneys for appellee.

Before SMITH, P.J., COBB and DIAZ, JJ.

COBB, J., for the Court.

¶ 1. On February 10, 1998, Kevin Jackson was indicted in the Hinds County Circuit Court on charges of murder, aggravated assault and the firing of a handgun into an occupied dwelling. Jackson was convicted by a jury on all counts and sentenced to life imprisonment for the murder, a consecutive 25 year imprisonment for the aggravated assault, and a 5 year imprisonment for firing into the occupied dwelling to run concurrently with the aggravated assault sentence. Following the denial of his post-trial motion for a new trial, Jackson appeals, raising three assignments of error (edited):

I. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING JACKSON SUA

SPONTE A JURY INSTRUCTION DEFINING THE DEFENSE OF ACCIDENT.

II. WHETHER JACKSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

III. WHETHER JACKSON'S CONVICTIONS WERE SUPPORTED BY THE EVIDENCE ADDUCED AT TRIAL OR AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 2. Concluding that all of Jackson's assignments of error are without merit, we affirm.

FACTS

¶ 3. The facts underlying this case are not disputed, as Kevin Jackson freely admits to firing shots into the door of an occupied house, wounding one inhabitant and killing a small child, Jackson's own son. Jackson had previously lived with a woman named Quanda Anderson, with whom he had a son named Kevin, Jr. Eventually, the relationship ended, and Quanda and Kevin, Jr. moved back in with Quanda's mother, Betty Anderson. About two weeks later, on the morning of October 12, 1997, Jackson called Quanda and asked to see Kevin, Jr., but Quanda denied his request because her family had made plans to got to church that day. Upset (and by his own admission high on PCP, LSD and "elephant tranquilizer"), Jackson went to Quanda's house, where he tried to kick in the door and then fired several shots through the door, striking Betty Anderson and killing Junior. At the time of his death, Junior was only 17 months old.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING JACKSON SUA SPONTE A JURY INSTRUCTION DEFINING THE DEFENSE OF ACCIDENT.

¶ 4. Jackson first suggests that the trial court erred in not granting sua sponte a jury instruction defining the defense of accident. Or to put it another way, Jackson claims he was entitled to such an instruction even though he never requested it, and the absence of such an instruction constitutes plain error. The plain error doctrine permits this Court to review errors committed during trial, even if they are not properly preserved on appeal, where those errors impact fundamental rights. Williams v. State, 794 So.2d 181, 188 (Miss.2001)("This Court has found plain error in failing to instruct the jury properly and failing to properly evaluate evidentiary matters").

¶ 5. Miss.Code Ann. § 97-3-17 (2000) provides for three scenarios in which a homicide shall be excusable:

(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;

(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;

(c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

Jackson does not dispute that his firing into the dwelling was an unlawful act, which eliminates the first scenario. Nor does he dispute the use of a dangerous weapon, which eliminates the third scenario of the statute. Instead, Jackson relies exclusively on the second scenario, arguing that he "acted in the heat of passion as a consequence of his being distraught over the denial of his visitation request." ¶ 6. Obviously, this argument ignores the requirement that there be a "sudden and sufficient provocation" before a defense of accident is permitted under § 97-3-17(b). The sole "provocation" suggested by Jackson was Quanda Anderson's decision to deny his visitation request earlier on the morning of the shooting. We do not consider that "provocation" to be either sudden or sufficient within the meaning of the statute.

¶ 7. As we have stated: "Jury instructions are to be granted only where evidence has been presented which support the instruction." Jones v. State, 797 So.2d 922, 927 (Miss.2001). Because Jackson failed to present evidence that would support an accident instruction, he was not entitled to same. Thus, it was not plain error for the trial court not to grant such an instruction, sua sponte. This issue is without merit.

II. WHETHER JACKSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 8. Our standard of review for a claim of ineffective assistance of counsel is a two-part test: the defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). This review is highly deferential to the attorney, with a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. Id. at 965. With respect to the overall performance of the attorney, "counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy" and cannot give rise to an ineffective assistance of counsel claim. Cole v. State, 666 So.2d 767, 777 (Miss.1995).

¶ 9. Anyone claiming ineffective assistance of counsel has the burden of proving, not only that counsel's performance was deficient but also that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, the defendant must show that there is a reasonable probability that, but for his attorney's errors, he would have received a different result in the trial court. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss. 1992). Finally, the court must then determine whether counsel's performance was both deficient and prejudicial based upon the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988).

¶ 10. Jackson claims that the following instances demonstrate that he suffered ineffective assistance of counsel during his trial. First, Jackson claims the fact that he was under the influence of powerful narcotics was not sufficiently brought to the attention of the jury. Although Jackson concedes that his trial counsel did address the issue, he argues that it "should have been better presented." Unlike Jackson, we find it easy to believe that Jackson's attorney might have declined to emphasize Jackson's drug abuse for tactical reasons and conclude that this issue falls squarely under the ambit of trial strategy. Furthermore, as the State properly notes, we have expressly rejected the idea that voluntary intoxication is a defense to murder in Greenlee v. State, 725 So.2d 816, 822-23 (Miss.1998), stating:

Greenlee submits that while voluntary intoxication is not a defense to the crime of murder, the fact that the defendant was intoxicated negates the existence of the specific intent to commit the offense. Thus, Greenlee concludes that because he had taken three hits of LSD before the offense, he did not have the specific intent to commit murder. For this reason, Greenlee argues that the drug induced state he was in reduced murder to manslaughter and, therefore, he should have at least been granted the instruction so that this question could go to the jury. However, this argument is tantamount to a request for the jury to consider Greenlee's intoxication as a defense to the specific intent crime of murder. In McDaniel v. State, 356 So.2d 1151 (Miss.1978), this Court overruled this argument which had previously been successful. The Court stated:

If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.

Greenlee, 725 So.2d at 822-23 (Miss.1998)(internal citations omitted)(quoting McDaniel v. State, 356 So.2d 1151, 1161 (Miss.1978)). Jackson cites no authority for the proposition that his attorney should be considered ineffective for failing to bring to the jury's attention facts which should have had no bearing on the jury's verdict.

¶ 11. Next, Jackson again argues that the facts of this case support a claim of accident or misfortune, and he claims that his counsel's failure to suggest an accident instruction represents ineffective assistance. The analysis of Issue I is dispositive here. Jackson has failed utterly to establish a viable accident defense, and his attorney's failure to offer a groundless instruction cannot be viewed as ineffective assistance.

¶ 12. Finally, Jackson suggests that his attorney's failure to seek out and interview defense witnesses in preparation for the actual trial represents ineffective assistance. However, Jackson does not identify any witnesses who could have been called or how any witnesses testimony could have helped his case. Instead, Jackson relies on a number of cases holding that an attorney is ineffective when he fails to perform any pre-trial investigation or interview any witnesses at all. See generally Payton v. State, 708 So.2d 559 (Miss.1998); Woodward v. State, 635 So.2d 805, 813 (Miss.1993)(Smith, J. dissenting); Yarbrough v. State, 529 So.2d 659 (Miss. 1988); Neal v. State, 525 So.2d 1279 (Miss. 1987).

¶ 13. Assuming...