Carter v. State

941 So. 2d 846, 2006 WL 1229584
Court of Appeals of Mississippi·Decided May 9, 2006·No. 2004-KA-01361-COA·Published·Cited by 5 cases

Opinion

941 So.2d 846 (2006)

Kenneth Dewayne CARTER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-01361-COA.

Court of Appeals of Mississippi.

May 9, 2006.
Rehearing Denied August 15, 2006.
Certiorari Denied November 2, 2006.

*848 Kenneth Dewayne Carter, Appellant, pro se.

Thomas Perry Setser, attorney for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before LEE, P.J., GRIFFIS and ROBERTS, JJ.

LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. On May 6, 2003, Kenneth Dewayne Carter was indicted by the grand jury of Warren County for armed robbery, carrying a concealed weapon as a convicted felon, simple assault on a law enforcement officer and escape from confinement. On June 3, 2003, Carter sought a psychiatric evaluation; however, the court denied the motion the next day.

¶ 2. On the first day of trial, Carter indicated to the court that he desired to represent himself. The court conducted a hearing in chambers regarding Carter's competency and found that Carter was, indeed, competent. The court instructed Carter's appointed counsel, Josie Hudson, to assist Carter in the event Carter requested assistance.

¶ 3. At the close of the State's case, Carter moved for a directed verdict on all counts. The court granted the directed verdict on the charge of escaping while in police custody but denied the motion regarding *849 the other charges. The jury returned a not guilty verdict on the simple assault charge, but convicted Carter of armed robbery and carrying a concealed weapon as a convicted felon. Carter was sentenced to serve two concurrent life sentences in the custody of the Mississippi Department of Corrections.

¶ 4. It is from this conviction that Carter appeals, with Thomas Setser as appointed appellate counsel. In conformity with our supreme court's recent ruling in Lindsey v. State, 939 So.2d 743 (Miss.2005), Setser filed a brief stating that he found no arguable issues supporting Carter's appeal. Setser further stated that he arrived at this conclusion after reviewing the record and examining the reasons and circumstances surrounding the arrest; any possible violation of Carter's right to counsel; the entire trial transcript including all exhibits, jury instructions and rulings of the trial court; possible prosecutorial misconduct; and the application of the law in sentencing Carter.

¶ 5. Carter filed a brief on his own behalf, arguing the following assignments of error: (1) that he received ineffective assistance of trial counsel; (2) that he was "unconstitutionally deprived of his qualified right to counsel of his choice;" (3) that he was denied a fair hearing on his objections to counsel; (4) that the court failed to elicit a proper waiver of counsel; (5) that the trial court improperly denied his motion for a continuance; and (6) that the State failed to prove the charge of possession of a firearm by a convicted felon.

¶ 6. Finding no merit to these issues, we affirm.

FACTS

¶ 7. On January 22, 2003, Carter walked into the Payless Shoe Store on Clay Street in Vicksburg, pulled out a gun, and demanded that Retha Clark, a store employee, remove the money from the register and place it in a box. Cynthia Batchelor was shopping in the store at the time and called the police on her cellular telephone. Linda Lewis was also working that day, and she helped Clark open the cash register. Once the register was opened, Lewis removed the drawer containing the cash and handed the drawer to Carter. Carter grabbed the money himself and concealed it in a shoe box. Edric Cooper also observed the robbery from across the street and called the police for assistance.

¶ 8. Before Carter could leave, Sergeants Adarryll Dent and William Combs arrived and entered the store, approaching Carter from behind. When Carter realized the police were in the store, he dropped his weapon and screamed, "Y'all got me, y'all got me!" The officers handcuffed Carter and instructed him to lie down on the floor. Carter remained on the floor for a moment, then he suddenly jumped to his feet and ran to the door. Sergeant Dent tackled Carter, and they fell into the store window. Carter kicked Sergeant Dent while the other officers attempted to subdue him. After a brief struggle, Carter was escorted to the police station. En route to the station, Carter again attempted to escape by kicking out the rear window frame of the squad car. Officer Dent, who was driving Carter, stopped the vehicle and called for backup. When backup arrived the officers restrained Carter's legs and transported him to the station.

I. WAS CARTER DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 9. For a defendant to prevail on a claim of ineffective assistance of counsel, he must prove (1) that his counsel's performance was deficient and (2) that he was prejudiced by the deficient performance. *850 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel is presumed competent. Woodward v. State, 843 So.2d 1, 7 (¶ 14) (Miss.2003). "In order to overcome this presumption, the appellant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Phinisee v. State, 864 So.2d 988, 990 (¶ 9) (Miss.Ct.App.2004). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 10. Carter argues that his trial counsel failed to investigate, failed to seek defense witnesses such as a psychiatrist, and failed to meet with him and otherwise prepare the case for trial. Carter points out that Hudson was appointed as counsel on April 21, 2003, he was indicted on May 6 and the trial was held on June 16. Carter argues that Hudson failed to acquire and review the store's security tape, which could possibly show a different scenario from that presented by the witnesses at trial. Carter finally argues that Hudson had a conflict of interest which prevented her from zealously and effectively representing him. The State argues that Carter has failed to show any deficiency in Hudson's representation and that Carter has failed to show he suffered any prejudice from the alleged malfeasance.

¶ 11. Carter's complaints are conclusory, vague and unsupported by the record. Carter fails to indicate which witnesses Hudson neglected to interview and how such a failure prejudiced his defense. Likewise, Carter simply states that Hudson had a conflict of interest and offers nothing in support of his assertion. "[P]rejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Sharp v. State, 786 So.2d 372, 382 (¶ 24) (Miss. 2001) (quoting Smith v. State, 666 So.2d 810, 812-13 (Miss.1995)). Carter has failed to show Hudson's alleged conflict of interest, and he has failed to show any adverse effect on his lawyer's performance. As such, this argument is without merit.

¶ 12. Regarding counsel's failure to secure a psychiatric evaluation, defense counsel sought an evaluation, and the trial court de

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