Jackson v. State

• Decision Date: 30 September 2008
• Docket Number: No. 2007-KP-00394-COA.,2007-KP-00394-COA.
• Citation: 1 So.3d 921
• Parties: Herman JACKSON, Jr. a/k/a Herman Jackson III a/k/a Main, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

1 So.3d 921

Herman JACKSON, Jr. a/k/a Herman Jackson III a/k/a Main, Appellant, v. STATE of Mississippi, Appellee.

No. 2007-KP-00394-COA.

Court of Appeals of Mississippi.

September 30, 2008.

Rehearing Denied February 3, 2009.

Herman Jackson, Jr., pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., IRVING and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. Herman Jackson, Jr., was driving on Highway 61 near Clarksdale with no driver's license and with an expired inspection sticker when a Mississippi Highway Patrolman stopped him for speeding. On June 1, 2005, a Coahoma County grand jury indicted Jackson on two counts of possession of a controlled substance; the drugs were found as a result of the traffic stop. The first count of the indictment charged Jackson with possession of marijuana in an amount between 30 and 250 grams. The second count of the indictment charged Jackson with possession of cocaine salt in an amount between .1 gram and 2 grams. After a jury trial in which Jackson aggressively represented himself with the assistance and advice of court-appointed counsel, he was convicted of a lesser charge of possession of marijuana in an amount less than 30 grams and also of possession of cocaine as charged in the indictment. Jackson was sentenced to pay a fine of $250 on Count I, and he was sentenced to serve eight years in the custody of the Mississippi Department of Corrections on Count II. Feeling aggrieved, Jackson appeals pro se, seeking a new trial and asserting several perceived errors. Finding no error, we affirm.

FACTS

¶ 2. On February 12, 2005, Walter Duncan, a patrolman with the Mississippi Highway Patrol, stopped Jackson on Highway 61 for speeding. The officer also noticed that the vehicle's inspection sticker had expired. Jackson was unable to produce a valid driver's license or proof of insurance for Officer Duncan. Officer Duncan proceeded to arrest Jackson, and as he was patting Jackson down, he found a plastic bag containing a green leafy substance in Jackson's back pocket. The passenger was then removed from the car, and the vehicle was searched. Officers found a plastic bag containing a white powder substance under the ashtray in the car. Then, two more bags of the green leafy substance were found in the car — one on the driver's seat, and another under it. Jackson was taken to the Coahoma County Sheriff's Department. In the booking area at the sheriff's department, Jackson was searched more thoroughly. The search in the booking area revealed yet another plastic bag, and this bag contained a white powder substance. The bags were determined by the State Crime Laboratory to contain cocaine and marijuana.

¶ 3. Jackson's case proceeded to trial on January 19, 2007. As its first witness, the State called Officer Duncan. Jackson's court-appointed attorney, Allan Shackelford, cross-examined Officer Duncan regarding the specifics of where the drugs were found and inconsistencies in his reports, specifically inconsistent dates on the tickets he issued and the report he filed. Dissatisfied with his attorney's cross-examination, Jackson requested the court to allow him to proceed pro se. The trial judge reluctantly allowed Jackson to proceed, but he ordered Shackelford to remain at the defense table and advise Jackson during the trial. The trial judge advised Jackson that it was not in his best interest to represent himself.

¶ 4. Jackson was convicted of possession of cocaine and of the lesser offense of possession of marijuana in an amount less than 30 grams. Jackson appeals his convictions, asserting numerous perceived errors on the part of the trial court: (1) the trial court did not adequately warn Jackson of the danger of self-representation; (2) Jackson received ineffective assistance of counsel; (3) the trial judge failed to recuse himself from the trial and the sentencing hearing; (4) there was misconduct by the prosecutor; (5) the indictment was defective; and (6) the jury instructions were improper. We find no merit to Jackson's assignments of error and affirm.

DISCUSSION

I. Whether Jackson was adequately warned of the perils of self-representation.

¶ 5. Jackson's court-appointed counsel cross-examined the State's first witness, Officer Duncan, a state highway patrolman. After this cross-examination, Jackson made a motion before the trial court to proceed without court-appointed counsel. Jackson was unhappy with Shackelford's performance and thought that he would be better off representing himself at trial. Jackson now claims that his Sixth Amendment right to counsel was violated because the trial judge failed to adequately warn him of the perils of self-representation. This Court has held that "[a] waiver of the right to assistance of counsel may occur at any time, before or during the trial, but it must be made with a full understanding of its disadvantages and consequences." Davis v. State, 811 So.2d 346, 350(¶ 6) (Miss.Ct.App.2001) (citations omitted). Jackson claims that because the trial judge did not adequately warn him of the disadvantages and consequences of self-representation, his wavier was not knowing and intelligent.

¶ 6. Rule 8.05 of the Uniform Rules of Circuit and County Court outline the procedure necessary to protect the rights of defendants who wish to proceed pro se. Rule 8.05 requires that the trial judge inform the defendant that he has a right to court-appointed counsel; that he has a right to conduct his own defense; that the rules of evidence, procedure, and courtroom protocol will apply to the defendant; that those rules are difficult and his defense will be hampered if he proceeds without a lawyer; and that the right to proceed pro se usually increases the likelihood of an unfavorable trial outcome.

¶ 7. Jackson's argument that he was not adequately warned fails, however, because the record is clear that the trial judge warned Jackson that it was not in his best interest to represent himself. During pretrial motions, Jackson made a complaint to the trial judge claiming that Shackelford's assistance in his case was ineffective because he and Shackelford had an argument at one of their meetings. The trial judge informed Jackson: "Now, let me say this, Mr. Shackelford is a good attorney. He has been, in my experience, one that can win a lot of cases. He can help you. If there's anybody that could help you, he's it.... I would suggest, and just tell you, that your best interest is to work with Mr. Shackelford today.... He's been in this business a long time and I have seen him win a lot more than he's lost. Work with him today and it will do you good, okay."

¶ 8. During trial, after Jackson requested that he be allowed to proceed pro se without Shackelford, the trial judge stated, "You don't know how to ask the questions. Mr. Jackson, it's just not in your best interest to do that." Jackson replied, "Well, I clearly understand what you are saying but still I would like to represent myself or have a mistrial or whatever...." The trial judge then agreed that they would try the arrangement with Jackson questioning his own witnesses for a while. He informed Jackson that he would be "bound by the same rules that everybody else is. If there's objections, I'm going to have to stop you. You are going to have to follow what everybody else does that practices law, okay?" The trial judge reluctantly granted Jackson's motion to represent himself, but he ordered Shackelford to remain at the defense table and advise Jackson throughout his trial. Jackson was adequately warned that it was not in his best interest to proceed without counsel. This assignment of error is without merit.

II. Whether Jackson received ineffective assistance of counsel.

¶ 9. For an ineffective assistance of counsel claim to succeed, a defendant must satisfy the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stringer v. State, 627 So.2d 326, 328 (Miss. 1993). The test requires that the defendant first show that counsel was deficient; he must then show that the deficiency prejudiced his defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). "The defendant must show that there is a reasonable probability that but for these errors by counsel, the defendant would have received a different result from the trial court." Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992) (citing Fisher v. State, 532 So.2d 992, 997 (Miss.1988)). Further, the defendant must overcome a "strong but rebuttable presumption that counsel's conduct falls within a broad range of reasonable professional assistance." McQuarter, 574 So.2d at 687.

¶ 10. Because Jackson chose to proceed pro se, he cannot now complain of Shackelford's performance as his stand-by counsel:

It has been established by the Mississippi Supreme Court that as stand-by counsel, a defense attorney is "without authority, discretion or control and the charge that he rendered constitutionally ineffective assistance is without merit." Estelle v. State, 558 So.2d 843 (Miss. 1990). Estelle held that where a defendant declines appointed counsel and proceeds to represent himself with appointed counsel only standing by to provide assistance if called upon that the defendant will not be heard to complain on appeal of ineffective assistance of counsel. Estelle, 558 So.2d at 847. The case sub judice is one such case.

Davis, 811 So.2d at 351(¶ 10). Because Jackson insisted on representing himself at trial, he cannot now complain that counsel was deficient.

¶ 11. However, Shackelford did remain at the defense table to advise Jackson if he asked for help. In some cases, when a defendant does not effectively waive his right to counsel, courts recognize a type of hybrid representation. Our supreme court has explained this procedure as follows:

In order to strike a balance between...