Turner v. State
| Decision Date | 07 June 2001 |
| Docket Number | No. 1999-KA-00411-SCT.,1999-KA-00411-SCT. |
| Citation | 818 So.2d 1186 |
| Court | Mississippi Supreme Court |
| Parties | Kelvin TURNER v. STATE of Mississippi. |
Edmund J. Phillips, Jr., Attorney for Appellant.
Office of the Attorney General by Scott Stuart, Attorneys for Appellee.
EN BANC.
COBB, J., for the court:
¶ 1. Kelvin Turner comes before this Court appealing the decision of a Scott County Circuit Court jury which found him guilty of aggravated assault upon a law enforcement officer. The trial judge sentenced Turner to serve thirty years without parole as a habitual criminal. Turner timely filed a notice of appeal and on December 28, 1999, his court appointed counsel filed a Killingsworth brief1 with this Court. On June 13, 2000, Turner filed a pro se supplemental brief. No reply brief or any further response was filed by Turner's counsel. Turner's pro se brief raises the following issue:
WHETHER THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO SUPPORT TURNER'S CONVICTION BECAUSE TURNER NEVER POINTED HIS WEAPON AT THE OFFICER, THE OFFICER SUFFERED NO BODILY HARM AND TURNER NEVER EVEN ATTEMPTED TO CAUSE THE OFFICER BODILY HARM?
¶ 2. Because the Killingsworth procedure followed by Turner's counsel did not afford Turner adequate and effective appellate advocacy, we direct that the briefing schedule should be reopened for additional briefing consistent with this opinion.
FACTS
¶ 3. While on duty as a uniformed patrol officer for the Forest Police Department, Jimmy Dean saw a pickup truck parked in the driveway of a vacant lot. Dean shined his lights into the truck and saw two males sitting inside. One of them got out of the truck, began walking toward the patrol car, explaining why he was parked in the driveway of the vacant lot. The other man, later identified as Kelvin Turner, was asked by Officer Dean if he would talk to him. Turner then ran because he was a convicted felon and was in possession of a pistol. As Officer Dean ran in pursuit, Turner stumbled and fell to the ground with his hands underneath him. When Dean told Turner to put his hands out where he could see them, Turner continued to hold them beneath his body where Dean could not see them. As Dean attempted to pull Turner's left arm out from underneath his body, Turner rolled over and put his gun to Dean's forehead. Dean backed off, Turner pulled the trigger but the gun merely clicked and did not fire. ¶ 4. Officer Dean called for backup, then pursued Turner, who ran back to where the truck was parked. By that time a second officer, Thompson, arrived, and Dean and Turner began to struggle again. Officer Dean subdued Turner with mace, and the officers then arrested him.
¶ 5. The testimony of the witnesses at trial was in direct conflict regarding whether Turner ever pointed his pistol at Dean's head and pulled the trigger. Officer Dean testified that he did, but Turner testified that he threw the gun away during the chase because he did not want to be caught with the gun and also because he was about to fall and did not want to fall on the gun. Turner denied ever pointing the gun at Dean and denied ever pulling the trigger. Turner was found guilty by the jury in the Scott County Circuit Court. The State called only two witnesses, Officer Dean and the Forest police chief. Turner was the only witness for the defense. The trial judge sentenced Turner to serve thirty (30) years without parole as a habitual criminal for the crime of aggravated assault upon a law enforcement officer. Taking exception with the proceedings below, Turner now appeals to this Court.
DISCUSSION
WHETHER THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO SUPPORT TURNER'S CONVICTION BECAUSE TURNER NEVER POINTED HIS WEAPON AT THE OFFICER, THE OFFICER SUFFERED NO BODILY HARM AND TURNER NEVER EVEN ATTEMPTED TO CAUSE THE OFFICER BODILY HARM?
¶ 6. Turner's court-appointed counsel for appeal believed the appeal to be without merit and followed the Killingsworth procedure approved by this Court in 1986 for use when counsel believes an appeal to be frivolous:
Where counsel regards the appeal without merit and deems it his obligation to so state to the Court, the full protection of the rights of the accused requires that he receive a copy of the representation counsel has made to the Court and be furnished a reasonable opportunity to file his own comments and raise any additional points that he chooses.
Killingsworth v. State, 490 So.2d 849, 851 (Miss.1986).
¶ 7. The legal argument portion of the brief filed by Turner's counsel contained only three sentences, stating The final sentence was counsel's certification that he mailed a copy to Turner, and he requested the Court to allow Turner 25 days to file such comments or raise points as he desired. Turner subsequently filed his pro se Supplemental Brief for Appellant, stating the single issue set forth above.
¶ 8. The State has requested this Court find this appeal to be frivolous. In the alternative, the State requested that if this In the event an issue is determined to be nonfrivolous, the State requested this Court "set a briefing schedule directing counsel for the defendant to brief said issue or issues, and allow a reasonable time for the state to respond."
¶ 9. The Fifth Circuit strongly criticized the Killingsworth procedure recently in Hughes v. Booker, 220 F.3d 346 (5th Cir. 2000). Simeon Hughes was convicted of armed robbery and sentenced to thirty-four years in the custody of the Mississippi Department of Corrections. Id. at 348. Hughes's appointed counsel filed a Killingsworth brief, and Hughes failed to file a supplemental brief. Id. The Mississippi Court of Appeals affirmed the conviction and sentence, stating:
[T]his Court will not assume the burden of briefing any issue which the Appellant, aided by counsel, cannot find or claim as error. The brief filed on behalf of Hughes contains neither argument nor support authorities. Accordingly, Hughes cannot overcome the presumption of correctness accorded to the trial court's judgment.
Id. at 352. Following the affirmance of his conviction by the Mississippi Court of Appeals, Hughes unsuccessfully filed for post-conviction relief in state court.
¶ 10. Hughes then filed a petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254, alleging ineffective assistance of counsel. The district court announced that it would grant the petition unless the State agreed to grant Hughes an out-of-time direct appeal with the assistance of competent counsel. Id. at 348. The State refused to do so, the district court granted the petition, and the State appealed. Id. The Fifth Circuit affirmed and found that "the Killingsworth procedure fails to erect sufficient safeguards to protect a defendant's right to appellate counsel." Id. at 352.
¶ 11. The Fifth Circuit's analysis of Hughes's claim contained an excellent review of the various procedures found by the U.S. Supreme Court to safeguard a defendant's right to counsel when the current counsel feels the appeal is frivolous. See Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)
; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); McCoy v. Ct. of Appeals, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1073 (1979). After considering the merits of the various procedures approved by the United States Supreme Court and the instructive language of Hughes, this Court today adopts the following procedures to be utilized in situations heretofore controlled by Killingsworth. The appellate counsel must:
At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases.
¶ 12. Killingsworth is overruled with regard to the procedure to be followed by counsel who regards his client's appeal to be without merit.
CONCLUSION
¶ 13. The Killingsworth procedure did not afford Turner adequate and effective appellate advocacy. Having adopted a procedure to more effectively safeguard the rights of appellants such as Turner, this Court directs that the briefing schedule in this appeal be reopened for additional briefing consistent with this opinion. The Clerk of this Court shall notify the parties of the new briefing schedule. See M.R.A.P. 31.
¶ 14. BRIEFING SCHEDULE REOPENED.
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