Davis v. State

811 So. 2d 346, 2001 WL 97240
CourtCourt of Appeals of Mississippi
DecidedFebruary 6, 2001
Docket1999-KA-00966-COA
StatusPublished
Cited by7 cases

This text of 811 So. 2d 346 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 811 So. 2d 346, 2001 WL 97240 (Mich. Ct. App. 2001).

Opinion

811 So.2d 346 (2001)

Michael DAVIS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00966-COA.

Court of Appeals of Mississippi.

February 6, 2001.

*348 Gail P. Thompson, Oxford, Attorneys for Appellant.

*349 Office of the Attorney General By Jeffrey A. Klingfuss, Attorneys for Appellee.

Before SOUTHWICK, P.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Michael Davis was found guilty of auto theft and sentenced as an habitual offender to six years in the Mississippi Department of Corrections without the possibility of parole, probation, suspension or reduction. On appeal, Davis asserts the following errors:

I. DID THE LOWER COURT ERR IN INFORMING DAVIS OF HIS RIGHT TO REPRESENT HIMSELF, AND DID DAVIS' TRIAL COUNSEL PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL?
II. DID THE TRIAL COURT ASK AN IMPROPER QUESTION OF DEBRA DAVIS, A WITNESS FOR THE DEFENSE?
III. WAS THE VERDICT OF THE LOWER COURT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

FACTS

¶ 2. Michael Davis conspired to steal and strip a car of it's tires. Davis acted as a look-out while his accomplice, Melvin Hubbard, stole the car. A witness, Susan McCracken, saw the car being stolen and a look-out car that followed. Both Hubbard and McCracken testified that Davis was the individual involved in the crime. Davis was convicted and sentenced as a habitual offender to six years in the Mississippi Department of Corrections without the possibility of parole, probation, suspension or reduction.

ANALYSIS

I. DID THE LOWER COURT ERR IN INFORMING DAVIS OF HIS RIGHT TO REPRESENT HIMSELF, AND DID DAVIS' TRIAL COUNSEL PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 3. Before the venire panel had been voir dired by the trial court, Davis, his appointed attorney, Thomas Pearson, Dan Hinchcliff and the trial judge met in chambers. Davis explained that he did not feel that Pearson had spent enough time with him in order to effectively represent him; and, therefore, wished to represent himself. The court advised Davis that Pearson was capable counsel and warned Davis of the dangers of self-representation. The court pointed out that Davis had successfully delayed the trial five times by continuance and that on the sixth setting a mistrial had to be declared due to improprieties on the part of Davis' wife. The court reminded Davis that he was granted a continuance six months earlier due to the fact that Davis was not satisfied with Pearson as counsel. The court told Davis at that time that he was entitled to hire someone other than Pearson as counsel, advising against Davis representing himself. However, Davis failed to hire another attorney and continued to be represented by Mr. Pearson at the time of the trial.

¶ 4. Mr. Pearson conducted the voir dire for the defense and stated that the defense had no questions for the first witness. After the State questioned their second witness, the court asked Davis if he wished to represent himself or allow Pearson to continue. Davis stated that he wanted "to ask her questions" himself. The court instructed Pearson to remain and provide assistance to Davis as he represented himself. Davis went on to question the witnesses *350 and make a closing statement. The record reflects that Pearson questioned one witness, that witness being Davis, and made objections throughout the trial. Both Davis and Pearson were allowed to make closing statements.

¶ 5. Davis now complains that the court failed in its duty to adequately inform him of his right to represent himself as well as the dangers thereof. Davis claims that he was incompetent to represent himself and, for that reason, allowed inadmissable hearsay evidence to be admitted.

¶ 6. "The Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Scott v. Illinois, 440 U.S. 367, 374, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). "Absent a valid waiver of this right, `[i]f an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional.'" United States v. Haymer, 995 F.2d 550, 552 (5th. Cir. 1993); United States v. Eckford, 910 F.2d 216, 218 (5th Cir.1990); United States v. Follin, 979 F.2d 369, 376 (5th Cir.1992). A waiver of the right to assistance of counsel may occur at any time, before or during the trial, but it must be made with a full understanding of its disadvantages and consequences. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), the United States Supreme Court stated:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused whose life or liberty is at stake is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

Id.

¶ 7. Nevertheless, an accused has a constitutional right to represent himself and to present his own case pro se without an attorney. In Gray v. State, 351 So.2d 1342 (Miss.1977), appeal after remand, 375 So.2d 994 (Miss.1979), this Court set out the following:

Mississippi Constitution Article 3, section 26 (1890) provides in part:
"In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, ..."
The refusal to permit defendant to argue his case is in direct violation of the above constitutional provisions and requires reversal.

Id. at 1345. See also Ballard v. State, 366 So.2d 668 (Miss.1979). "The motion of an indigent prisoner requesting the court to dismiss his court-appointed attorney is addressed to the sound discretion of the trial judge." Burnett v. State, 285 So.2d 783, 783 (Miss.1973). A defendant is not entitled to a continuance in order to raise funds with which to employ an attorney. Burnett, 285 So.2d at 784.

¶ 8. The record reflects that the trial judge adequately informed Davis of his constitutional right to represent himself as well as the dangers and responsibilities of self-representation. Davis made an intelligent and competent waiver of assigned counsel. Furthermore, Davis had been granted a continuance in order to find new counsel six months prior to the trial.

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Bluebook (online)
811 So. 2d 346, 2001 WL 97240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-missctapp-2001.