Jackson v. State

• Decision Date: 01 February 1989
• Docket Number: No. 58251,58251
• Citation: 538 So.2d 1186
• Parties: Walter O'Neal JACKSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1186

538 So.2d 1186

Walter O'Neal JACKSON v. STATE of Mississippi.

No. 58251.

Supreme Court of Mississippi.

Feb. 1, 1989.

Thomas D. Berry, Jr., Gulfport, for appellant.

Mike Moore, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal of a conviction of sale of an illegal controlled substance presents a somewhat novel juxtaposition of two familiar issues in criminal procedural jurisprudence: the charges that the accused was unfairly denied a continuance of his trial, resulting in ineffective assistance of counsel. The factual predicate for the two claims is identical. Because the accused wholly failed to assist counsel in assisting him in preparation for trial and because the accused has wholly failed to demonstrate any legally cognizable prejudice in spite of being given full opportunity to show such, we affirm.

II.

Walter O'Neal Jackson, late of Harrison County, Mississippi, was on August 15, 1985, some thirty-one years of age. On that date, Jackson was the star of four photographs taken in front of Tim's Motel, Highway 49 in Gulfport, Mississippi. Rather than a screen test, however, the shots were apparently taken to record an undercover drug sting, with Jackson providing two sets of T's and Blues, and Officers J. Kuhn, Greg Richardson and "Jerry Curl" Langford buying the sets and snapping the photos.

Jackson was formally charged with sale of pentazocine, a Schedule II controlled substance, Miss.Code Ann. Secs. 41-29-115(A)(d)(6) and -139(a)(1) (Supp.1988), in an indictment returned by the Harrison County Grand Jury on May 7, 1986. The indictment further charged that Jackson was an habitual offender by reason of two previous felony convictions. On May 30, 1986, Jackson appeared in Circuit Court for arraignment. Upon finding Jackson indigent, the Court appointed counsel to represent him on the pending charge. Jackson entered a plea of not guilty and signed an acknowledgment that he understood that his trial was scheduled for June 16, 1986. On June 11, 1986, Jackson, acting through counsel, moved for a continuance. The motion was denied on the morning of June 16, 1986. That same date the case proceeded to trial, at the conclusion of which the jury returned a verdict that Jackson was guilty as charged.

At the recidivism hearing thereafter, the evidence reflected that on October 21, 1983, Jackson had been convicted in the Circuit Court of Jackson County, Mississippi, of the crime of felonious shoplifting, and that on May 17, 1983, he had been convicted in the Circuit Court of the Second Judicial District of Harrison County, Mississippi, of grand larceny. Jackson was sentenced as an habitual offender to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. See Miss.Code Ann. Secs. 41-29-139(b)(1) and 99-19-91 (1972 and Supp.1988). In addition, the Court fined Jackson One Million Dollars ($1,000,000.00) and immediately thereafter suspended the fine.

Jackson timely moved for a new trial, complaining of denial of his request for a continuance and ineffective assistance of counsel at his trial. He was afforded a full evidentiary hearing on September 29, 1986, at which he appeared with new counsel. In the end, the motion was denied. Jackson now appeals to this Court.

III.

On this appeal Jackson argues that the Circuit Court abused its discretion when it denied his motion for a continuance and that he was denied effective assistance of counsel at his trial. The factual basis for the two points is essentially the same.

A.

On Friday, May 30, 1986, Jackson appeared in Circuit Court for arraignment. At that time the Court appointed Raiford L. Pittman, Esq., of Gulfport, Mississippi, to defend him. Pittman conferred briefly with his newly acquired client, whereupon Jackson entered a plea of not guilty to the charge. So far, so good. Immediately thereafter, Pittman advised Jackson to come by his office on Monday or Tuesday of the following week to confer further about preparation for trial. At the time Jackson was at liberty on a property bond. There is no question but that at that time both Jackson and Pittman knew that the case was set for trial on June 16, 1986.

Jackson did not appear at Pittman's office during the following week. In fact, Pittman and Jackson did not see each other or talk again until a few minutes before the trial commenced on Monday morning, June 16. It appears that shortly after leaving the courthouse following his arraignment--the exact time and date are not in the record--Jackson was arrested on an unrelated charge by an officer of the Ocean Springs Police Department and was incarcerated in the Ocean Springs City Jail continually up to the morning of June 16. Both defense counsel Pittman and the assistant district attorney in charge of the prosecution stated to the Court that they had no knowledge of Jackson's whereabouts until the morning of trial. On that morning, the assistant district attorney learned of Jackson's detention in Ocean Springs and procured his release so that he could attend his trial in Gulfport, Mississippi. ¹

When Jackson did not contact him in the week following the arraignment, Pittman began efforts to locate Jackson but those efforts were unsuccessful. When by June 11 he had not been able to find Jackson, Pittman filed the motion for continuance. Wanda Smith, Jackson's sister, who had appeared as surety on a property bond filed to secure Jackson's release pending trial, said that she learned that Jackson was in jail in Ocean Springs on about June 5 or 6. She said she received a letter from Pittman's office inquiring about Jackson's whereabouts and that she called in response and advised Pittman's secretary that Jackson was in jail. Pittman says this information never got to him and, specifically, that he received no messages from his secretary or anyone in his office that Jackson was in jail.

Pittman testified that he had no opportunity to prepare for trial. He acknowledges, however, that he had obtained and inspected the photographs the prosecution planned to use in evidence. He had been advised that the prosecution would call law enforcement witnesses, and he contacted these potential witnesses, but they refused to talk with him. Pittman prepared and pre-filed proposed jury instructions.

We are presented the innuendo that Jackson was not allowed by Ocean Springs officials communications with the outside world. Jackson himself testified at the hearing for a new trial on two separate occasions. He never stated anything remotely suggesting that he had sought to call his attorney or anyone else and had been denied that privilege. Jackson did not take the stand in his own defense at trial, but at the motion for new trial completely denied his guilt. He acknowledged, however, that he had no witnesses who could have supported his defense. In sum, in spite of being given full opportunity to do so, Jackson failed at the motion for a new trial--which was held over three months after his trial--to offer any evidence or theory of defense which might have aided his cause and which might have been available to him had counsel been given a greater opportunity to prepare for trial.

B.

The standards our courts employ when one criminally accused requests a continuance may be found in Miss.Code Ann Sec. 99-15-29 (1972). ² The granting or denial of a continuance rests within the sound discretion of the trial judge. Arteigapiloto v. State, 496 So.2d 681 (Miss.1986); Gates v. State, 484 So.2d 1002 (Miss.1986); Oates v. State, 421 So.2d 1025 (Miss.1982); Smith v. State, 463 So.2d 1102, 1003 (Miss.1985).

Our dispositive inquiry is whether denial of Jackson's motion for a continuance resulted in substantial prejudice to his right to a fair opportunity to prepare and present his defense. Indeed, the last line of Section 99-15-29 reads

[D]enial of continuance shall not be grounds for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.

No one disputes Pittman and Jackson conferred for no more than ten minutes total. What is contested is the thought of resulting prejudice.

Four witnesses, three of whom were eyewitnesses, testified at trial. Photographs were introduced purporting to show the drug exchange. These do indeed show Jackson coming out of a motel room and approaching a van. No transaction is portrayed, nor any drugs or money.

We have repeatedly affirmed denials of continuances where it appeared the appellant was not prejudiced substantially by the denial. In an armed robbery trial where counsel was appointed four days before trial, a denial was affirmed because "the facts in this case did not present a complicated factual situation and no complicated legal problems were involved. Appellant admitted taking part in the crime and the jury found against her on her defense of duress. The record revealed that appellant received a fair and impartial trial during which she was ably and vigorously defended." Brown v. State, 252 So.2d 885, 888 (Miss.1971). See also Blair v. State, 445 So.2d 1373 (Miss.1984); and Greene v. State, 406 So.2d 805, 807 (Miss.1981).

No doubt at times ad hoc determinations of prejudice may be quite problematical. See the observation in Box v. State, 437 So.2d 19, 24 (Miss.1983) (Robertson, J., concurring):

This Court is not in a position to decide that a tardy disclosure of the witness or evidence has or has not resulted in unfair surprise or prejudice to the defendant. This Court has only the cold record to review. That the record does not affirmatively reflect prejudice does not logically demonstrate that there has been none. Where there is prejudice, it more than likely will pertain to matters that will not be reflected in the record. The line of questioning defense counsel failed to pursue...