Robinson v. State
| Decision Date | 28 August 1991 |
| Docket Number | No. 90-KP-0352,90-KP-0352 |
| Citation | 585 So.2d 735 |
| Parties | Sammy Lee ROBINSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Sammy Lee Robinson, pro se.
Mike C. Moore, Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and BANKS and McRAE, JJ.
I.
Sammy Lee Robinson was convicted in the Circuit Court of Sunflower County, Mississippi, for the sale of cocaine. He was sentenced to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections, six (6) years suspended, and ordered to pay $100.00 to cover the cost of drug analysis and $123.50 to cover the costs of court. He appeals to this court assigning two errors:
I. He was denied a preliminary hearing in violation of Rules 1.04 and 1.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice; and
II. He was denied effective assistance of counsel because of counsel's failure to object to the introduction of evidence of another crime in violation of Rules 403 and 404 of the Mississippi Rules of Evidence and failure to request a preliminary hearing.
II.
We have reviewed the record in this case and find as to the first issue that there is no showing that Robinson ever requested a preliminary hearing prior to trial. Thus this claim has been waived. See Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988) (). 1
As to the second issue, the record shows that counsel never objected at trial to the introduction of evidence of another crime. Consequently, these claims have been waived for failure to present them first to the trial court for decision. 2
Viewing these shortcomings in the context of Robinson's ineffective assistance of counsel claim requires that we consider whether they amount to deficient performance on the part of trial counsel, and, if so, whether there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Cabello v. State, 524 So.2d 313, 315 (Miss.1988), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 86 L.Ed.2d 674 (1984).
We have considered this claim using the appropriate test, and find that trial counsel's shortcomings, while appearing on their surface to support a finding of deficient performance, do not rise to the level necessary to support a finding of constitutionally ineffective assistance of counsel. Counsel enjoys a "strong presumption" of competence, and we cannot say to a degree of reasonable probability that the proceeding below would have turned out differently had Robinson's trial counsel performed otherwise.
III.
Accordingly, it is the opinion of this Court, based on a careful review of the record, that there are no reversible errors. Therefore, the conviction and sentence of Sammy Lee Robinson for the sale of cocaine is affirmed.
CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SIX (6) YEARS SUSPENDED AFFIRMED.
McRAE, J., specially concurs, joined by ROY NOBLE LEE, C.J., HAWKINS, P.J., and PITTMAN, J.
I concur in affirming, but rather than not applying Avery v. State, 555 So.2d 1039 (Miss.1990), I would overrule that decision.
I concur with the majority opinion; however, I would go forward and say that Avery v. State, 555 So.2d 1039 (Miss.1990) (Blass, J.), should be overruled. A review of the Mississippi Uniform Criminal Rules of Circuit Court Rule 1.04 and Rule 1.07 clearly indicates that those rules are to be applied when there has not been an indictment on a charge. Rule 1.04 states:
The preliminary hearing shall be heard on the set date, unless it is waived in writing or in open court and upon the advice of counsel. If preliminary hearing is waived by the defendant, the judicial officer shall bind the defendant over to the next grand jury.
Rule 1.07 states:
If from the evidence it appears that there is probable cause to believe that an offense has been committed, and that the defendant committed it, the judicial officer shall bind the defendant over to the next grand jury.
A preliminary hearing is given to a person accused of a crime, by a magistrate or a judge, to ascertain whether there is evidence to warrant and require the commitment and holding to bail of a person accused of a crime. It is in no sense a trial for the determination of accused's guilt or innocence, but simply a course of procedure whereby a possible abuse of power may be prevented, and the accused discharged or held to answer, as the facts warrant. Both of these rules refer to a defendant being arrested and provide that a preliminary hearing be held to determine if there is sufficient evidence to bind the defendant over to a grand jury for...
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