Peterman v. State, 2018-KA-01161-COA
| Decision Date | 26 November 2019 |
| Docket Number | NO. 2018-KA-01161-COA,2018-KA-01161-COA |
| Parties | Joshua Anthony PETERMAN a/k/a Joshua A. Peterson a/k/a Joshua Peterson, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.
McDONALD, J., FOR THE COURT:
¶1. On December 29, 2016, a Harrison County grand jury indicted Joshua Anthony Peterman a/k/a Joshua A. Peterson a/k/a Joshua Peterson1 (Peterman) as a habitual offender for the murder of Tena Marie Broadus (Tena). Because of Peterman's indigency, the court appointed counsel to represent him. Prior to trial, Peterman filed a motion to dismiss his counsel and re-appoint new counsel, which the court denied. A jury convicted Peterman, and the court sentenced him to serve life in prison without eligibility for parole. Peterman subsequently filed a motion for a new trial or, alternatively, judgment notwithstanding the verdict (JNOV).2 The court denied Peterman's post-trial motion. Feeling aggrieved, Peterman timely appealed.
¶2. On appeal, Peterman's state-provided appellate counsel raises only one issue—that the trial court erred in denying Peterman's pretrial motion to dismiss counsel and re-appoint new counsel. Peterman claims this denial caused him to proceed to trial without adequate representation and denied him his fundamental right to a fair trial. Peterman also filed a pro se brief in which he identifies sixteen additional "issues," but we do not address these because they were not properly briefed pursuant to Rule 28 of the Mississippi Rules of Appellate Procedure. Finding no error in the trial court's denial of Peterman's motion regarding counsel, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. On December 29, 2016, a Harrison County Circuit Court grand jury indicted Peterman3 as a habitual offender for the first-degree murder of Tena. On January 18, 2017, Attorney Frank Philip Wittmann IV was appointed to represent Peterman. On the same day, Wittmann filed a waiver of arraignment and a not-guilty plea on behalf of Peterman. On January 23, 2017, Wittmann filed a discovery motion for production and inspection pursuant to Rule 9.04 of the Uniform Rules of Circuit and County Court4 on Peterman's behalf. Peterman filed two pro se motions for discovery dated February 10, 2017, and March 31, 2017, requesting that the State disclose additional information. Peterman also filed a motion for continuance, which the court granted, and the trial was reset for September 18, 2017.
¶4. On August 22, 2017, Wittmann sent Peterman a letter enclosing partial discovery. On October 4, 2017, the court granted a second motion for continuance and reset the trial for January 22, 2018.5
¶5. On October 25, 2017, Peterman filed a motion asking the court to dismiss his counsel and re-appoint new counsel. Peterman argued, among other things, that Wittmann had failed to secure evidence to assist in him preparing a defense and had failed to provide the discovery materials to him. In the motion, Peterman also stated that he had filed a complaint with the Mississippi Bar against Attorney Wittmann.
¶6. On November 13, 2017, the court held a hearing on Peterman's motion to dismiss counsel and re-appoint new counsel. Peterman testified that Wittmann was not responding to his letters or calls and that Wittmann was busy with a heavy caseload. Concerning Peterman's argument that Wittmann had failed to provide him with a copy of his discovery, Wittmann responded by asserting that he sent out the initial pages of discovery on August 22, 2017, and that he had very recently delivered the remaining pages of discovery. Wittmann explained that he initially only sent part of the discovery because "it is voluminous, and I generally do not like to send all of that out there because it walks off, and then that creates other complications."6 Wittmann stated that he thought everything was resolved after he delivered the remaining pages of discovery to Peterman. Wittmann said that because the issue was apparently not resolved, he felt that he and Peterman had irreconcilable differences. Further, Wittmann stated that he did not think he could proceed to represent Peterman because of the bar complaint Peterman had filed against him. Peterman and Wittmann both testified that it would not be appropriate for Wittmann to represent Peterman. The court explained that a conflict of interest was different than a conflict where one person is unable to get along with another. The court took the matter under advisement and continued the hearing until November 20, 2017.
¶7. At the November 20, 2017 hearing, Wittmann expressed to the court that he and Peterman "were on the same page" with him representing Peterman. Peterman responded that he understood that the court was not going to change his appointed lawyer and that he and Wittmann had spoken about their conflicts. The court concluded that the situation did not give rise to an actual legal conflict and denied Peterman's motion to dismiss counsel. In making its ruling, the court noted that Peterman had filed a bar complaint against his previous attorney of record.
¶8. Wittmann filed a motion for continuance in which he represented that Peterman waived all of his rights to a speedy trial. On February 6, 2018, the court granted the motion, and the trial was reset for May 7, 2018. Wittmann filed another, similar motion for continuance on May 7, 2018, which the Court granted.7 Trial was reset for June 25, 2018.
¶9. Peterman's four-day trial commenced on June 26, 2018. There were thirteen witnesses who testified on behalf of the State. Tena's mother testified that she had filed a missing-person's report regarding her daughter and stated that the last person Tena had been seen with was Peterman. Devin Gregory testified that three days prior to Tena's murder, he, Tena, and Peterman had broken into vending machines. Gregory went on to say that Peterman fled when police arrived, but law enforcement apprehended and questioned Gregory and Tena. Gregory testified that he told Peterman that Tena had given the police Peterman's name, implicating him as their accomplice.
¶10. Gregory further testified that the last time he saw Tena was on the day she was murdered—September 18, 2015. Along with Gregory, witnesses Kari Parker and Aaron Bobinger testified that Peterman had murdered Tena. Collectively, they testified that Peterman duct-taped Tena to a chair, severely beat her, slit her throat, and then hung her by her feet to die. They then placed her body in a box. To dispose of Tena's body, Peterman called Natasha Sellers, who testified that she drove them to a wooded area. On the way, they stopped to purchase lighter fluid. At their destination, Peterman and Bobinger unloaded the box and burned Tena's body in a barrel. The next day, Peterman threw Tena's skull and remains into the Biloxi River.
¶11. During their investigation, law enforcement retrieved the skull, and a forensic analysis was performed. Experts testified that DNA from the teeth in the skull was compared to a sample of DNA taken from Tena's mother. The results showed that the DNA from the skull matched that of Tena's mother.
¶12. Peterman did not testify or call any witnesses on his behalf. The jury found Peterman guilty of first-degree murder, and the court sentenced him to serve life in prison without eligibility for parole as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015).
¶13. Peterman's attorney subsequently filed a motion for a new trial or, alternatively, a JNOV. In that motion, among other things, he argued that the court erred in denying his motion to dismiss counsel and to re-appoint new counsel. The court denied Peterman's motion. Peterman timely8 appealed his conviction. His state-provided appellate attorney filed a brief raising one issue: whether Peterman's motion for new counsel should have been granted. Peterman, himself, filed a pro se document raising other issues.
STANDARD OF REVIEW
¶14. The Mississippi Supreme Court has held that a "trial court has discretion in considering a motion of an attorney to be discharged." Rubenstein v. State , 941 So. 2d 735, 783 (¶215) (Miss. 2006) (quoting Taylor v. State , 435 So. 2d 701, 703 (Miss. 1983) ). Thus, we review the ruling of the trial court for an abuse of discretion. Rinehart v. State , 883 So. 2d 573, 576 (¶9) (Miss. 2004). "When questions of law are raised, however, this Court employs a de novo standard of review." Lofton v. State , 233 So. 3d 907, 908 (¶4) (Miss. Ct. App. 2017).
DISCUSSION
I. Peterman's Motion to Dismiss Counsel and Re-appoint New Counsel
¶15. Although Peterman raised five substantive issues in his post-trial motion, the only issue raised on appeal by his state-provided appellate counsel is whether the trial court's denial of Peterman's motion to dismiss counsel and re-appoint new counsel forced Peterman to proceed to trial without adequate representation and therefore denied him his fundamental right to a fair trial.9 We do not find that the trial court abused its discretion in denying Peterman's motion to dismiss counsel and re-appoint new counsel.
¶16. Again, a trial court has discretion to consider a motion to discharge counsel, and in such instances, a defendant must show good cause for the court to substitute counsel. Taylor , 435 So. 2d at 703. In Taylor , the trial court appointed Attorney Robert Taylor10 to represent the defendant, Johnnie William Taylor, who was subsequently tried and convicted of aggravated assault. Id at 702. Taylor's lawyer continued to represent him on appeal. Id. The supreme court reversed and ordered a new trial. Id. A month and four days prior to the new trial, Attorney Taylor filed a motion for leave to withdraw as counsel. Id. He also filed an amended motion on the day of...
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