Ragland v. State

50 So. 3d 1041, 2010 Miss. App. LEXIS 680, 2010 WL 5093792
CourtCourt of Appeals of Mississippi
DecidedDecember 14, 2010
DocketNo. 2009-KA-01558-COA
StatusPublished
Cited by4 cases

This text of 50 So. 3d 1041 (Ragland 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
Ragland v. State, 50 So. 3d 1041, 2010 Miss. App. LEXIS 680, 2010 WL 5093792 (Mich. Ct. App. 2010).

Opinion

ISHEE, J.,

for the Court:

¶ 1. On July 14, 2009, Darrian Ragland was convicted in the Circuit Court of Coa-homa County of burglary of a dwelling and petit larceny. Ragland appeals his conviction and asks this Court to consider whether he was denied effective assistance of counsel and whether the circuit court erred in denying his motion for a judgment not withstanding the verdict or new trial, alleging the verdict of the jury was against the overwhelming weight of the evidence. Finding no reversible error, we affirm.

FACTS

¶2. On March 27, 2004, Ragland, a nighttime intruder, broke and entered through the window of the dwelling of Kimberly Yarbrough. Ragland slipped into Yarbrough’s bedroom and then her bed. Yarbrough’s children were also in the bedroom. Ragland began running his hands through Yarbrough’s hair and along her leg and demanded, in no uncertain terms, sexual intercourse. Yarbrough jumped out of the bed and grabbed a small pistol from a drawer. By this time, Yarbrough’s children were awake, crying, and screaming, and, after a short struggle for the gun, Ragland left the house taking Yarbrough’s gun with him.

¶ 3. At trial, the police presented three witnesses; Yarbrough, who testified she recognized Ragland and furnished his name to police; Norman Starks, Sergeant of Investigations with the Clarksdale Police Department, and the first to interview Yarbrough; and Joseph Wide, a Clarks-dale police officer, who testified that he had witnessed Ragland on Barnes Street (the street where the incident occurred) approximately two hours before the break-in.

¶ 4. During Starks’s initial interview with Yarbrough, it was discovered that a cooler was stacked on top of a chair leading to the living room window. The window, approximately ten feet above the ground, was discovered to be propped [1044]*1044open with a stick and the window-screen had been cut. The bedroom lamp, normally kept on the bedside table, had been unplugged and removed from the table.

¶ 5. At the close of the State’s evidence, Ragland moved for a directed verdict on the ground that the State had failed to prove each element of the case. This motion was denied. After being advised of his right to testify, Ragland, against the advice of his attorney, insisted on testifying. He asserted a general denial defense and further claimed that he was not in the State of Mississippi, but rather in Ohio. Ragland claimed that he had been living in Ohio for the past six years.

¶ 6. A jury returned a unanimous guilty verdict as to both the burglary charged in count I and the larceny charged in count II. Ragland was subsequently sentenced to twenty-five years for the burglary, and six months for the larceny. Ragland then filed a motion for judgment notwithstanding the verdict, claiming the verdict was against the overwhelming weight of the evidence. This motion was also denied. Aggrieved, he now files this appeal.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 7. Ragland argues that he received ineffective assistance of counsel. He raises the issue for the first time on appeal. Ragland asserts that his trial counsel committed twelve errors of both commission and omission sufficient to render his representation at trial ineffective.

¶ 8. While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because “[w]e are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim.” Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003) (citing Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002)). The Mississippi Supreme Court instructs that, on direct appeal, the entire record should be reviewed. Read v. State, 430 So.2d 832, 841 (Miss.1983). This Court will reach the merits of an ineffective-assistance claim only in instances where: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Wilcher, 863 So.2d at 825 (¶ 171) (citations omitted). Where the record is insufficient to support a claim of ineffective assistance of counsel, “[t]he appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Aguilar, 847 So.2d at 878 (¶ 17) (citing Read, 430 So.2d at 837).

¶ 9. Here, there is no stipulation made by the parties as to the record. Our review then is focused on determining whether the record affirmatively demonstrates that Ragland was denied the effective assistance of counsel. The relevant inquiry is whether the representation of Ragland was “so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice.” Ransom v. State, 919 So.2d 887, 889 (¶ 9) (Miss.2005) (quoting Parham v. State, 229 So.2d 582, 583 (Miss.1969)).

¶ 10. To prove a claim of ineffective assistance of counsel, a defendant must show: (1) that his defense counsel’s performance was deficient, and (2) that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 [1045]*1045So.2d 1106, 1114 (¶ 22) (Miss.1999). “The determination of whether counsel’s performance was both deficient and prejudicial must be determined from the ‘totality of the circumstances.’ ” Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citation omitted). The defendant bears the burden of proving both prongs of the Strickland test and faces a rebuttable presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic.” Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985)). To rebut this presumption, “the defendant must show that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 11. The record does not affirmatively show ineffective assistance of counsel to a degree of constitutional dimensions. Ragland’s allegations of fault as to his attorney could be classified as trial strategy. Regardless, even if Ragland’s attorney’s actions were not part of trial strategy, Ragland is still unable to show prejudice.1 A complaint regarding counsel’s failure to ask certain questions, or make certain objections, falls within the ambit of trial strategy. Houston v. State, 887 So.2d 808, 815 (¶34) (Miss.Ct.App.2004) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). As this Court generally defers to counsel’s judgment at trial, we are reluctant to define counsel’s trial strategy as ineffective assistance of counsel in such matters. Id.

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Bluebook (online)
50 So. 3d 1041, 2010 Miss. App. LEXIS 680, 2010 WL 5093792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ragland-v-state-missctapp-2010.