Wynn v. State

• Decision Date: 04 September 2007
• Docket Number: No. 2006-KP-00776-COA.,2006-KP-00776-COA.
• Citation: 964 So.2d 1196
• Parties: Felix WYNN a/k/a Creep a/k/a Cadillac, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

964 So.2d 1196

Felix WYNN a/k/a Creep a/k/a Cadillac, Appellant v. STATE of Mississippi, Appellee.

No. 2006-KP-00776-COA.

Court of Appeals of Mississippi.

September 4, 2007.

Felix Wynn, Appellant, pro se.

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

Before MYERS, P.J., ISHEE and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. On April 25, 2006, Felix Wynn was convicted as an habitual offender by an Oktibbeha County Circuit Court jury on two counts of sale of cocaine. Wynn appeals his conviction and sentence pro se and asks this Court to consider whether he was denied the effective assistance of counsel; whether the circuit court erred in "overlooking" the defense of entrapment; whether the circuit court erred in denying his motion for judgment notwithstanding the verdict or new trial; whether the indictment charging him was defective; and whether he was denied his right to appeal. Finding no error, we affirm his sentence and conviction.

FACTS

¶ 2. Wynn was arrested and convicted as a result of two separate sales of crack cocaine to Charles Lamar Clinton, a confidential informant, who was working with the Starkville Police Department. On November 6, 2000, a pre-buy meeting was held between Clinton and Lieutenant Gerald Davis, an employee of the Starkville Police Department in charge of narcotics. At this meeting, the details of the proposed transaction were discussed and Wynn was determined to be the target. Lieutenant Davis searched Clinton's person and vehicle, wired Clinton for sound and video, and gave him one hundred dollars to be used for the purchase.

¶ 3. Clinton left the meeting at about 4:00 p.m. and proceeded to Wynn's home. Upon his arrival, Clinton went inside the home with Wynn and told him that he wanted to buy one hundred dollars worth of cocaine. Clinton testified that Wynn then reached inside his cabinet and took out a plastic baggy, opened it up, and handed him one hundred dollars worth of cocaine wrapped in a paper napkin. Clinton handed Wynn one hundred dollars and left the house to meet Lieutenant Davis at a pre-arranged location, where Clinton turned the cocaine over to Lieutenant Davis, who placed the drugs in an evidence bag. Lieutenant Davis then reviewed the video and noticed that the audio was lost and the video "was shooting a little low." The video recorded the transaction; however, it did not capture the face of the seller. The video did clearly depict the seller's mid-section as well as the clothing worn by the individual. Clinton identified Wynn as the seller. Nevertheless, Lieutenant Davis, unsatisfied with the quality of the video from the transaction, decided to make a second purchase from Wynn.

¶ 4. Lieutenant Davis gave Clinton another one hundred dollars and Clinton returned to Wynn's house for a second purchase around 5:00 p.m. Clinton again gave Wynn one hundred dollars in exchange for cocaine and then returned to the meeting place where he again turned the drugs over to Officer Davis. Officer Davis and Clinton reviewed the video of the second transaction. In viewing this video, they were able to clearly observe the clothing of the seller as well as his face. Both men identified Wynn as the seller.

¶ 5. Brandi Goodman, a forensic scientist employed with the Mississippi Crime Laboratory, later confirmed that the substance obtained in the first purchase contained cocaine with a total weight of 0.76 grams. Likewise, Jamie Johnson, another forensic scientist employed by the Mississippi Crime Laboratory, determined that the substance obtained in the second transaction contained cocaine with a weight of 0.56 grams.

¶ 6. On July 19, 2001, Wynn was indicted for two counts of sale of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev.2005).¹ Trial was held on April 25, 2006. The evidence against Wynn consisted of the video recording of both transactions and the testimony of Clinton, Lieutenant Davis, Goodman, and Johnson. Wynn did not testify, nor did he offer any other evidence. The record reflects that, at the close of the State's case-in-chief, Wynn was advised of his right to testify, whereafter, Wynn's attorney made the following statement to the court: "Your honor, my client and I have discussed. We will not be presenting any evidence. We will be resting." The jury returned a verdict of guilty on both counts of sale of cocaine. Wynn was then remanded to the custody of the sheriff to await sentencing.

¶ 7. On April 26, 2006, the State moved to amend the indictment to charge Wynn as an habitual offender under Mississippi Code Annotated section 99-19-81 (Rev 2000).² On the same day, a hearing was held, at which, the State's motion to amend the indictment was sustained, and Wynn was adjudicated as both an habitual offender within the meaning of Mississippi Code Annotated section 99-19-81 and a prior violator of the Mississippi Uniform Controlled Substances Law pursuant to Mississippi Code Annotated section 41-29-147.³ Wynn was then sentenced as an habitual offender to sixty years in the Mississippi Department of Corrections on each count, to run consecutively for a total of 120 years, with zero years suspended or reduced, without the possibility of parole or probation. On May 1, 2006, Wynn filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict, which was overruled by the circuit court.

DISCUSSION

1. Ineffective Assistance of Counsel

¶ 8. Wynn argues that he received ineffective assistance of counsel. He raises this issue for the first time on appeal. Specifically, Wynn claims that his attorney should have requested pretrial discovery, investigated the circumstances and laws surrounding the case, and interviewed potential witnesses. Wynn also suggests that his attorney's performance was ineffective because he received an enhanced sentence.

¶ 9. While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because "[w]e are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim." Wilcher v. State, 863 So.2d 776, 825(171) (Miss.2003) (citing Aguilar v. State, 847 So.2d 871, 878(17) (Miss.Ct.App.2002) (citation omitted)). Our supreme court instructs that, on direct appeal, the entire record should be reviewed. Read v. State, 430 So.2d 832, 841 (Miss.1983). This Court will reach the merits of an ineffective assistance claim only in instances where, "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Wilcher, 863 So.2d at 825(171) (citations omitted). Where the record is insufficient to support a claim of ineffective assistance, "[t]he appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Aguilar, 847 So.2d at 878(17) (citing Read, 430 So.2d at 837).

¶ 10. In the instant case, there is no stipulation made by the parties as to the record. Our review then is focused to determine whether the record affirmatively demonstrates that Wynn was denied the effective assistance of counsel. The relevant inquiry here is whether the representation of Wynn was "so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice." Ransom v. State, 919 So.2d 887, 889(9) (Miss.2005) (quoting Parham v. State, 229 So.2d 582, 583 (Miss. 1969)).

¶ 11. To prove a claim of ineffective assistance, a defendant must show (1) that his defense counsel's performance was deficient, and (2) that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 So.2d 1106, 1114(22) (Miss.1999). "The determination of whether counsel's performance was both deficient and prejudicial must be determined from the `totality of the circumstances.'" Cole v. State, 666 So.2d 767, 775 (Miss. 1995) (citation omitted). The defendant bears the burden of proving both prongs of Strickland and faces a rebuttable presumption "that trial counsel's conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic." Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss. 1985)). To rebut this presumption "the defendant must show that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 12. The record does not affirmatively show ineffectiveness of constitutional dimensions. Despite Wynn's claim to the contrary, the record reveals that a very thorough motion for pre-trial discovery was in fact made. Furthermore, Wynn fails to identify any witnesses who should have been interviewed or whose testimony would have strengthened his defense. Likewise, Wynn identifies no aspect of his attorney's performance that suggests a failure to investigate the circumstances and law surrounding his case. The record reflects that Wynn's attorney was prepared factually and legally, and cross-examined the State's witnesses thoroughly on all relevant issues. Beyond all this, the sentence Wynn received is in accord with the applicable statutes. Miss.Code Ann. § 99-19-81; Miss.Code Ann. § 41-29-147; Miss.Code Ann. § 41-29-139. Wynn has failed to meet his burden under Strickland.

¶ 13. In accordance with Read, 430 So.2d at 837, we deny relief on this issue without prejudice to Wynn's right to raise it in appropriate post-conviction proceedings.

2. Entrapment

¶ 14. Wynn argues that he was entrapped by the...