Moody v. State, 91-KA-00588

• Citation: 644 So.2d 451
• Decision Date: 20 October 1994
• Docket Number: No. 91-KA-00588,91-KA-00588
• Parties: John W. MOODY and Alvin A. Garcia, Jr. v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 451

644 So.2d 451

John W. MOODY and Alvin A. Garcia, Jr. v. STATE of Mississippi.

No. 91-KA-00588.

Supreme Court of Mississippi.

Oct. 20, 1994.

Jim W. Rose, Albert Necaise, Gulfport, for appellant.

Michael C. Moore, Atty. Gen., Jean Smith Vaughan, Sp. Ass't Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and ROBERTS, JJ.

DAN M. LEE, Presiding Justice, for the Court:

I.

John W. Moody and Alvin A. Garcia, Jr. were convicted of aggravated assault, robbery and grand larceny following jury deliberation of less than one hour and sentenced by the Circuit Court of Hancock County, Mississippi, to a total of twenty-three (23) years each under the supervision of the Mississippi Department of Corrections. They appeal and, as their principal issue, claim they were denied the effective assistance of counsel during the trial and at sentencing. From our review of the totality of the circumstances, we conclude defense counsels' efforts are both deficient and prejudicial and limit our discussion to that issue, upon which we reverse and remand for a new trial.

II.

All charges arise out of the same series of events beginning at about 3:00 o'clock a.m. on April 24, 1990, on the Ulman Avenue Pier in Bay St. Louis. Donald Ray Sander, Sr., a 61-year-old retired and disabled refrigeration, air conditioning, and heating repairman, was on the pier in the process of placing his crab nets in the bay when he was attacked by two men. He was robbed and thrown from the pier by the two assailants. Sander's wallet, food stamps, keys and knife were taken and his blue van and contents were stolen. He was left for dead in the waist-deep water. He described his attackers as two white men, one big, called John, and one small. He watched from under the pier as the two drove away in his van eastbound for Pass Christian. Sander managed to walk out of the shallow water to the rocks and, from there, he went to a nearby home for the elderly. The police were summoned, and he was taken by ambulance to the hospital. He was treated for head lacerations and bruises and released.

Later that same morning, he was driven by Officer Van Fayard of the Bay St. Louis Police Department by Garcia's residence where he was asked to identify two white males standing on the steps of the house. Sander tentatively identified the smaller of the two, but not the other.

Garcia, the smaller, and Moody were arrested and searched. Food stamp coupon booklets, a $10 food receipt from Charter Food Store in Pass Christian, and a small calculator were taken from Garcia's pockets. At trial, Sander identified the food stamp coupon booklets and calculator as his property. The $10 receipt was identified by the clerk who received a $10 food coupon plus a $5 food stamp tip in return for purchases made by Garcia and Moody that same morning.

Later that morning, Sander's van was found abandoned on the railroad tracks approximately four blocks from where the two were arrested.

Moody retained his trial counsel when the attorney who represented him at the preliminary hearing withdrew. Garcia retained the same defense counsel just two days prior to trial because his court-appointed attorney urged him to engage in plea bargaining. Different counsel was employed to handle this appeal.

III.

Moody and Garcia list twenty-one trial counsel deficiencies and resulting prejudice:

(1) He did not raise any objections to the three count indictment or proof therein on double jeopardy grounds.

(2) He failed to challenge Garcia and Moody's arrest.

(3) He failed to move to suppress the out-of-court identification of the defendants.

(4) He did not test the admissibility of items seized from Garcia that allegedly incriminated him and which were introduced into evidence without objection although a basis for attacking the legality of the arrest and search existed on lack of probable cause grounds.

(5) He did not file a motion to suppress the in-court identification by the victim although the out-of-court identification of the defendants had arguably been unduly suggestive in that there was no line up and the victim was taken to the home of one of the defendants to observe the two men as they were being questioned by the police before their arrest and just a few hours after the crime was committed.

(6) He failed to object to the aggravated assault and grand larceny charge and conviction on double jeopardy grounds. On the contrary, he conceded the point while arguing the issue of armed robbery versus robbery saying, "Now, the other two charges of grand larceny and the aggravated assault, I can see."

(7) He neither filed a motion to exclude Moody's previous conviction of second degree theft nor requested the Judge to perform the balancing test outlined by this Court in Peterson v. State, 518 So.2d 632 (Miss.1987), and McInnis v. State, 527 So.2d 84 (Miss.1988), which, if successful, would have presented Moody with an opportunity to testify without fear of being impeached by that conviction.

(8) He failed to interview, subpoena, or call to testify available witnesses who could corroborate the appellants' whereabouts on the night in question.

(9) He did not inquire into the defendants' backgrounds, family and personal circumstances, employment associations, and related matters to any significant extent.

(10) He did not ask the jury one single voir dire question although the prosecutor conducted an in-depth voir dire of the jury.

(11) He reserved opening statement but never gave one even though the prosecuting attorney gave a detailed and incriminating opening statement.

(12) He did not question Mr. Sander during his testimony regarding Sander's lengthy conversation with Garcia before trial in the hallway at the courthouse. Sander did not recognize Garcia until the prosecution pointed out to Mr. Sander that it was Garcia. Mr. Sander brought out during his testimony that he was unaware that the defendants were out of jail on bail.

(13) He failed to establish by way of documentation or witnesses that Garcia was receiving food stamps at the time of the robbery.

(14) He failed to object to Mr. Sander's hearsay testimony which was unduly prejudicial. The victim testified, in regard to the personal items that were recovered, "They [police] told me they got that out of a dumpster or something that these boys threw them in."

(15) He failed to object to the testimony of Mr. Sander wherein he stated, in regard to the in-court identification and the out-of-court identification of John Moody, "I would say 10 to 15, maybe 20 percent of identity, I can identify him" and "I told you one I could possibly identify [reference to Garcia]. I saw him good. The other one, 10, 20, 15 percent maybe."

(16) He introduced into evidence the unduly suggestive and highly prejudicial identification photographs from the jail taken on the night of their arrest of the defendants in handcuffs.

(17) Both defendants were urged by trial counsel not to testify or present any defense because, if they did, they would surely be put into jail. The defendants wanted to testify.

(18) He failed to present several witnesses and character witnesses who could have otherwise been called to testify, including Garcia's father, who was present at his son's house the night and early morning when the police came to question Garcia.

(19) Trial counsel, according to Moody and Garcia, never made any independent investigation, did not interview any of the state's witnesses, and never inspected the various scenes discussed at the trial, although he received discovery from the State providing him with names and locations.

(20) He neglected to bring his trial notes to court for his closing argument, informing the jury he had left them at his office.

(21) Trial counsel was unable at sentencing to articulate any factors in favor of the defendants that would mitigate against sentences that totaled twenty-three years for both, even though: (a) both men were under twenty-two years of age; (b) defendant Moody was married; (c) both had children; (d) Garcia had no prior felony convictions; (e) Garcia had suffered a severe physical injury when younger resulting in psychological problems; (f) both had a history of steady employment; (g) neither had graduated from high school; and, (h) [sic] there were witnesses willing to provide testimony for them at sentencing.

Counsel's failure to question the jury panel during voir dire, failure to make an opening statement, failure to call any defense witnesses, and closing argument admission that he failed to bring his trial notes to court highlight this claim. Defense counsel also put in evidence a picture of his clients made at the police station while they were handcuffed. On these allegations, we question the rebuttable presumption that counsel is effective. The record confirms these allegations. Following jury examination by the Court and the State, defense counsel announced: "I have no voir dire for the jury."

During the State's opening statement, defense counsel made this revealing objection:

MR. OLIVER: Your Honor, I have to object to that. These are facts which have never been put into evidence.

MR. HARKEY [ASSISTANT DISTRICT ATTORNEY]: That's true.

THE COURT: He's simply stating an outline of the evidence as he views it to be. Overruled.

Following the State's opening statement, the Court asked defense counsel:

THE COURT: Do you wish to reserve [opening statement]?

MR. OLIVER: Yes, sir.

Defense counsel never made an opening statement leaving the incriminating statement of the State unchallenged.

The victim, during direct examination, was asked if he could identify Garcia and Moody as his two assailants. His reply was "[I] possibly could identify the young guy. The big guy,.... I would say 10 to 15, maybe 20 percent of identity, I can identify him." Questioned further, the victim responded: "Well, I told the officers I can identify one." This line of questioning continued:...