Johnson v. State, 91-KA-0431

• Citation: 631 So.2d 185
• Decision Date: 27 January 1994
• Docket Number: No. 91-KA-0431,91-KA-0431
• Parties: Willie Rome JOHNSON, v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 185

631 So.2d 185

Willie Rome JOHNSON, v. STATE of Mississippi.

No. 91-KA-0431.

Supreme Court of Mississippi.

Jan. 27, 1994.

C. Emanuel Smith, Smith & Cotton, Tupelo, for appellant.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and SMITH, JJ.

SMITH, Justice, for the Court:

Willie Rome Johnson was convicted in the Clay County Circuit Court on charges that he sold cocaine to an undercover policeman for $75.00. Johnson was found to be an habitual offender and sentenced to thirty years in the custody of the Mississippi Department of Corrections.

Johnson raises the following issues in this appeal:

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A MOTION FOR CONTINUANCE WHERE THE DEFENDANT DESIRED TO EMPLOY COUNSEL OF HIS OWN CHOOSING FOR PURPOSES OF THE TRIAL, TRIAL COUNSEL HAD NOT ADEQUATELY PREPARED FOR TRIAL NOR HAD HE SUFFICIENT TIME TO PREPARE FOR TRIAL AND THE STATE HAD FAILED TO PRODUCE THE IDENTITY OF ANY EYEWITNESS TO THE EVENTS FORMING THE BASIS OF THE INDICTMENT AND CHARGES AGAINST THE DEFENDANT UNTIL THE TIME OF TRIAL

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INQUIRE INTO THE BIAS OR PREJUDICE OF JUROR NO. 4, CUNNINGHAM PRIOR TO ACCEPTING A CHALLENGE OF SAID JUROR FOR CAUSE.

III. WHETHER THE TRIAL COURT MAINTAINED AN ADEQUATE RECORD IN THE SENTENCING TRIAL AND, IF SO, WHETHER THE VERDICT IN THE SENTENCING TRIAL WAS SUPPORTED BY EVIDENCE IN THE RECORD.

Appointed counsel for Johnson made three motions to the court requesting a continuance. The first motion for continuance alleged that Johnson desired to retain Emanuel The court concluded that the first motion was for the purpose of delay and that Johnson's counsel had adequate time to prepare for trial. The witness whose identity was not known to the State prior to trial was subpoenaed and interviewed by Johnson's attorney but was not called as a witness.

Smith as his attorney. In the motion, filed the day before trial, appointed counsel stated that Johnson refused to communicate with him and told him that Smith had been retained to represent him. Attached to the motion was an affidavit from Smith that he could only accept the representation if the case were continued to the next term of court. The second motion for continuance alleged that the trial counsel had not adequately prepared for trial or had sufficient time to prepare. The third motion for continuance alleged that the identity of an eyewitness had not been produced by the State. All of the motions for continuance were denied.

Venireman Cunningham stated during voir dire that he was related by marriage to Johnson and had lived next door to Johnson. The court allowed a challenge for cause against Johnson.

Johnson argues that in the sentencing hearing there was a "technical non-compliance with the habitual offender statute" because no mention was made of the conviction in the hearing. This allegation is not supported by the record. Johnson also complains that the court failed to require the court reporter to record the arguments of counsel on sentencing. No request or objection was made to have this argument recorded and transcribed.

Johnson has not challenged the sufficiency of the evidence to support his conviction or his status as an habitual offender. The evidence is overwhelming. Johnson has not raised any claim warranting reversal. The trial court did not abuse its discretion in denying the motions for continuance. There was no error in excusing the potential juror who knew and was related to Johnson. The sentencing hearing was properly conducted. This Court affirms Johnson's conviction and sentence.

THE FACTS

On May 4, 1989, Bruce Andress, an undercover narcotics officer, purchased a small bag of cocaine from Johnson in Johnson's office in the rear of a pool hall in West Point. Johnson was paid $75. Andress signalled other officers to assist in the arrest after the sale. The officers also recovered an additional container of cocaine which Johnson tried to destroy by dumping in a bucket of Purex bleach in the office. During the sales transaction and arrest there was another man present in the office. Officer Andress did not know the man and the man was allowed to leave without being arrested or questioned by the police officers.

THE DISCUSSION

DID THE TRIAL COURT COMMIT ERROR IN OVERRULING JOHNSON'S MOTIONS FOR CONTINUANCE?

Although Johnson's primary argument is that the trial court erred in overruling his motions for continuance, he first complains that he "was denied effective assistance of counsel by having no counsel at arraignment or during the first 170 days there after."

Johnson was arraigned on October 13, 1989 and was represented by Rufus Ward, one of the public defenders. At the request of the court, Ward was purportedly standing in for William Catledge. The court was under the mistaken impression that Catledge was representing Johnson. Catledge had represented Johnson at a probation revocation hearing held after Johnson's arrest. It is unclear why Catledge did not continue representing Johnson. On December 19, 1989, Circuit Judge Lee Howard conducted a docket setting and determined that Catledge did not represent Johnson and appointed Louis Coleman, a public defender, to represent Johnson. On December 21, 1989, Coleman filed a motion for discovery on Johnson's behalf.

Johnson's contention that he was not represented at the arraignment is not supported by the record. It does appear that Johnson was not thereafter represented by counsel until December 19, 1989. Under the Rule 1.05 of the Uniform Criminal Rules of Circuit Court Practice provides:

Mississippi Constitution, the right to counsel "attaches once the proceedings reach the accusatory stage," which is "earlier in the day than does the federal right." Williamson v. State, 512 So.2d 868, 876 (Miss.1987).

Counsel shall be appointed no later than the time of initial appearance, and once appointed, counsel shall continue to represent the defendant until permitted to withdraw by proper order of the court.

Such appointed counsel shall have free access to the defendant who shall have process to compel the attendance of witnesses in his favor.

The defendant shall have such representation available at every critical stage of the proceeding against him where a substantial right may be affected.

Even so, the arraignment proceeding as practiced in Mississippi does not constitute a critical stage whereby the presence of counsel would be required under the Sixth Amendment of the United States Constitution or the Mississippi Constitution. Williamson, 512 So.2d at 875. Unless Johnson can show some adverse effect upon his ability to conduct a defense, the denial of the right to counsel at this early stage does not constitute reversible error. Id. at 876. As stated in Wright v. State, 512 So.2d 679, 681 (Miss.1987), the denial of the entitlement to timely appointed counsel "will result in reversal of a subsequent conviction, however, only where it is shown that the accused experienced some untoward consequence flowing directly from denial of counsel." Johnson has not made such a showing that he experienced any adverse effect or untoward consequence. During the time Johnson was entitled to but without counsel there is no indication that the State took advantage of the situation or that any further proceedings were conducted.

Johnson next raises the issue of his three motions for continuance which were overruled by the lower court. The first motion concerned Johnson's desire to substitute counsel and related matters.

On April 2, 1990, Coleman met with Johnson at the Clay County Jail. Johnson had until that date been at the Mississippi State Penitentiary at Parchman. Johnson refused to talk to Coleman because Johnson's family was in the process of hiring another attorney, Emanuel Smith. The next day, April 3, Coleman was advised by Smith that, while arrangements had been made for him to represent Johnson, he could only represent Johnson if the case were set for the next week during the same term to allow him time to prepare. On April 4, the original date set for trial, Coleman moved for a preliminary hearing and was granted a continuance until April 11, 1990, the next week during the same term of court. On April 9, Coleman was advised by Smith that he would be unable to represent Johnson due to scheduling conflicts. Smith had prepared a motion for continuance which he sent to Coleman. Smith also sent an affidavit stating that he could only represent Johnson if the case were continued to the next term of court. On April 10, Coleman filed a Motion for Continuance and Relief on Related Matters in which he set out the course of his dealings with Johnson and Smith, including as exhibits to the motion the affidavit and motion sent him by Smith. Coleman also stated in the motion that there was a material witness present at the sale who he was unable to identify and locate because Johnson refused to communicate with him.

On April 11, 1990, Coleman filed a second motion for continuance asserting the same grounds raised in the first motion and adding that the "problems have been amplified and compounded by actions of the State" which prevented Coleman from being able to properly use trial preparation time. Coleman stated to the court that he had a very crowded docket for the week and had been unable to spend as much time preparing for the case due to an unexpected change in another trial.

The lower court, in denying the first two motions, found, in part, as follows:

The testimony before the court is that the defendant met with Mr. Coleman on April the 2nd and 3rd, and on his own election, decided not to discuss the case with his counsel. So if there's any problem it's because he created the problem and now he wants to take advantage of the problem Johnson notes in his brief that the procedure...