Dunigan v. State

915 So. 2d 1063, 2005 WL 1021569
CourtCourt of Appeals of Mississippi
DecidedMay 3, 2005
Docket2003-KP-01934-COA
StatusPublished
Cited by4 cases

This text of 915 So. 2d 1063 (Dunigan 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
Dunigan v. State, 915 So. 2d 1063, 2005 WL 1021569 (Mich. Ct. App. 2005).

Opinion

915 So.2d 1063 (2005)

Jamison Casey DUNIGAN, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KP-01934-COA.

Court of Appeals of Mississippi.

May 3, 2005.
Rehearing Denied September 20, 2005.
Certiorari Denied December 8, 2005.

*1066 Jamison Casey Dunigan, Appellant, pro se.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before BRIDGES, P.J., IRVING and MYERS, JJ.

IRVING, J., for the Court.

¶ 1. A Franklin County jury found Jamison Casey Dunigan guilty of theft of anhydrous ammonia while in the possession of a firearm. For this crime, Dunigan was sentenced to ten years in custody of the Mississippi Department of Corrections. Aggrieved Dunigan now appeals asserting the following issues: (1) the Appellant was denied his Sixth Amendment right to effective assistance of counsel, (2) the trial court erred in refusing defendant's motions for directed verdict, judgment notwithstanding the verdict or, in the alternative, a new trial, (3) the trial court committed reversible error in allowing prosecutorial misconduct, (4) the trial court erred in failing to swear in the jury properly, (5) the trial court erred in allowing a State's witness to testify in rebuttal, (6) the trial judge's sentence was the result of bias, prejudice or other arbitrary factors, and (8) the verdict should be reversed for cumulative errors.

¶ 2. We find no reversible error; therefore, we affirm the judgment of the trial court.

FACTS

¶ 3. On October 15, 2002, the Franklin County Sheriff's Department was called because someone had observed a stranger on Gene Seal's farm which is located one mile west of Meadville on Highway 84. Deputy Rodney Foster was sent to investigate. When Foster arrived at the farm, he observed an orange water cooler beside the anhydrous ammonia tank with a hose leading from the tank to the cooler. Foster also noticed vapor coming out of the cooler. When Foster looked inside of the cooler, he observed anhydrous ammonia about three-quarters of an inch to an inch in depth. Foster realized that a theft was in progress, so he shut off the valve to the tank and called other deputies to join him.

¶ 4. Foster then noticed a blue pickup truck approaching. Stephanie Uriegas was driving the truck, and Ciara Ray was on the passenger side. While talking to Uriegas, Foster noticed that the bed of the truck contained a five gallon propane tank, pipes of assorted sizes and lengths, and tools. Foster became suspicious when he saw the items in the back of the truck because such items are used to steal anhydrous ammonia. Foster's suspicions were further aroused when Uriegas told him that she was from Natchez, despite the fact that the truck had a Warren County license plate. Foster then asked the women to get out of the truck. At this time, Uriegas seemed nervous. Uriegas then told Foster that she had dropped off Dunigan in the area.

¶ 5. Uriegas testified that at approximately 6:00 p.m., she, Ray, and Dunigan went to get a butane bottle from Robby Cain in Cloverdale, Mississippi. They were traveling in a 1996 model, extended cab blue pickup truck. Two water coolers were in the bed of the truck. At some point after they picked up the butane bottle, *1067 Dungian told Uriegas, who was driving the truck, to let him out. Dunigan got out of the truck, taking a rifle and one of the water coolers. Dunigan then told Uriegas to find him in twenty minutes. Uriegas did as Dunigan instructed. However, while going back to the place where she had dropped off Dunigan, Uriegas was stopped by Deputy Foster. Uriegas then told Foster where she had dropped Dunigan off. Based on this information, a search for Dunigan began.

¶ 6. Dunigan was not found in the area but was found two days later in Concordia Parish, Louisiana where he was arrested. Dunigan was taken to the Franklin County jail. The police took statements from two inmates at the Franklin County jail. At trial Marie Fleming, one of the inmates from whom a statement was taken, testified that she heard Dungian ask Ureigas if Ureigas intended to testify against him. Walczak, the other inmate, testified that he was incarcerated with Dunigan and that Dunigan confessed to him and other inmates that he was trying to get the anhydrous ammonia to make some crystal meth. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Ineffective assistance of counsel

¶ 7. Dunigan asserts that his trial counsel rendered ineffective and deficient service because trial counsel (1) failed to perform any pre-trial investigation or interview potential witnesses, (2) failed to file any pre-trial motions, specifically a motion for a reduction of bond, a motion to suppress evidence, and a discovery motion, (3) failed to conduct an effective voir dire, (4) failed to make necessary objections, thereby preserving error, (5) failed to suppress evidence and/or testimony, (6) failed to conduct an effective cross-examination, (7) failed to object to sentencing without a pre-sentencing investigation being performed, and (8) failed to object to the trial court's consideration of inadmissible evidence. Dunigan also asserts that his trial counsel allowed false information to be considered at Dunigan's sentencing.

¶ 8. To make a successful claim of ineffective assistance of counsel, the defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland explains the test as follows:

First the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced his defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.

Id. at 687, 104 S.Ct. 2052. The Strickland court further held that "[t]he constitution does not guarantee a right to errorless counsel" and declared:

[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, 350 U.S. [91], at 101, 76 S.Ct. [158], at 164[, 100 L.Ed. 83 (1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

466 U.S. at 689-90, 104 S.Ct. 2052.

¶ 9. In the case at bar, Dunigan must overcome the strong presumption that his *1068 trial counsel's decisions were a result of sound trial strategy and fall within a reasonable range of acceptable conduct. While Dunigan's trial counsel's performance might have been less than perfect and lacking in some respects, we find nothing in the record that proves that Dunigan's trial counsel's performance was not in the "wide range of reasonable professional assistance." Although Dunigan makes several allegations regarding his trial counsel's ineffectiveness, the record is insufficient for us to determine the merits of some of his allegations.

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Bluebook (online)
915 So. 2d 1063, 2005 WL 1021569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunigan-v-state-missctapp-2005.