Miller v. State

914 So. 2d 800, 2005 WL 2981485
Court of Appeals of Mississippi·Decided November 8, 2005·No. 2003-KA-01776-COA·Published·Cited by 2 cases

Opinion

914 So.2d 800 (2005)

Ricky MILLER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-01776-COA.

Court of Appeals of Mississippi.

November 8, 2005.

*801 Carrie A. Jourdan, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

EN BANC.

BARNES, J., for the Court.

¶ 1. On April 16, 2003, in Clay County, Mississippi, Ricky Miller stood trial and was convicted of armed robbery and burglary of an occupied hotel room. On appeal, Miller raises three assignments of error: ineffective assistance of counsel, denial of his right to a fair and impartial jury, and admission of certain evidence despite an alleged discovery violation by the State. Finding no error, we affirm Miller's conviction and sentence.

FACTS

¶ 2. At trial, Kevin Freeman testified that, on January 24, 2003, he rented a hotel room at the Southern Inn in order to "party." He admitted that he and his friends had been drinking and smoking marijuana until the early morning hours. Freeman testified that although he specifically recalled shutting and locking the hotel room door, he was subsequently awakened by two men, whom he identified as Miller and Richard Jefferson, standing over his bed.

¶ 3. Freeman stated that Miller questioned him about whether Freeman had called him a "snitch," suddenly produced a small caliber handgun, placed it to Freeman's head and ordered that he surrender his wallet. Freeman testified that an altercation then ensued, wherein both Miller and Jefferson repeatedly hit Freeman, and Miller hit Freeman near his eye with the handgun. Freeman stated that as he was attempting to escape and was yelling for help, an elderly man walked by the room; Miller and Jefferson then ran from the room and fled the scene in a gray Mercury Marquis.

¶ 4. Freeman admitted that he was unaware of what occurred in the room after he fell asleep and said it was possible that someone else in the hotel room had left the *802 door open. Under cross-examination, Freeman admitted that, in a statement given to the police on the night of the incident, he never said anything about Miller hitting him with a gun. Additionally, Freeman testified that he had sold drugs in the past.

¶ 5. The altercation and subsequent flight of Miller and Jefferson were confirmed by two State's witnesses, James McClora and Charles Davidson, although neither witness actually saw the events leading up the altercation. Davidson testified that he saw two of the parties scuffling; however, he was unable to testify as to any other specifics. The final State's witness was Chris Hammond, who had previously given a statement to the investigator of this case, Charles Johnson, and led Johnson to recover the pistol that Miller allegedly gave to Hammond. Hammond also advised Johnson of several admissions made by Miller. At trial, Hammond changed his testimony, and the district attorney was allowed to impeach him with his prior statement.

¶ 6. Taking the stand, Miller testified that he and Jefferson had gone to the Southern Inn to purchase marijuana from Freeman. Miller stated that he had purchased marijuana on previous occasions from Freeman and that he previously had a relationship with Freeman's sister. Miller denied breaking in, stating that he and Jefferson had simply gone to the hotel room to which they had been directed by Freeman and entered because the door was open. Miller testified that he and Jefferson woke Freeman, but claimed that the altercation began when Freeman directed a racial slur at Jefferson. Miller testified that it was Freeman who had the gun, and that Miller took the gun to prevent Freeman from using it. Miller also claimed that he and Jefferson fled the scene because they did not know what else to do.

¶ 7. In rebuttal, Jefferson, who had been given a plea bargain, confirmed Freeman's version of events. Also, during rebuttal, the jury was shown a videotape of Miller in which Miller gave his account of the events but did not indicate that the fight started over a racial slur.

¶ 8. At the close of the proceedings, Miller was convicted on both counts and sentenced to twenty years for the armed robbery and five years on the burglary, with the sentences to run consecutively.

ISSUES

I. WHETHER MILLER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 9. Miller claims that throughout voir dire and the trial, there were many instances wherein his defense counsel's inexperience prejudiced the proceedings and deprived him of his rights to a fair trial and effective assistance of counsel. Miller claims that he was prejudiced because his attorney, a public defender for Clay County, had not previously tried a criminal case and had no assistance or resources. Miller claims that, while his counsel "made a valiant effort during the trial," he "failed to make even the most rudimentary pretrial investigation and was clearly woefully unprepared." Specifically, Miller claims he received ineffective counsel because his counsel: (1) failed to conduct any pretrial investigation, such as reviewing important evidence and attempting to locate or interview important witnesses; (2) failed to voir dire the jury panel in a proper manner; (3) failed to make a Batson challenge; (4) repeatedly failed to object to improper testimony; and (5) failed to submit proper jury instructions.

*803 ¶ 10. To obtain reversal of a conviction on the grounds of ineffective assistance of counsel, a convicted defendant must show first that his counsel's performance was deficient, and second, that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, the defendant must overcome the strong presumption that his attorney's conduct "falls within a broad range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To establish prejudice, a defendant must show that there is a reasonable probability that, but for his attorney's deficient performance, the finder of fact would have had a reasonable doubt concerning his guilt. Id. at 694-95, 104 S.Ct. 2052 ("A reasonable probability is sufficient to undermine confidence in the outcome"). The right to effective assistance of counsel is intended to ensure that the defendant receives a fair trial; therefore, to establish prejudice, the defendant must show that counsel's errors were so severe as to deprive him of a fair trial with a reliable result. Id. at 687, 104 S.Ct. 2052. In determining whether there was prejudice, the reviewing court must look to the totality of the evidence before the jury. Id. at 695, 104 S.Ct. 2052. In sum, where it is reasonably probable that, but for the attorney's errors, the outcome of the trial would have been different, a reviewing court should find that counsel's performance was deficient. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988). It is important to note that an attorney's "choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections" falls within the ambit of trial strategy and does not give rise to a valid ineffective assistance claim. Powell v. State, 806 So.2d 1069, 1077(¶ 18) (Miss.2001).

¶ 11. First, Miller claims that his attorney was ineffective for failing to conduct any pretrial investigation. Specifically, Miller claims that his counsel failed to review important evidence and failed to attempt to locate or interview important witnesses.

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Miller v. State, 914 So. 2d 800, 2005 WL 2981485 (Mich. Ct. App. 2005).

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