Poindexter v. State

• Decision Date: 28 August 2003
• Docket Number: No. 2002-KA-00527-SCT.,2002-KA-00527-SCT.
• Citation: 856 So.2d 296
• Parties: Freddie POINDEXTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

856 So.2d 296

Freddie POINDEXTER v. STATE of Mississippi.

No. 2002-KA-00527-SCT.

Supreme Court of Mississippi.

August 28, 2003.

Rehearing Denied October 23, 2003.

Richard Burdine, Columbus, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorneys for appellee.

Before SMITH, P.J., WALLER and CARLSON, JJ.

WALLER, Justice, for the Court.

¶ 1. Freddie Poindexter appeals his conviction for murder less than capital and life sentence for the shooting death of Geneva Johnson. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 10:00 p.m. on March 2, 2000, Geneva Johnson and her sister-in-law, Sonya Johnson, exited a Columbus, Mississippi, bingo parlor headed for Geneva's Lincoln Town Car. As the two women walked out of the bingo parlor, Freddie Poindexter, Geneva's former boyfriend, emerged from behind a van parked next to Geneva's car. Poindexter asked for a ride, telling the women that his car was leaking oil. When the women got into the car, Geneva in the driver's seat and Sonya in the front passenger seat, Poindexter got in and sat in the back seat behind Geneva. Geneva drove for a while and then stopped and told Poindexter, "Okay. Freddie, we're here, you can get out now." Poindexter responded that he needed to talk to Geneva, and Geneva responded that she would call him. Poindexter again told Geneva he wanted to talk to her, and she again responded that she would call him. According to Sonya, Poindexter replied, "I don't want you to God damn call me tomorrow. I want to talk to you now." Geneva started rummaging through plastic shopping bags at which time Poindexter partially exited the vehicle and stood there for a couple of minutes. When Geneva then picked up a cell phone, Poindexter exited the vehicle completely and opened the front driver's side door. Geneva asked Poindexter, "Freddie, just tell me what it is you've got to say" to which Poindexter responded, "I don't like you laughing and talking about me behind my back[,] and I don't appreciate you going with what used to be an old friend of mine." Shortly after Geneva responded that she was not seeing Poindexter's "old friend," Poindexter fired two shots, both striking Geneva and killing her. Sonya witnessed everything that had transpired.

¶ 3. Geneva had left the engine in her car running and the transmission in drive during the entire exchange. After Poindexter fired the two shots into Geneva, the Lincoln shot forward across the street, hit a gate, clipped a sign, and finally stopped when it crashed into the American Trouser building across the street.¹

¶ 4. Poindexter turned himself in to the Columbus Police Department the next morning on March 3, 2000. He had in his possession a Taurus blue steel .357 Magnum revolver in a paper bag along with several loose rounds of ammunition. In the cylinder were four live rounds and two spent rounds.

¶ 5. Poindexter was placed in Sergeant Rick Jones's office. Jones stepped out of his office for a moment and when he returned he found Poindexter on the phone. Jones explained the conversation as follows:

Freddie [ ] was again, he was talking on the phone and as I stepped in I overheard him, [ ] say on the telephone that [ ] she had wasted seven years of his life and that [ ] she had made a fool out of him and that [ ] she had taken him for his money and she was running around telling everybody what she had done. Then there was a short pause and he said [ ] something to the effect that [ ] they'll probably give me one, and that was the end of the conversation.

Sergeant Neil Taylor was with Poindexter in Jones's office when Poindexter made the call and corroborated Jones's account of the conversation:

[W]hile he was on the phone, I'm not sure who he was on the phone with, but he made [ ] the comment that [ ] he had wasted seven years of his life on her; he didn't say who she was. He said [ ] he worked real hard for them to have the things that they had had, and [ ] that past Sunday I think he said that she had dumped him and that he had found out that she had dumped him for someone that was his friend.

¶ 6. After posting bond, Poindexter returned the same day to the Columbus Police Department to claim his car which had been impounded from the parking lot where it had been left on the night he shot Geneva. Contrary to what Poindexter had told Geneva and Sonya that his car was leaking oil, Poindexter started his car and drove it away.

¶ 7. Poindexter was indicted on May 8, 2000, charging him with the murder of Geneva Johnson. Trial commenced on August 28, 2000, whereat Poindexter testified on his own behalf. On direct examination, Poindexter testified, "I kept axing [sic] why she wouldn't—why she wouldn't come and hear what I had to say, and she mumbled something and I said, `Well at least you could give me that—that opportunity.' And she said something and I just—I snapped." When asked what he meant by "snapped," Poindexter responded, "The best of my knowledge, the only thing I remember my blood pressure went skraight [sic] up in my head and I—that was the last thing I remember."

¶ 8. After approximately one hour of deliberation, the jury returned a verdict of "guilty as charged" after which the judge sentenced Poindexter to life in prison.

¶ 9. The trial court allowed an out-of-time appeal, and his counsel Richard Burdine submitted a brief pursuant to Turner v. State, 818 So.2d 1186 (Miss.2001), and Killingsworth v. State, 490 So.2d 849 (Miss.1986), overruled by Turner, supra. Burdine's opinion is that Poindexter's appeal is without merit. He also informed Poindexter of his right to file a pro se supplemental brief on his own behalf.

¶ 10. Poindexter's pro se supplemental brief alleges the following assignments of error, reworded for clarity:

I. WHETHER POINDEXTER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

II. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY TESTIMONY OF OFFICER RICK JONES.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE HEARSAY TESTIMONY OF KATHY HUTCHINSON.

IV. WHETHER THE TRIAL COURT ERRED IN SENTENCING POINDEXTER TO LIFE IN PRISON WITHOUT PAROLE ON THE BASIS THAT SAID SENTENCE IS ILLEGAL.

V. WHETHER THE INDICTMENT WAS DEFECTIVE BECAUSE THERE WAS NO SUPPORTING AFFIDAVIT ATTACHED TO THE INDICTMENT.

VI. WHETHER THE TRIAL COURT ERRED BY NOT HAVING A PSYCHOLOGICAL EXAMINATION ADMINISTERED TO DETERMINE WHETHER POINDEXTER WAS COMPETENT TO STAND TRIAL.

VII. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY TO MAKE ITS DECISION BASED ON PHYSICAL EVIDENCE AND NOT TO BE CONCERNED WITH ANYTHING ELSE AND TO FOLLOW THE LAW AS GIVEN IN THE COURT'S INSTRUCTIONS.

VIII. WHETHER CUMULATIVE ERROR INFECTED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND MORE LIKELY THAN NOT CAUSED A SUSPECT VERDICT.

DISCUSSION

I. WHETHER POINDEXTER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

¶ 11. In support of his argument that Burdine was ineffective at trial and in this appeal, Poindexter asserts that counsel failed to cite any supporting authority in this appeal, failed to raise the issue of hearsay testimony, had a conflict of interest in that he was "very well acquainted" with the victim's family, failed to have a psychological examination performed on Poindexter and failed to confer with family to determine if he had any psychological problems, never asked Poindexter about his background, never presented evidence concerning Poindexter's character or his mental or emotional state of mind, should have presented a defense of insanity, failed to move for mistrial when the trial court supposedly refused to allow Poindexter to bring an insanity defense, and never filed motions or objected to the trial court's giving Poindexter an illegal sentence. Many of these issues are raised as separate assignments of error and will be discussed there. The remainder, inasmuch as they pertain to Poindexter's claim of ineffective assistance of counsel, will be addressed here.

¶ 12. The standard of review is well-settled:

The standard of review for a claim of ineffective assistance of counsel is a two-part test: the defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). This review is highly deferential to the attorney, with a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. Id. at 965. With respect to the overall performance of the attorney, "counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy" and cannot give rise to an ineffective assistance of counsel claim. Cole v. State, 666 So.2d 767, 777 (Miss.1995).

Anyone claiming ineffective assistance of counsel has the burden of proving, not only that counsel's performance was deficient but also that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, the defendant must show that there is a reasonable probability that, but for his attorney's errors, he would have received a different result in the trial court. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). Finally, the court must then determine whether counsel's performance was both deficient and prejudicial based upon the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988).

Jackson v. State, 815 So.2d 1196, 1201 (Miss.2002). See also Pruitt v. State, 807 So.2d 1236, 1239-40 (Miss.2002); Powell v. State, 806 So.2d 1069, 1076-77 (Miss.2001); Simmons v. State, 805 So.2d 452, 479 (Miss.2001); Sanders v. State, 801 So.2d 694, 702 (Miss.2001); Spry v. State, 796 So.2d 229, 232 (Miss.2001).

¶ 13. Of the remaining supposed instances of ineffective assistance, Poindexter's claim of counsel's conflict of...