Liddell v. State

7 So. 3d 217, 2009 Miss. LEXIS 107, 2009 WL 564710
CourtMississippi Supreme Court
DecidedMarch 5, 2009
Docket2008-KA-00021-SCT
StatusPublished
Cited by48 cases

This text of 7 So. 3d 217 (Liddell v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liddell v. State, 7 So. 3d 217, 2009 Miss. LEXIS 107, 2009 WL 564710 (Mich. 2009).

Opinions

DICKINSON, Justice,

for the Court.

¶ 1. In this felony drug-sale case, the defendant claims she received ineffective assistance of counsel at trial. Because we find her trial counsel’s actions fell within the large ambit of “reasonable professional assistance,” we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. Mississippi Bureau of Narcotics Agent Luis Hawkins, Tunica Police Officer Chris Smith, and a confidential informant (“C.I.”) set up a drug buy at Brenda Lid-dell’s home. The officers equipped the C.I. with a camera and microphone and sent him to Liddell’s home to buy an ounce of cocaine. When he arrived, Liddell told him that she did not have any cocaine ready to sell, but to come back in a couple of hours. The C.I. returned to the post-buy location, where Hawkins and Smith instructed him to return to Liddell’s house and buy whatever she was selling.

¶ 3. The C.I. returned to Liddell’s house and asked her if she had any “footballs.” 1 Liddell responded that she did, and the C.I. bought the twenty-three dosage units that she had. Although the C.I. discussed the transaction with Liddell, Catherine “Doll” Bogan actually handed him the pills and took the money. The C.I. then asked Liddell when she would have some cocaine ready, and she responded “in about twenty or thirty minutes.” The C.I. left Liddell’s house with the Xanax and reported back to Hawkins and Smith.

¶ 4. While at the post-buy location, the C.I. received a call from Liddell telling him to “come on.” He returned to Liddell’s house to buy the cocaine. Liddell instruct[219]*219ed the C.I. to place the $800 on the counter, and to retrieve the cocaine from a glass bowl on the table. Liddell took the $800 from the counter and put it in the pocket of her bathrobe. The C.I. returned to the post-buy location and turned the cocaine over to Hawkins and Smith.

¶ 5. Liddell was indicted on two counts of “unlawfully, wilfully and feloniously and without authority of law selling, transferring or delivering” a controlled substance. Wilbert Johnson was appointed as her public defender. At trial, the State called Agent Hawkins as a witness. He testified that he recognized Liddell’s voice on an audio recording of the drug transaction. The jury acquitted Liddell of Count I — the sale of the Xanax — but found her guilty of Count II, the sale of cocaine. She was sentenced to ten years in prison, with five years suspended. Liddell filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the trial judge denied. She timely filed a notice of appeal. Her public defender subsequently was allowed to withdraw as counsel, and the Office of Indigent Appeals was substituted as counsel on appeal. Liddell argues on appeal that the trial court erred when it failed to sua sponte order a mistrial due to ineffective assistance of counsel.

ANALYSIS

¶ 6. The United States Supreme Court established the now-familiar standard for determining whether a defendant received ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. 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 the 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 reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. The Supreme Court also stated:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, 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.”

Id. at 689, 104 S.Ct. 2052. “In considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. [220]*220In other words, defense counsel is presumed competent.” Bennett v. State, 990 So.2d 155, 158 (Miss.2008).

¶ 7. Liddell argues that her trial attorney provided ineffective assistance of counsel in three instances: (1) when he allowed Agent Hawkins to testify that it was Lid-dell’s voice on the audio recording without proper authentication or predicate, and then provided the authentication himself on cross; (2) when he elicited on cross examination the C.I.’s many previous trips to Liddell’s house and neighborhood to purchase drugs; and (3) when he stipulated to “Doll” Bogan’s2 conviction.

Agent Hawkins’s Testimony

¶ 8. Liddell first argues that her attorney was deficient when he allowed Agent Hawkins to identify her voice on the audio recording of the drug transaction without proper predicate or authentication. Specifically, Liddell states that “[u]ntil the State laid the predicate that Hawkins was familiar with [her] voice, it was error to admit the testimony that [she] was speaking or that it was her voice on the recordings.” Additionally, Liddell argues that her attorney’s elicitation of the authentication on his cross-examination of Agent Hawkins was deficient. Her arguments fail for two reasons.

¶ 9. First, Agent Hawkins’s testimony that it was Liddell’s voice he heard on the recording is not subject to the authentication requirement of MRE 901. The State was not trying to admit the audiotape itself into evidence. Thus, no authentication of the tape itself was required. Accordingly, the failure to object to the authentication of Agent Hawkins’s testimony was not ineffective assistance of counsel. Additionally, the failure of Lid-dell’s attorney to require the State to “lay the predicate” for Agent Hawkins’s testimony is harmless error, as we are not left to guess whether Agent Hawkins had personal knowledge of Liddell’s voice, as he testified to that effect on cross-examination.

¶ 10. Liddell’s second argument regarding her attorney’s handling of Agent Hawkins’s testimony is inconsistent with her first argument.

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Cite This Page — Counsel Stack

Bluebook (online)
7 So. 3d 217, 2009 Miss. LEXIS 107, 2009 WL 564710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liddell-v-state-miss-2009.