Scott v. State

742 So. 2d 1190, 1999 WL 410490
CourtCourt of Appeals of Mississippi
DecidedJune 22, 1999
Docket97-KA-01071-COA
StatusPublished
Cited by48 cases

This text of 742 So. 2d 1190 (Scott 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
Scott v. State, 742 So. 2d 1190, 1999 WL 410490 (Mich. Ct. App. 1999).

Opinion

742 So.2d 1190 (1999)

Lee SCOTT, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-01071-COA.

Court of Appeals of Mississippi.

June 22, 1999.

*1192 William F. Vick, Jackson, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., COLEMAN, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Aggrieved by his conviction for the transfer of cocaine in the Circuit Court of Covington County, Lee Scott appeals on the following issues of error:

I. WHETHER THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL IN THE LOWER COURT?

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO QUASH THE JURY POOL?

III. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT?

Finding no error, we affirm.

FACTS

¶ 2. On March 16, 1996, during the daylight hours, Undercover Narcotics Officer Wayne Muscio and Agent Dan McIntosh met near Collins, Mississippi for the purposes of conducting undercover narcotics purchases from several unspecified individuals in Collins. Agent McIntosh provided Officer Muscio with money for the purchases and the details of the operation at their prearranged meeting location, after which Officer Muscio then drove to Collins in a 1981 Toyota pickup equipped with a hidden audio and video recorder.

¶ 3. Officer Muscio proceeded to drive to various places in Collins searching for persons engaging in the sale of narcotics. While driving on McLaurin Street, Officer Muscio slowed his vehicle as three males approached. Officer Muscio testified that as he backed up, Scott came closer to the vehicle and asked him, "What do you want, man?" Officer Muscio responded that he wanted a twenty dollar rock, at which time Scott reached in with one hand to take the money and handed Officer Muscio the narcotics with his other hand. This transaction was recorded on the hidden audio and video equipment in Officer Muscio's vehicle. Officer Muscio then drove to the prearranged meeting location and turned the narcotics over to Agent McIntosh. At trial, Officer Muscio identified Scott as the individual who had sold him the narcotics on March 16, 1996, and as the person portrayed in the audio and video recording.

ANALYSIS

I.

WHETHER THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL IN THE LOWER COURT?

II.

WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO QUASH THE JURY POOL?

¶ 4. Scott argues a number of instances of actions or inactions by his trial *1193 counsel which he alleges amounts to a deprivation of his Sixth Amendment right to effective assistance of counsel. Scott's challenge to the effectiveness of counsel he received at trial is dependant upon a successful completion of a two-part test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and followed by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). Under Strickland, Scott must show 1) that counsel's performance was deficient, and 2) that his defense was prejudiced by the deficient performance. Stringer, 454 So.2d at 476. The defendant bears the burden of demonstrating that both prongs have been met. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). There is a strong but rebuttable presumption that an attorney's performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). Application of the Strickland test is applied with deference to counsel's performance, considering the totality of the circumstances to determine whether counsel's actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996). The test is to be applied to the overall performance of the attorney. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. With this test in mind, we turn to Scott's allegations of ineffectiveness.

¶ 5. Scott raises five specific instances of alleged ineffective representation. First, Scott maintains that his trial counsel, Leslie Roussell, failed to heed the advice of the trial court that he should make a motion to quash the entire jury pool only to later raise that same allegedly suggested motion to quash and have it denied as untimely by the trial court. Second, Scott argues that Roussell's continued ineffectiveness is apparent in his decision not to challenge several of the potential jurors whom had stated during voir dire that they knew the defendant personally. Third, Scott argues that Roussell's ineffective assistance is further evident in that he did not cross-examine one of the State's witnesses who Scott claims to have been a key witness for the State, Agent McIntosh. Scott further draws attention to the Rousell's decision not to voir dire an expert witness for the State. Finally, Scott argues that his representation was ineffective as evident in Rousell's failure to call any witness on his behalf. Scott argues that these errors when combined amount to a denial of his right to effective assistance of counsel. We now turn to Scott's alleged instances of ineffective representation.

1. Failure to timely make a motion to quash the jury.

¶ 6. Scott's first part of this assignment alleges that during the jury selection the trial judge made the suggestion that defense counsel should prudently make a motion to quash the entire panel due to the supposed inability of the jury panel to acknowledge affirmatively during voir dire that they could return a verdict of not guilty should the prosecution fail to meet their burden in presenting their case against Scott. A careful review of the record reveals that this was not the case.

THE COURT: Mr. Roussell, you first struck Stacy Burnham. What was your reason for striking Mr. Burnham.
MR. ROUSSELL: Mr. Burnham was on—my reasons for No. 1—my first three strikes, on Juror No. 1, 4 and 5 were all the same reason.
THE COURT: All right. What was it?
MR. ROUSSELL: I repeatedly asked the question about trying to get them to understand if the State did not cross the hurdle of burden of proof would they vote not guilty, and it was hard to actually determine every juror that did raise their hand, but I could see the first two rows the best and I concentrated on them. And Jurors 1, 4 and 5 did not raise their hands when I asked then if *1194 they would vote not guilty on that, if the State didn't meet its burden of proof would they vote not guilty.
MR. FORTENBERRY: Judge, I would ask to bring Juror No. 1 in. I saw him raise his hand.
THE COURT: I saw him raise his hand as well.
MR. ROUSSELL: Did Juror No. 1 raise his?
THE COURT: He was one of the few who did. I figured you would move to quash the whole panel myself. He's one of the few who did raise his hand.
MR. ROUSSELL: I'm not through yet.
THE COURT: Okay. Well, go ahead. That reason doesn't justify. Any other reasons for striking him?
MR. ROUSSELL: Well, another reason I wasn't very comfortable with Mr. Burnham was the fact when he filled out his thing, the only thing he put on here was his name.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jonicqua Moffett v. State of Mississippi
Court of Appeals of Mississippi, 2022
Tyree Camphor v. State of Mississippi
Court of Appeals of Mississippi, 2022
Reginald Barnes v. State of Mississippi
Court of Appeals of Mississippi, 2022
Abel J. Dedeaux v. State of Mississippi
205 So. 3d 697 (Court of Appeals of Mississippi, 2016)
Braggs v. State
121 So. 3d 269 (Court of Appeals of Mississippi, 2013)
Pitts v. State
66 So. 3d 174 (Court of Appeals of Mississippi, 2010)
Harris v. State
37 So. 3d 1237 (Court of Appeals of Mississippi, 2010)
Henry v. State
40 So. 3d 621 (Court of Appeals of Mississippi, 2010)
Barnes v. State
17 So. 3d 1155 (Court of Appeals of Mississippi, 2009)
Nichols v. State
27 So. 3d 433 (Court of Appeals of Mississippi, 2009)
Shorter v. State
946 So. 2d 815 (Court of Appeals of Mississippi, 2007)
Jones v. State
922 So. 2d 31 (Court of Appeals of Mississippi, 2006)
McGee v. State
907 So. 2d 380 (Court of Appeals of Mississippi, 2005)
Hall v. State
906 So. 2d 34 (Court of Appeals of Mississippi, 2004)
Boggan v. State
894 So. 2d 581 (Court of Appeals of Mississippi, 2004)
Hill v. State
850 So. 2d 223 (Court of Appeals of Mississippi, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
742 So. 2d 1190, 1999 WL 410490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-state-missctapp-1999.