Lindsey v. State

Decision Date17 March 2005
Docket NumberNo. 2003-KA-00331-SCT.,2003-KA-00331-SCT.
Citation939 So.2d 743
PartiesRandy Cal LINDSEY v. STATE of Mississippi.
CourtMississippi Supreme Court

Edmund J. Phillips, Jr., Appellant, pro se.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

Before WALLER, P.J., GRAVES AND DICKINSON, JJ.

WALLER, Presiding Justice, for the Court:

¶ 1. Randy Cal Lindsey appeals from his conviction in Scott County Circuit Court of burglary of a business and his sentence as a habitual offender to seven years without parole in the custody of the Mississippi Department of Corrections. Lindsey's appellate attorney filed a brief arguing that Lindsey's appeal is without merit and cited to our decision in Turner v. State, 818 So.2d 1186, 1189 (Miss.2001) (providing procedure to be followed by attorneys who believe indigent client's appeal has no merit), overruling Killingsworth v. State, 490 So.2d 849 (Miss.1986).1 Lindsey now comes before the Court pro se.

FACTS

¶ 2. After being dispatched to Cox's Chevron in response to a burglary alarm, Officers Will Jones and Russell Ellis of the Forest Police Department discovered that someone had broken the glass in the front door with a brick and stolen seven cartons of Marlboro cigarettes. Upon arriving at the scene around 5 a.m., Ellis questioned Fonzy Odom, who was standing in the area. Odom told Ellis he had seen two black males at the scene and indicated the men went down West Fourth Street.2 After going down the street, Ellis noticed Randy Lindsey under a car port and tried to question him. When Lindsey behaved defensively, Ellis took him into custody. Upon returning to the car port to investigate, Ellis discovered seven cartons of Marlboro cigarettes inside a stack of tires close to where Lindsey had been standing when Ellis spotted him.

¶ 3. The surveillance tape revealed that the person who stole the cigarettes wore the same outfit that Lindsey was wearing that morning. Furthermore, after the police took Odom into custody, he altered his previous statement and told the police that after the two black males ran off, Lindsey came up with the cigarettes in hand and said, "Fonzy, I got what you need."

¶ 4. At trial, Lindsey admitted taking the cigarettes, but denied breaking into Cox's Chevron. He explained,

I went behind the Chevron and used the bathroom. As I was getting ready to come around the corner the alarm went off, so I panicked at first, and I said, `Well, hey, I ain't did nothing [sic].'... So, when I go around front I see the front glass broken, and I said, `Well, s* * *, this is opportunity[.]' So I squatted down and went on into the store ... and got some cigarettes and ran behind the store to a friend's house[.]

¶ 5. The following exchange took place between the prosecutor and Lindsey regarding Lindsey's partial admission.

MR. TURNER: [I]f I understand your story correctly, you're saying somebody else just came by and did the breaking for you, but they just — they didn't go in. So, you fortuitously came by and saw the door had already been broken and said, `Well, if I can sell that to a jury if I get caught, the worst thing they'll get me for is maybe just a little petty larceny or something.' Is that kind of what your thinking process was?

MR. LINDSEY: No sir, that's not my thinking process. When I came around the building you could see someone else leaving. I didn't know if it was the two men or what, but you could kind of tell from the corner there was somebody running ... away. So, that was my chance to get me some cigarettes[.]

¶ 6. The State presented no evidence revealing who broke the glass door with the brick. After the State rested, Lindsey's trial counsel moved for a directed verdict, arguing the State failed to prove all the elements of burglary beyond a reasonable doubt. The trial court overruled the objection, and after presentation of the defense, the jury unanimously found Lindsey guilty of burglary. Lindsey's attorney filed a brief purportedly complying with the Turner decision and notified Lindsey of his right to file a brief pro se.

ANALYSIS

¶ 7. In his pro se brief, Lindsey raises several grounds of reversible error: (1) he has unconstitutionally been denied assistance of counsel at the appellate stage; (2) the State failed to prove beyond a reasonable doubt Lindsey committed the crime of burglary; (3) the trial court committed various errors in denying a continuance as well as denying him a trial transcript; (4) he received ineffective assistance of counsel at trial; and (5) the Mississippi Supreme Court "error [sic] by not entertaining petitioner [sic] unexhaustion [sic] claim." Finding additional briefing warranted in accord with Lindsey's complaints regarding issue one, we direct further briefing consistent with this opinion.

¶ 8. Lindsey cites the Fourteenth Amendment as well as applicable Supreme Court precedent and essentially complains pro se that he has been denied his constitutional right to counsel as a result of his attorney's failure to properly represent him before this Court. The State acknowledges the legitimacy of Lindsey's argument, and in its response, highlights the unconstitutionality of our procedure for addressing potentially frivolous claims of indigent defendants.3 We therefore find Lindsey has adequately raised the issue and address this argument on its merits.

¶ 9. In Smith v. Robbins, 528 U.S. 259, 273-74, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the United States Supreme Court, speaking through Justice Thomas, stated that although the Court had previously laid down a "prophylactic framework" to vindicate the Fourteenth Amendment right to appellate counsel, it "expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals." Instead, the Court stated, "States may — and, we are confident, will — craft procedures that, in terms of policy, are superior to, or at least as good as" the framework the Court introduced in Anders v. California, 386 U.S 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

¶ 10. Before reviewing California's procedure, the Court stated,

[I]t is important to focus on the underlying goals that the procedure should serve — to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required by Douglas, and also to enable the State to `protect itself so that frivolous appeals are not subsidized and public moneys are not needlessly spent.'... For although, under Douglas, indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.

Robbins, 528 U.S. at 277-78, 120 S.Ct. 746 (citations omitted).

¶ 11. In its survey of the procedures which it has found unconstitutionally inadequate in past cases, the Court noted four instances in which it had found State procedures to be inappropriate: (1) when the procedure requires that a defendant be "unlikely to prevail on appeal," rather than requiring the appellate court or counsel to find the appeal is frivolous; (2) when a procedure permits appellate counsel to withdraw his or her representation of the indigent defendant and the appellate court decide the appeal without appointing new counsel;4 (3) when the procedure allows appellate counsel to submit a letter asserting the "bare conclusion" that the appeal is without merit; and (4) when the procedure only provides one level of review. Id. at 279, 120 S.Ct. 746.

¶ 12. In Turner, we approved the following procedure for use when defendant's appellate counsel believes an indigent defendant's appeal to be frivolous:

The appellate counsel must:

(1) determine that the defendant is "unlikely to prevail on appeal."

(2) file a brief indicating "that he scoured the record thoroughly[,]" and "refer[] to anything in the record that might arguably support the appeal[,]" and

(3) advise client of his right to file a pro se supplemental brief.

At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases.

Turner, 818 So.2d at 1189 (citations omitted).

¶ 13. Today, based on the sound logic and admonition of the Supreme Court's holding in Robbins, we overrule Turner in part.

¶ 14. First, by requiring appellate counsel to determine the client is merely "unlikely to prevail on appeal," we inadvertently endorsed one of the very problems which the Supreme Court found to render such a procedure unconstitutional. It is more than a matter of semantics that led the Robbins Court to draw a distinction between a claimant who is unlikely to prevail on appeal and one whose claims are altogether frivolous. A claim is frivolous when it is "lacking in arguable issues." Robbins, 528 U.S. at 279-80, 120 S.Ct. 746. Although Lindsey may indeed be unlikely to prevail in this appeal, that does not mean his arguments reach the level of frivolity (i.e. that he presents no arguable issues), and requiring his attorney to make such an argument explicitly violates Robbins.

¶ 15. The second problem with the Turner procedure is less obvious than the first. According to Robbins, a procedure is unconstitutional where either the appellate court allows counsel to withdraw before the court determines whether the appeal is frivolous or where a procedure makes no provision for the court to receive a brief on the merits after finding arguable issues. Id. at 280, 120 S.Ct. 746. Under Turner, when appellate counsel files a brief with the appellate court, the client is concurrently advised of his or her right to file a pro se brief. Turner, 818 So.2d at 1189. Thereafter, the appellate court must "make its own independent review of the record." Id. This procedure potentially leaves the...

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