Moore v. State

• Decision Date: 09 January 2020
• Docket Number: NO. 2018-KA-00121-SCT,2018-KA-00121-SCT
• Citation: 287 So.3d 189
• Parties: Corey MOORE a/k/a Corey Patrick Moore a/k/a Pat v. STATE of Mississippi
• Court: Mississippi Supreme Court

287 So.3d 189

Corey MOORE a/k/a Corey Patrick Moore a/k/a Pat

v.STATE of Mississippi

NO. 2018-KA-00121-SCT

Supreme Court of Mississippi.

January 9, 2020

ATTORNEY FOR APPELLANT: THOMAS W. POWELL,

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY, JR.

BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

ISHEE, JUSTICE, FOR THE COURT:

¶1. Corey Moore disappeared from his trial after the court refused to grant him a continuance. He was convicted in absentia and sentenced to twenty-five years as a habitual offender. On appeal, Moore argues that he received ineffective assistance of counsel and that the trial court erred by not ordering a competency hearing, sua sponte, based on Moore's diagnosis of post-traumatic stress disorder

(PTSD) and vague, general assertions about Moore's mental state from lay witnesses. We find that Moore based the ineffective-assistance-of-counsel claims on facts outside the record; thus, those claims are suitable only for postconviction review, not direct appeal. We also find no basis to doubt the trial judge's finding that Moore's absence from the trial was "willful, voluntary, and deliberate." We affirm Moore's conviction and sentence.

FACTS

¶2. On August 23, 2014, an off-duty Jackson police officer, George Jimmerson, noticed a vehicle parked in the driveway of his ex-wife's home. Officer Jimmerson's ex-wife Nita McGee (at the time, Nita Cornelius) was staying with family while recovering from surgery. She confirmed to Officer Jimmerson the car was not supposed to be there. It was later discovered that a door to the house had been kicked in, and Corey Moore was found hiding in a storage room. The vehicle in McGee's driveway was determined to belong to Moore's mother, and personal property from inside the house, including a musical instrument owned by McGee and Jimmerson's daughter said to be worth more than $1000, was found inside it. Moore and McGee knew each other: McGee worked at the Department of Veterans Affairs Medical Center (VA) where Moore had been a patient, she had paid Moore for work at her house, and she had "helped him" in the past. But Moore did not have permission to be in her house or to take her property.

¶3. After numerous continuances attributed to a busy docket, trial was set for June 5, 2017. Moore did not appear. His appointed counsel, Clayton Lockhart, admitted Moore knew the court date. Lockhart then moved for a continuance, saying he wanted time to try to negotiate a plea deal with the district attorney. The court took the motion under advisement and delayed the trial until the next morning.

¶4. Moore appeared in court the second day. The trial court denied the continuance motion. Moore then asked to address the court; he said he had never met his attorney and had only spoken to him "like three times." According to Moore, they had not discussed the case. Moore said he wanted to hire his own attorney but was still trying to get the money. Moore said the second day of trial was the first time he had seen his attorney. Lockhart admitted they had never met in person, but he said it was "not due to any fault of [his] own." The trial judge then announced that the trial would proceed. After a break, Moore again spoke to the judge, apparently asking for a continuance. Moore said that he was a veteran, that he had been "shot five times," and that he had been diagnosed with PTSD. Moore mentioned medication: "that's what brought me here today."

Moore then said he "didn't feel comfortable" with his attorney and with the trial's happening that day; he felt he was being rushed into trial. Moore added that his attorney "[didn't] even know about my medical condition."

¶5. The circuit judge then asked Lockhart, Moore's appointed attorney, to respond. Lockhart said,

Once again, Your Honor, he is correct that this is our first time meeting. This is not my first time talking to this individual and trying to request a meeting. He's always had a reason for not meeting me; including him being at the VA for a few months last year after being diagnosed with PTSD. He even had a letter from his caseworker at that time saying that. Mr. Moore, as I said to the Court before, has called me a couple of times. We have talked on the phone more than once. Mr. Moore has told me a couple of times that he was hiring his own attorney and that he wanted to fire me, and he's never done anything to try to do that. So I just don't know what else I'm supposed to do here, Your Honor. I've tried. He's right, we don't know each other, we haven't actually had a sit down and discuss the case. But again, I don't believe that's due to anything that I've done wrong.

¶6. The trial judge accepted Lockhart's account and decided to proceed with the trial that day after a five-minute break:

It's apparent Mr. Lockhart has attempted to discuss the case with Mr. Moore, who has related to Mr. Lockhart that he intended at some point to hire an attorney—which he never did. So we're here today. Mr. Moore's been aware the case has been set for trial for quite some time, and we're going to proceed with the trial.

¶7. Moore left the courthouse during the break and never returned. Lockhart reported that he had tried to call Moore but that Moore's phone went to voicemail. The court proceeded with voir dire and then recessed for the day. Lockhart tried to get in touch with Moore again after the first day of trial, but when he tried Moore's phone, it "went to voicemail after ringing a few times." Lockhart left Moore a message saying the trial would proceed the next day and that he should appear.

¶8. The next morning, Moore again did not appear. The night before, a local attorney, Robyn Teague, had contacted Lockhart and told him Moore had tried to retain her services. Teague appeared in court the second day of the trial, not as Moore's attorney, but to explain what had happened. She reported that Moore had started paying a retainer but had never finished. Teague said Moore's mother had told her Moore had "mental issues," that he had been treated for a "psychiatric condition" at the VA hospital, and that he had been "in and out of the psychiatric ward" in jail. Teague clarified that Moore had told her specifically that he suffered from PTSD but that she had never seen any documentation regarding Moore's diagnosis or treatment. Teague had talked to Moore the day before, and, apparently, the morning of the second day of trial. She had told him to go to court. Teague was also afraid of Moore and feared he was dangerous. She said,

I've asked law enforcement if he was violent or if they, you know, knew him to be violent. And they didn't confirm that he was. But from the last 24-hours communication with him—I'm not a medical professional—but common sense tells me that he's not stable at all. And I think he's dangerous. And he's not in his right mind; I do know that.

Teague did not elaborate further, but she added that she did not believe she was representing Moore and was not prepared to do so. She added that Moore was aware the court would try his case even if he was not present.

¶9. The trial court then specifically asked Lockhart, Moore's appointed public defender, why he had not filed a motion for a mental examination. Lockhart said Moore had been diagnosed with PTSD about eighteen months before, but he had "never detected anything over the phone where [Moore] had any kind of mental issues." In their last conversation before those immediately preceding the trial, Moore had thanked Lockhart for his services but had told him he was going to retain other counsel; Lockhart had emphasized that the attorney would have to formally enter an appearance before he could withdraw from the case. Moore "always seemed competent over the telephone."

¶10. The trial judge found,

I announced we were about to bring the jury in to try his case. [Moore] had absolutely no doubt, that he knew that his trial was five minutes away. We took a comfort break, a short one; when we returned, he was gone. He left some personal effects on the table. And on report of his counsel he had left the courthouse. He hadn't been back since. His absence is clearly willful, voluntary, and deliberate. And I'm finding that he's aware of his trial.

¶11. At trial, Lockhart presented a coherent theory of the defense, that Moore and the victim had been dating and that Moore was in her home with her permission. Moore's attorney brought out that the victim was separated from her husband, that Moore had been invited to her house to help her move furniture, and that he had her cell phone number and had called and texted her. The victim, who worked at the VA hospital where Moore had been a patient, apparently had been questioned about the propriety of her contact with Moore, although there was no suggestion of an intimate relationship with Moore. The defense was ultimately unsuccessful, but we observe it is the same theory Moore later asserted personally at the sentencing hearing—"I didn't do it. Me and the lady was dating. She got mad."

¶12. At the sentencing hearing, Moore apologized "for running out." He said he had used alcohol and drugs to self-medicate since he returned from the Gulf War in 1991. Moore said he was innocent of the burglary charges and that he was not a criminal, just an addict. At the sentencing hearing Moore denied Lockhart was his attorney. Moore stopped talking about the merits of his defense after being cautioned by the judge. He closed by saying that he was not violent and that he was then in treatment for substance abuse and had been clean "since the 7th of August," about two months after the trial and two months before sentencing.

DISCUSSION

¶13. Moore presents five issues on appeal: (1) whether Moore received ineffective assistance of counsel at trial, (2) whether the circuit court committed plain error by allowing ineffective assistance of counsel, (3) whether the circuit court erred by trying Moore in absentia, (4) whether the circuit court erred by failing...