Townsend v. State

933 So. 2d 986, 2005 WL 3291391
CourtCourt of Appeals of Mississippi
DecidedDecember 6, 2005
Docket2004-KA-00504-COA
StatusPublished
Cited by2 cases

This text of 933 So. 2d 986 (Townsend 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
Townsend v. State, 933 So. 2d 986, 2005 WL 3291391 (Mich. Ct. App. 2005).

Opinion

933 So.2d 986 (2005)

Barry Stephan TOWNSEND, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-00504-COA.

Court of Appeals of Mississippi.

December 6, 2005.
Rehearing Denied April 18, 2006.

*987 John Kevin Cavender, attorney for appellant.

Office of the Attorney General by Scott Stuart, attorneys for appellee.

EN BANC.

*988 BARNES, J., for the Court.

¶ 1. Barry Stephan Townsend was convicted of one count of rape and two counts of sexual battery in the Circuit Court of Lee County on February 18, 2004. He was sentenced to ninety-five years in the custody of the Mississippi Department of Corrections, with twenty years suspended. Aggrieved by the verdict of the jury, Townsend appealed. Finding no merit to his arguments, we affirm the judgment of the trial court.

FACTS

¶ 2. D.I. testified that on August 12, 2002, she was walking along the road on her way from New Albany to Pontotoc to surprise her boyfriend at work and have lunch with him. D.I. did not have a car, so her plan was to walk down the road until she was able to catch a ride with a passerby. She testified that when Townsend pulled over to offer her a ride, she offered him five dollars to drive her to Pontotoc. Townsend responded that he first had to drop off a passenger, but that he would then drive her to Pontotoc. D.I. agreed and accepted the ride with Townsend.

¶ 3. D.I. testified that after she entered the car, Townsend drove to the house of a friend, where he used the five dollars she gave him to purchase crack cocaine. D.I. and Townsend both smoked crack cocaine, and then got back into Townsend's vehicle and proceeded to a gas station, where Townsend purchased beer. At the insistence of his passenger, Townsend then drove to a home where he dropped off the passenger. D.I. testified that, when they reached the home, Townsend and the passenger became embroiled in a violent argument over the beer. The behavior of the men frightened D.I., and she ran off down the road. Seeing this, Townsend quickly drove out to D.I. and convinced her to get back in the car.

¶ 4. At this point, D.I. and Townsend were alone in the car, presumably driving to Pontotoc. D.I. testified that she became increasingly concerned that Townsend was driving in the wrong direction, and asked to be let out of the car. Townsend refused, began to physically and verbally assault D.I., and then proceeded to an abandoned gravel road. D.I. testified that Townsend parked the car and forced her to perform oral sex. For the next "four or five hours," Townsend continually forced her to have both oral and vaginal sex with him in the car. At one point, D.I. claims that Townsend raped her on the hood of the car, in plain view of passing cars. When it was nearly dark, D.I. managed to escape into the woods. However, Townsend quickly found her, dragged her through the woods to the car, and hit her on the head and in the chest. Finally, after dark, Townsend and D.I. returned to the house where Townsend had previously dropped off his passenger. D.I. testified that there was an older man in the house when they returned; she attempted to signal to him for help, but stopped short because Townsend had threatened to kill her if she notified anyone of what had happened. Townsend then took D.I. to a bedroom where he forced her to have anal sex with him. D.I. testified that Townsend then fell asleep, whereupon she exited the bedroom, taking Townsend's cell phone with her so that she could identify him to authorities.

¶ 5. After leaving the bedroom, D.I. was able to convince the older man in the house to drive her to a nearby gas station. She attempted to phone for help from the station, but the phone was broken. She then went across the street to an unoccupied house, where she waited until a customer arrived at the gas station. The customer drove D.I. to her mother's house. Later, D.I. led police to the house where *989 she claimed Townsend had taken her. After marking the location and securing a search warrant, the police returned to the house to execute the warrant. Townsend was present at the house when the police arrived and was taken into custody.

¶ 6. On February 18, 2004, Townsend stood trial for sexual battery and rape. The jury convicted him on all counts. Townsend then perfected this appeal, claiming that he did not receive effective assistance of counsel at trial, and that the trial judge erred in admitting a stolen car report into evidence.

I. WHETHER TOWNSEND'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE HIS TRIAL ATTORNEY FAILED TO PROVIDE CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. Townsend argues that his trial counsel did not provide constitutionally effective assistance because, Townsend claims, he was unaware that he was to stand trial on February 17, 2004; because counsel's opening statement was too short; because counsel failed to object during the direct examination of D.I.; because counsel appeared to bolster the testimony of D.I.; because counsel failed to make other objections; and because counsel failed to call witnesses and put on evidence in Townsend's defense. The State counters that Townsend did not stand trial on February 17, but instead the next day. The State argues that defense counsel's opening statement presented a plausible defense theory of consensual sex; that counsel made proper and strategic objections throughout the trial; that counsel did not bolster D.I.'s testimony but instead attacked her credibility; and that Townsend has not, even with different counsel, indicated which witnesses should have been called or what evidence could have been admitted in his defense. In sum, the State argues that Townsend has not met the heavy burden that is required to show ineffective assistance of counsel on direct appeal. We agree with the State.

¶ 8. The Sixth Amendment guarantees the assistance of counsel for the defense of citizens accused of crimes. U.S. CONST. amend. VI. The guarantee of assistance of counsel has been expanded to require "effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Whether the defendant received effective assistance of counsel at trial is measured by a two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test, as espoused by the Mississippi Supreme Court, is "(1) whether counsel's overall performance was deficient, and (2) whether or not the deficient performance, if any, prejudiced the defense." Taylor v. State, 682 So.2d 359, 363 (Miss.1996) (citing Cole v. State, 666 So.2d 767, 775 (Miss. 1995)). The defendant bears the burden of proving both prongs of the test, and a strong, but rebuttable, presumption exists that the defense counsel's actions were reasonable and strategic. Id. "The adequacy of counsel's performance, as to its deficiency and prejudicial effect, should be measured by a `totality of the circumstances.'" Id. (citing Cole, 666 So.2d at 775). In addition, on direct appeal, the defendant must demonstrate that his representation was so deficient and prejudicial that the trial judge had the duty to declare a mistrial sua sponte "so as to prevent a mockery of justice." Colenburg v. State, 735 So.2d 1099, 1102(¶ 8) (Miss.Ct.App. 1999).

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933 So. 2d 986, 2005 WL 3291391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-state-missctapp-2005.