Turner v. State

962 So. 2d 691, 2007 WL 900795
Court of Appeals of Mississippi·Decided March 27, 2007·No. 2005-KA-02069-COA·Published·Cited by 2 cases

Opinion

962 So.2d 691 (2007)

Larry TURNER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-02069-COA.

Court of Appeals of Mississippi.

March 27, 2007.
Rehearing Denied August 21, 2007.

*692 Howard Q. Davis, Indianola, attorney for appellant.

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

Before LEE, P.J., GRIFFIS and ROBERTS, JJ.

ROBERTS, J., for the Court:

SUMMARY OF THE CASE

¶ 1. On May 17, 2005, incident to a bench trial as requested by Larry Turner, the Washington County Circuit Court found Turner guilty of burglary of a business. On June 24, 2005, the circuit court issued a sentencing order. By that order, the circuit court found that Turner qualified for enhanced sentencing as a habitual offender pursuant to Section 99-19-81 of the Mississippi Code. Consequently, the circuit court sentenced Turner to seven years in the custody of the Mississippi Department of Corrections. On July 1, 2005, Turner filed a pro se notice of appeal. Then, on July 19, 2005, aided by counsel, Turner filed an unsuccessful motion for new trial. Aggrieved, Turner appeals and raises the following issues, listed verbatim:

*693 I. COUNSEL'S REPRESENTATION WAS DEFICIENT.
II. THE COURT ERRED IN NOT ORDERING A CONTINUANCE UNTIL THE TAPE COULD BE REVIEWED.
III. THE COURT ERRED IN CONTINUING THE SENTENCING HEARING AND IN SENTENCING MR. TURNER AS A HABITUAL OFFENDER.
IV. THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
V. THE CUMULATIVE ERRORS IN THIS CASE REQUIRE REVERSAL.

Finding no error, we affirm.

FACTS

¶ 2. On the night of November 5, 2004, a security company notified the Greenville Police Department that the glass door at the Supervalu grocery store had been broken. The security firm also notified David Irby, the assistant manager of Supervalu.

¶ 3. Detective Edward Crockett was the first officer at the scene. Officers Charlton Smith, Chris Orr, and Bobby Walker arrived shortly afterwards. Officer Smith later testified that someone used a piece of iron to shatter the glass door. Officers Smith, Orr, and Walker went inside Supervalu to see if anyone was still inside. They did not find anyone.

¶ 4. Meanwhile, Lieutenant Dondi Gibbs was at another location. Having heard of the break-in at Supervalu, Lieutenant Gibbs "circulated" the area and looked for possible suspects. Lieutenant Gibbs noticed a man in dark clothing. That man, later identified as Turner, had a large white garbage bag. Curious as to the contents, Lieutenant Gibbs followed Turner as he walked. By Lieutenant Gibbs's description, when he approached Turner, Turner "ran over to a brown Ford Taurus which was parked on the grass, and he had the bag in his hand. He ran behind the Taurus, he dropped the bag down, and he started walking back toward the street."

¶ 5. Lieutenant Gibbs ordered Turner to put his hands on his head. Turner complied. Lieutenant Gibbs noticed that Turner had blood on his hands and jacket. Lieutenant Gibbs put Turner in restraints and announced over the radio that he had a suspect. Officers Smith, Orr, and Walker left Supervalu and made their way to Lieutenant Gibbs's location while Detective Crockett stayed at Supervalu and photographed the broken door.

¶ 6. Lieutenant Gibbs turned Turner over to Officer Orr's custody. Lieutenant Gibbs then found Turner's white garbage bag. It was full of meat. Lieutenant Gibbs gave the meat to Officer Smith. Officer Smith put the meat in his trunk and went back to the store.

¶ 7. By the time Officer Smith made his way back to Supervalu, Irby had arrived. Irby deactivated the alarm. Irby also identified the meat labels as having come from Supervalu. Irby totaled up the value of the meat and arrived at the figure of $48.49. Officers took pictures of the meat and then, according to Officer Smith, Irby then "put the meat up."

¶ 8. Supervalu had a video surveillance system. Irby, Lieutenant Gibbs, and Detective Crockett watched the video. By Irby's description at trial, a man entered the store through the broken glass door, "took a right and went straight to the meat aisle" and put meat in a white bag. Irby later cleaned up the broken glass, boarded up the window, and reset the alarm.

PROCEDURAL HISTORY

¶ 9. On February 4, 2005, the Washington County Grand Jury returned an indictment *694 against Turner and accused Turner of burglary of the Supervalu. The indictment also alleged that Turner was a habitual offender pursuant to Section 99-19-18 of the Mississippi Code.[1]

¶ 10. On March 7, 2005, Turner filed a motion and requested "full and complete discovery pursuant to the laws and statutes of the State of Mississippi and pursuant to Rule 9.04 of the Uniform and Circuit and County Court Rules." On March 18, 2005, Turner went before the circuit court and pled "not guilty." On March 23, 2005, the district attorney's office sent the public defender's office a letter and stated, "[a]ttached please find a copy of the District Attorney's file, which includes pages 1 through 33, on your client as per your request." The record merely contains a copy of the letter, not the thirty-three pages listed as included. However, that letter also notified the public defender's office that the district attorney's office retained all physical evidence in Turner's case and that the public defender's office could view it by making arrangements with the Greenville Police Department.

¶ 11. On May 17, 2005, Turner went before the Washington County Circuit Court. Turner requested a bench trial. As will be discussed below, when the circuit court asked the parties whether they were ready for trial, counsel for Turner notified the circuit court that he had only learned of the existence of the videotape "five minutes ago." We will discuss this in much greater depth in Turner's first issue. Here, we can summarize by saying that the circuit court attempted to give Turner and his counsel an opportunity to view the videotape.

¶ 12. The prosecution called four witnesses: Officer Smith, Detective Crockett, Lieutenant Gibbs, and Irby. Afterwards, Turner filed an unsuccessful motion for directed verdict. Turner then announced that he would not be calling any witnesses. Accordingly, the circuit court deliberated and found Turner guilty.

¶ 13. The circuit court then proceeded with the habitual offender portion of Turner's indictment. The circuit court continued that portion of Turner's trial to June 24, 2005. On that date, the circuit court found that Turner met the criteria for sentencing as a habitual offender pursuant to Section 99-19-81. Accordingly, the circuit court sentenced Turner to seven years in the custody of the MDOC.

¶ 14. On July 1, 2005, Turner filed a pro se notice of appeal. However, on July 19, 2005, aided by counsel, Turner filed an unsuccessful motion for new trial. On January 5, 2006, the circuit court issued its "Final Order and Setting of Appeal Bond." Within that order, the circuit court noted that it had overruled Turner's motion for new trial. Aggrieved, Turner appeals.

ANALYSIS

I. COUNSEL'S REPRESENTATION WAS DEFICIENT.

¶ 15. In his first issue, Turner claims that he experienced ineffective assistance of counsel. However, Turner claims that his counsel was ineffective in the way he handled the videotape of the surveillance footage.

*695 ¶ 16.

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