Newell v. State

• Decision Date: 21 September 2021
• Docket Number: 2020-KA-01137-COA
• Citation: 336 So.3d 153
• Parties: Patrick NEWELL a/k/a Patrick Latrelle Newell, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

336 So.3d 153

Patrick NEWELL a/k/a Patrick Latrelle Newell, Appellant

v.STATE of Mississippi, Appellee

No. 2020-KA-01137-COA

Court of Appeals of Mississippi.

September 21, 2021

Rehearing Denied January 4, 2022

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

BEFORE WILSON, P.J., McDONALD AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On November 27, 2017, a Jones County grand jury indicted Patrick Newell for possession of twenty-two grams of methamphetamine with intent to distribute and as a habitual offender pursuant to Mississippi Code Annotated sections 41-29-139 (Supp. 2016) and 99-19-81 (Rev. 2015). After a jury trial on March 2, 2020, Newell was found guilty and was sentenced as a habitual offender to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty-five years to serve and the remaining five years suspended on condition of the successful completion of five years of post-release supervision. Newell was also ordered to pay a fine of $10,000 and court costs in the amount of $427.50, for a total of $10,427.50. On direct appeal, Newell contends that he received ineffective assistance of counsel. His contention is based upon his attorney's failure to pursue a motion to suppress evidence of what he claims to be the product of an illegal search and his attorney's failure to object to the admission of testimony regarding other alleged "bad acts." Newell seeks to have his conviction and sentence reversed and his case remanded for a new trial.

FACTS AND PROCEDURAL HISTORY

¶2. On January 13, 2017, Newell's Tahoe was stopped by Investigator James Stiglett on Highway 11 in the First Judicial District of Jones County, Mississippi, for speeding.¹ Once Newell was stopped, Stiglett checked his license and asked him to step out of the vehicle. Stiglett testified that Newell was breathing hard, sweating, and appeared nervous. At that point, Stiglett asked Newell if there was "anything" in the vehicle and requested his consent to search, which Newell refused. Within minutes, Lieutenant Robert Little and Investigator Jeff Monk arrived on the scene to assist Stiglett with the stop. Little testified that Newell was being evasive and otherwise acting nervous. Based upon Newell's behavior, his knowledge of Newell's prior history with narcotics, and information from a reliable confidential informant (CI), Stiglett left the scene to obtain a search warrant. Little testified that he allowed Newell and the passengers of the vehicle² to leave the scene upon their request; however, Little and Monk maintained custody of the vehicle until Stiglett obtained a search warrant. After the warrant was signed, the investigators searched Newell's vehicle and found sandwich bags, rolling papers, a bag of ammunition, a glasses case that contained methamphetamine,³ a digital scale with methamphetamine residue, and glass pipes. Law enforcement later apprehended Newell at a local residence.

¶3. On January 17, 2017, Newell was interviewed by Patrol Sergeant Jared Lindsey. At trial and after a brief conference between both attorneys, a video of Lindsey's interview with Newell was admitted into evidence and published to the jury without objection from defense counsel. During the interview, Lindsey questioned Newell about the facts and circumstances surrounding the traffic stop and search on January 13, 2017. Additionally, Newell was questioned concerning his participation in or knowledge of other unsolved crimes and investigations.

¶4. Following his indictment on November 27, 2017, Newell's first attorney filed a motion in limine to suppress on July 12, 2018, which alleged that the evidence seized pursuant to the vehicle search should be excluded from evidence admitted at trial. This motion was never brought before the court for a ruling. Newell proceeded to trial on March 2, 2020, with a second attorney and was found guilty as charged in the indictment. On March 13, 2020, Newell filed a motion for judgment of acquittal notwithstanding the verdict or for a new trial, which was denied in an order entered on September 25, 2020. On October 14, 2020, Newell filed his notice of appeal. Newell also filed a pro se motion to quash his indictment and vacate the judgment on November 6, 2020. His motion to quash and vacate was denied in an order entered on November 6, 2020.

ANALYSIS

¶5. Newell's sole assertion on appeal is that he received ineffective assistance of counsel at trial. More specifically, he alleges that his counsel was ineffective for (1) failing to pursue a motion to suppress the introduction of evidence obtained during the search of his vehicle on January 13, 2017, and (2) failing to object to the testimony presented at trial regarding prior alleged "bad acts."

¶6. In Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established the standard for which an ineffective-assistance-of-counsel claim must be proved:

First, the defendant must show that counsel's performance was deficient. This requires showing counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or a death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

(Emphasis added). In Sandlin v. State , 312 So. 3d 1191, 1197-98 (¶14) (Miss. Ct. App. 2020) cert. denied , 312 So. 3d 730 (Miss. 2021), this Court stated in part:

Both prongs of the Strickland test must be proved or the claim of ineffective assistance of counsel fails. [ Strickland , 466 U.S. at 687 ]. As to the first prong, this Court has held that "the accused is not entitled to errorless counsel, and not counsel judged ineffective by hindsight. Each case is to be decided on the totality of the facts of the entire record." Stringer v. State , 454 So. 2d 468, 476 (Miss. 1984). "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence ...." Id . at 477. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ " Wilcher v. State , 863 So. 2d 776, 796 (¶30) (Miss. 2003) (citing Stringer v. State , 454 So. 2d 468, 477 (Miss. 1984) ). In determining what falls into the category of trial strategy, this Court has held that "[c]ounsel's choice of whether or not to file certain motions , call certain witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy." Hill v. State , 850 So. 2d 223, 226 (¶14) (Miss. Ct. App. 2003) (citing Scott v. State , 742 So. 2d 1190 (¶14) (Miss. Ct. App. 1999) ). Further, "[a] strategic decision to pursue less than all plausible lines of defense will rarely, if ever, be deemed ineffective if counsel first adequately investigated the rejected alternative." Cole v. State , 666 So. 2d 767, 776 (Miss. 1995) (quoting Washington v. Strickland , 693 F.2d 1243, 1253-54 (5th Cir. 1982) [negative history omitted)])....

(Emphasis added).

¶7. In Ross v. State , 288 So. 3d 317, 324 (¶29) (Miss. 2020) (quoting Bell v. State , 202 So. 3d 1239, 1242 (¶12) (Miss. 2016) ), the Mississippi Supreme Court said:

"[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Bell v. State , 202 So. 3d 1239, 1242 (Miss. 2016) (internal quotation marks omitted) (quoting Dartez v. State , 177 So. 3d 420, 422-23 (Miss. 2015) ). This Court will address such claims on direct appeal when "[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that the findings of fact by a trial judge able to consider the demeanor of witnesses, etc.[,] are not needed." Id . (alterations in original) (internal quotation marks omitted) (quoting Read v. State , 430 So. 2d 832, 841 (Miss. 1983) ). This Court has also resolved ineffective-assistance-of-counsel claims on direct appeal when the record affirmatively shows that the claims are without merit. See, e.g. , Swinney v. State , 241 So. 3d 599, 613 (Miss. 2018) ; Ashford v. State , 233 So. 3d 765, 779-81 (Miss. 2017) ; see also M.R.A.P. 22.

Because the State did not stipulate that the record is adequate in the case at hand, we must examine the record to determine whether it "affirmatively shows ineffectiveness of constitutional dimensions" or whether the record "affirmatively shows that the claims are without merit" before this Court will consider a Strickland analysis.

I. MOTION IN LIMINE TO SUPPRESS

¶8. First, Newell alleges that his counsel was ineffective in failing to pursue a motion in limine that could have excluded incriminating evidence discovered when the officers searched his vehicle. A motion in limine to suppress was filed on July 12, 2018, but was never brought before the court for a ruling. There is no evidence in the record that any other written motion or motion made ore tenus attacking the admissibility of evidence seized during the search was ever brought before the court. The sandwich bags (Exhibit 1), tobacco papers (Exhibit 2), bag of ammunition (Exhibit 3), sunglasses case (Exhibit 4), digital scales (Exhibit 5), glass pipes (Exhibit 6), and methamphetamine...