Henderson v. State

769 So. 2d 210, 2000 WL 1054064
Court of Appeals of Mississippi·Decided August 1, 2000·No. 1999-CA-00602-COA·Published·Cited by 13 cases

Opinion

769 So.2d 210 (2000)

Elbert F. HENDERSON a/k/a Elbert Fitzgerald Henderson, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-CA-00602-COA.

Court of Appeals of Mississippi.

August 1, 2000.
Rehearing Denied October 17, 2000.

*211 Sorie S. Tarawally, Jackson, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

McMILLIN, C.J., for the Court:

¶ 1. This is an appeal from the trial court's decision, after an evidentiary hearing, to deny Elbert Henderson any relief on his post-conviction relief motion filed after he had pled guilty to, and been sentenced on, five separate counts of burglary of a dwelling. Henderson presents five issues for this Court's consideration. This Court, finding itself unpersuaded by Henderson's arguments, affirms the trial court's decision.

I.

Facts

¶ 2. Henderson was originally indicted by a grand jury of the Circuit Court of *212 Warren County in six separate indictments charging a total of ten felonies. As a part of a plea agreement with the prosecution, one of the indictments was dismissed. The remaining nine charges grew out of five separate incidents ranging in date from November 27, 1994, through August 28, 1995. The charges included three counts of burglary of an inhabited dwelling while armed with a deadly weapon and two of burglary of an inhabited dwelling. In four of the five indictments, Henderson was charged in a second count with the underlying felony alleged to have been the motivation for his breaking and entering. Two charged him with attempted rape, one charged him with rape, and the fourth charged him with capital rape.

¶ 3. In November 1995, Henderson entered a guilty plea to the burglary charges contained in the five indictments, and the charges relating to the underlying crimes were dismissed. In exchange for the guilty pleas, the State recommended to the trial court that Henderson be sentenced to fifteen years on each count, with the sentences to run consecutively. The trial court, after a lengthy inquiry in which it explored in some depth Henderson's understanding of the consequences of his plea, accepted the guilty pleas and sentenced Henderson in accordance with the State's recommendation.

II.

The Issues Presented on Appeal

¶ 4. Henderson's post-conviction relief motion claims that (a) his attorney's performance was so ineffective as to have deprived him of his constitutional right of assistance of counsel guaranteed him by the Sixth Amendment; (b) the prosecution abused its discretion in recommending the maximum sentence for an offender with no prior felony convictions; (c) the trial court acted improperly in sentencing him to the maximum on each count with the sentences to run consecutively; (d) the resulting sentence of seventy-five years for a defendant with no prior felony convictions was so harsh as to constitute the kind of cruel and unusual punishment prohibited by the Eighth Amendment; and (e) the trial court erred in permitting Henderson's former attorney who represented him through the guilty plea proceedings to testify for the state at the post-conviction relief motion hearing over Henderson's invocation of the attorney-client privilege. We will consider the issues in the same order presented by Henderson in his brief.

III.

The First Issue: Ineffective Assistance of Counsel

¶ 5. Henderson argues that his attorney did not thoroughly research the facts of his case since, had he done so, he would have discovered that Henderson was out of the state living with his sister in Illinois when two of the burglaries occurred. According to Henderson, had his attorney been more diligent, he would also have learned that another individual was picked out of a lineup as the culprit by one burglary victim. Henderson also seemed to indicate at the hearing on his post-conviction relief motion that scientific testing of a rape kit obtained after one of the crimes might have exonerated him had his attorney investigated the results.

¶ 6. To counter these allegations by Henderson, the State called Henderson's attorney who represented him through the guilty plea and sentencing. This attorney testified that he thoroughly discussed the various charges with Henderson, including the dates the crimes were alleged to have occurred. This attorney said he discussed with Henderson the possibility of an alibi defense to one or more of the crimes, but that at no time did Henderson suggest that he was out of the state at any critical time mentioned in any of the indictments. No evidence was presented at the hearing, other than Henderson's own assertions, that some other individual had been identified as the perpetrator in one of the incidents.

*213 ¶ 7. There is a presumption that an attorney representing a defendant in a criminal proceeding performed at a level of competency sufficient to satisfy the constitutional safeguards set up in the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to overcome that presumption, the complaining party must show two things: (1) counsel's performance was deficient and (2) that, but for the deficient performance, a different outcome in the proceeding would have been likely. Id.

¶ 8. When the evidence on a critical point is in conflict, the trial court sits as finder of fact in a post-conviction relief proceeding. Merritt v. State, 517 So.2d 517, 520 (Miss.1987). In this case, Henderson claims that he had a readily-available alibi defense to two of the charges that his attorney would have discovered through a reasonably competent investigation. Henderson's attorney at the time, however, relates that he had in-depth discussions with Henderson as to each of the charges, including the dates the incidents allegedly occurred and whether there was the possibility of alibi defenses. According to the attorney, Henderson gave no indication that potential alibis might exist. It is difficult to envision how an attorney in such a situation would be expected to discover the existence of possible alibi defenses when the client himself made no mention of such matters, even in the face of discussion directly relating to the issue. We cannot discover on these facts a lack of diligence on the part of Henderson's counsel. Additionally, we find Henderson's relative's one-line statement supposedly establishing his alibi defense to be somewhat less than satisfactory. In its entirety, the writing reads, "Albert (sic) Henderson lived in my home for several years, including July 15 through August 9, 1995." Even if accepted as true, this statement does almost nothing to establish an alibi defense to a criminal charge based on an incident occurring on some specific date during the indicated period. Therefore, we conclude that Henderson's claim also fails to meet the second prong of the Strickland test, since the evidence he presented that he now claims his attorney failed to unearth and utilize in his defense would not, in our view, have had any real probability of producing a different outcome.

¶ 9. Henderson's sketchy allegations regarding the likelihood that another suspect was the guilty party in one of the incidents falls far short of meeting the second prong of the Strickland te

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