IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-KA-01910-SCT
WEISSENGER NEWBERRY, III a/k/a WEISSENGER NEWBERRY
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 11/27/2012 TRIAL JUDGE: HON. GERALD W. CHATHAM, SR. COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: WANDA ABIOTO ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: JOHN W. CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 08/21/2014 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WALLER, C.J., CHANDLER AND KING, JJ.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. On appeal of Weissenger Newberry’s felony convictions, we reverse and remand for
a new trial due to the trial court’s and counsel’s failure to comply with Mississippi Rule of
Appellate Procedure 46 governing the admission of foreign attorneys to practice pro hac
vice. Most significantly, the trial court erred in waiving the now-mandatory requirement that
associated local counsel be present at trial.
FACTS AND PROCEEDINGS BELOW ¶2. In 2011, Newberry was pulled over for suspicion of driving under the influence (DUI)
after an officer observed him weaving between lanes. He resisted arrest and subsequently
was indicted on two counts of assaulting a law-enforcement officer, possession of marijuana,
possession of cocaine, and a first DUI. The indictment later was amended to reflect his
habitual-offender status. The assault charges eventually were dropped.
¶3. Newberry engaged Gerald S. Green, a Tennessee attorney, to represent him. A
scheduling order of May 14, 2012, listed Green as attorney of record. On June 15, 2012,
Green submitted a verified application and affidavit to appear pro hac vice, listing the
enumerated requirements of Mississippi Rule of Appellate Procedure 46(b)(5), including the
statement that Green “has associated Attorney Daniel O. Lofton, a member in good standing
of the Mississippi Bar as local counsel in this case . . . .” The application included a
Certificate of Local Attorney signed by Daniel Lofton and a Certificate of Payment for the
pro hac vice fee of $200 to the Clerk of the Mississippi Supreme Court. This was the
complete extent of Lofton’s involvement in the case.
¶4. Also on June 15, 2012, Green submitted a Motion to Dismiss Prosecution and a
Request for Discovery on Newberry’s behalf. These two motions were signed and submitted
only by Green. Additionally, Green’s bar number as listed next to his signature on these
motions did not indicate in which state Green was licensed.
¶5. Green represented Newberry at an August 7, 2012, hearing in which the court denied
the Motion to Dismiss and granted the State’s Motion to Amend the Indictment charging
Newberry as a habitual offender under Mississippi Code Section 99-19-81. Green had not
at that time been approved to proceed pro hac vice, and associated attorney Lofton was not
2 present at the hearing. The court subsequently denied an August 17, 2012, Motion to
Continue Trial filed by Green.1
¶6. The trial occurred on August 22, 2012. After the jury was selected, the court approved
Green’s application to proceed pro hac vice and waived the requirement that local counsel
be present during trial. The State had no objection to the trial proceeding without the
presence of local counsel. The portion of the transcript from the start of trial granting Green’s
pro hac vice application and permitting the trial to move forward without the presence of
local counsel reads as follows:
[STATE]: Your Honor, as a preliminary matter. . . [i]t’s my understanding that the Supreme Court has approved him to proceed pro hac vice in the Mississippi court. The state has no objection to that.
Further, it’s my understand of the rule that local counsel is not here. The rule expressly allows the defendant defense counsel to proceed without local counsel if the judge expressly allows that or makes a ruling as such. The state has no objection whatsoever to Mr. Green proceeding without local counsel being present.
THE COURT: All right. It’s my understanding from looking at the court file myself that Mr. Green has complied with the Mississippi rules concerning the admission pro hac vice, and I do hereby rule that he is an attorney in good standing in Shelby County and has been accepted for practice here pursuant to our court rules.
He has paid the necessary fees to the State of Mississippi and to the Mississippi bar, and I’m going to excuse the local counsel from being here participating. . . .
1 The motion was based on the submission of a video of the alleged crime five days prior to the trial. Mr. Green viewed the video in the prosecutor’s office but was not provided a copy.
3 ¶7. After a one-day trial, Newberry was convicted of possession of marijuana, possession
of cocaine, and first-offense DUI. Evidence was submitted showing that Newberry’s blood
alcohol level several hours after arrest was 0.13. In addition to the testimony of officers
present at the scene, the dash-cam video of the incident was shown to the jury.
¶8. The Supreme Court never received an order approving Green’s admission to proceed
pro hac vice. Green stated at the post-trial motions hearing that “I didn’t submit any order.
I didn’t think anything else was required after we had our proceedings in this court. They
[Mississippi Supreme Court Clerk] sent back the cases that I had been in, and they approved
that I had paid the money.”
¶9. Daniel Lofton, the associated attorney, testified at the post-trial motions hearing that
he understood his role and obligations to be limited to certifying that Green was an attorney
in good standing in Tennessee on Green’s pro hac vice application, and that he would be
notified if his involvement was further required. Lofton never met or communicated with
Newberry. Lofton stated that
Mr. Green is an experienced counsel, and I acted discretionarily under his advice. . . . I saw none of [the documents/motions filed on Newberry’s behalf] nor was I aware that this matter was going to trial, nor was I aware of the seriousness with which–the charges which Mr. Newberry faced, especially the habitual offender issue. I had no idea. . . I basically certified that Gerald Green was an attorney in good standing to the best of my knowledge, which I have direct knowledge of being a Tennessee attorney,2 as well, no, like I said, I was not part of the contract for services with Mr. Newberry. I didn’t have any arrangement with him to be compensated.
At the post-trial motions hearing, Newberry asserted that he never knew Green was not
licensed to practice in Mississippi. This contradicts Green’s testimony that he told Newberry
2 Lofton is licensed in both Mississippi and Tennessee.
4 up front that he could not practice in Mississippi unless he was admitted pro hac vice and
followed the rules governing admission. Newberry hired a new attorney immediately
following the trial and was represented by the new attorney at the post-trial motions hearing,
sentencing hearing, and on this appeal.
DISCUSSION
¶10. Deprivation of counsel and pro hac vice requirements are questions of law, which we
review de novo. In re Williamson, 838 So. 2d 226, 233 (Miss. 2002).
I. Newberry was not denied counsel under the Sixth Amendment.
¶11. Newberry argues that he was denied counsel under the Sixth Amendment due to
Green’s failure to comply with the requirements to practice pro hac vice, and in particular
due to the absence of local counsel at trial. But failure of an out-of-state attorney to comply
with the rules for pro hac vice admission is not a per se deprivation of counsel under the
Sixth Amendment. Cole v. U.S., 162 F.3d 957, 958 (7th Cir. 1998). Addressing a situation
where a nonlocal lawyer had provided representation, the Seventh Circuit stated:
The right to the representation of counsel implies some minimum standard of competence, but “the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer.” . . . Thus, whether a lawyer has been admitted to practice in the local jurisdiction is not of constitutional dimension.
Id. (quoting U.S. v. Maria-Martinez, 143 F.3d 914, 917 (5th Cir. 1998)). The court further
observed:
As a general matter, only a few circumstances give rise to a per se violation of the Sixth Amendment right to counsel: no counsel present at all, or counsel not present at critical stages; complete failure to cross-examine or subject the opposing case to the adversarial process; an actual conflict of interest; and
5 failure to file a requested appeal. The Supreme Court has described these as “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”
Id. (quoting U.S. v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)).
See also U.S. v. Sanders, 377 F.3d 845 (8th Cir. 2004) (holding that failure to adhere to
formal pro hac vice procedures was not failure to appoint counsel under Sixth Amendment).
¶12. Here, Green was a licensed, competent, practicing attorney in Tennessee. Therefore,
his failure to satisfy the pro hac vice requirements does not constitute a per se structural
violation of the Sixth Amendment.
II. Failure to Comply with Mississippi Rule of Appellate Procedure 46
¶13. Green did not completely satisfy the requirements for pro hac vice admission before
acting to represent Newberry, and the trial court clearly erred in allowing the trial to proceed
without the presence of local counsel.
¶14. Rule 46(b)(7) states:
A foreign attorney shall not appear as counsel pro hac vice before any court or administrative agency until the foreign attorney certifies to the court or administrative agency that the foreign attorney has provided a copy of the order authorizing such appearance to the Clerk of the Supreme Court.
¶15. The trial court did not authorize Green to practice pro hac vice until well after Green
had represented Newberry by filing motions on Newberry’s behalf without listing associated
counsel and by representing him in person at pretrial hearings.3 Additionally, Green should
3 Mississippi Rule of Appellate Procedure 46(b)(11)(I) provides:
No court clerk or filing officer of any administrative agency of this state shall accept or file any pleadings or other papers from a foreign attorney who has not complied with the requirements of this rule. Any pleadings or other papers
6 have certified to the trial court that the Clerk of the Supreme Court had been provided a copy
of the order authorizing his appearance before he acted to represent Newberry.
¶16. The trial court erred in waiving the now-mandatory requirement that associated local
counsel be present at trial. As established by the 2003 amendments and comments to Rule
46, the presence of local counsel at trial is now mandatory and may not be excused by the
trial judge. Rule 46(b)(4) states:
No foreign attorney may appear pro hac vice before any court or administrative agency of this state unless the foreign attorney has associated in that cause a local attorney. The name of the associated local attorney shall appear on all notices, orders, pleadings, and other papers filed in the cause. The local attorney shall personally appear and participate in all trials, and, unless specifically excused from such appearance by the court or administrative agency, in all pretrial conferences, hearings, other proceedings conducted in open court and all depositions or other proceedings in which testimony is given in this state. By associating with a foreign attorney in a particular cause, the local counsel accepts joint and several responsibility with such foreign attorney to the client, to opposing parties and counsel, and to the court or administrative agency in all matters arising from that particular cause.
M.R.A.P. 46(b)(4) (emphasis added). The comment to Rule 46 states in part:
As amended in 2003, Rule 46(b)(4) departs from prior practice and now requires that associated local counsel personally appear and participate in all depositions or other proceedings in which testimony is given in this state, in addition to all trials, pretrial conferences, hearings other proceedings conducted in open court. The local attorney may be specifically excused by the judge from attending proceedings other than trials.
in violation of this rule shall be stricken from the record upon the motion of any party or by the court or administrative agency sua sponte.
See also Mitchell v. Progressive Ins. Co., 965 So. 2d 679 (Miss. 2007). While the circuit court clerk did not refuse to accept Green’s pretrial motions, that might have been because it was not clear from his signature and bar number on the filings that he was an out-of-state attorney.
7 M.R.A.P. 46 cmt. (emphasis added).
¶17. The rule imposes a mandatory requirement that “the local attorney shall personally
apear and participate in all trials.” The trial court held that the rule can be read to allow the
trial court to excuse the local attorney’s presence at trial. This reading is untenable. The
mandatory requirement that “the local attorney shall personally appear and participate in all
trials” is structured to stand independent from the subsequent list of proceedings the local
attorney must also attend unless excused by the court. M.R.A.P. 46(b)(4). The phrase “and,
unless specifically excused from such appearance by the court . . .” is a qualifier to the
subsequent list of proceedings, a list that does not include “trial.” Id. The phrase “such
appearance” does not refer back to the term “trial” in the initial clause of the sentence, but
rather refers to the subsequent list of proceedings. The comment clarifies matters and
expressly states, “[t]he local attorney may be specifically excused by the judge from
attending proceedings other than trials.” M.R.A.P. 46(b)(4) cmt. (emphasis added).
¶18. As explained by the comment, by enacting the 2003 amendments to Rule 46, this
Court made a deliberate choice to “depart from prior practice” and significantly increase the
required involvement of associated local counsel. M.R.A.P. 46 cmt. This heightened-
involvement requirement promotes the policy of ensuring that defendants are adequately
represented by counsel knowledgeable and experienced in local court rules and practice. Id.
Green’s representation did not comply with this requirement, and the trial court clearly erred
in interpreting the rule to permit the waiver of local counsel at trial.
¶19. We have found strict compliance with Rule 46 appropriate in circumstances where
local counsel was absent from the representation. In Taylor v. General Motors Corp., 717
8 So. 2d 747 (Miss. 1998), this Court held that the trial court acted appropriately when it struck
the plaintiff’s complaint because the pro hac vice attorney had not complied with Rule 46
admission requirements and had failed to associate local counsel. In Dinet v. Gavagnie, 948
So. 2d 1281, 1284 (Miss. 2007), this Court reversed the trial court’s decision to strike
pleadings where, even though the name of a foreign attorney who had failed to obtain
admission pro hac vice was on the filings, a local attorney had been substituted as counsel
and the local attorney’s name was also on the filing. The Court distinguished Dinet from
Taylor by pointing out that, in Taylor, “the plaintiffs were represented by only a foreign
attorney, who had not been properly admitted pro hac vice.” Dinet, 948 So. 2d at 1285.
¶20. In Martin v. State, 749 So. 2d 375 (Miss. Ct. App. 1999), a case decided before the
2003 amendments, the Court of Appeals declined to reverse a guilty plea where associated
local counsel was present at the plea hearing but the defendant’s second, pro hac vice
attorney was absent. The court stated:
[the pro hac vice attorney] did not appear at the guilty plea hearing. Instead, local counsel, Robert Evans, was present when Martin entered his plea of guilty at the hearing. It is undisputed in the record that Evans was a local attorney who was familiar with the local rules and practice in this area of law. The argument that [the pro hac vice attorney] had not met the requirements of M.R.A.P. 46 in no way impedes the validity of the guilty plea entered by Martin.
¶21. Despite the submission of Lofton’s “Certificate of Local Attorney” with Green’s pro
hac vice application, Newberry was, for all practical purposes, “represented only by a foreign
attorney, who had not been properly admitted pro hac vice.” See Dinet, 948 So. 2d at 1285.
Consistent with this Court’s precedent and the policies behind amending the rules to required
heightened involvement of local counsel, and unlike the scenarios in Martin and Dinet, the
9 involvement of local counsel is not present as a potential mitigating factor to compensate for
Green’s failure to satisfy the Rule 46 requirements. Not only did associated local counsel not
appear at trial, he was not even aware of the filings made, of the nature of the charges against
Newberry (including his habitual-offender status), or even that the case was going to trial.
¶22. The State argues that Newberry waived his right to challenge the Rule 46 violation
because Newberry allowed Green to represent him at trial knowing that Green was not a
Mississippi attorney. But waiver requires that the party knew or with reasonable diligence
may have discovered the violation and yet still permitted the representation to proceed. See
Terrell v. Tschirn, 656 So. 2d 1150 (Miss. 1995). Here, at trial, the trial judge, the State, and
Newberry’s attorney all represented to Newberry that the absence of local counsel at trial was
not a violation, and that Green had complied with all of the requirements for pro hac vice
admission. In the face of that representation, Newberry could not be expected to have the
requisite knowledge of the violation for a finding of waiver. He also would have no
mechanism for objecting to the violation that occurred at trial (since his noncompliant
attorney would be his mechanism for objecting), and he did challenge the violation (with a
new attorney) at the first post-trial opportunity, the post-trial motions.
¶23. We held, in the context of pretrial Rule 46 violations and prior to the 2003
amendments to the rule, in the context of pretrial activity, that “where a party knows or with
reasonable diligence may have discovered the Rule 46 violation, the failure to file a motion
prior to trial acts as a waiver and procedurally bars him from raising the issue on appeal.”
Terrell v. Tschirn, 656 So. 2d 1150 (Miss. 1995). We are not overruling Terrell, but rather
supplementing it in the context of violations that occurred at trial, not merely pretrial, where
10 all parties at trial represented that no violation occurred, and in consideration of the 2003
amendments to the rules.4
¶24. Our enforcement of Rule 46 goes not only toward protecting clients’ rights, but
toward enforcing both society’s and the profession’s respect for this Court and the processes
that have been established for seeking redress. Both principles are weakened if a finding of
waiver is as simple as a defendant’s awareness that he is represented by an outside attorney,
where the trial judge, the State, and the defendant’s attorney all represented that the attorney
was in compliance with the rules governing foreign attorney admission.5 The presence of
local counsel may cover a multitude of pro hac vice sins when evaluating prejudice to a
defendant, but this Court will take very seriously pro hac vice violations that involve the
absence of local counsel.
¶25. We hold that, under this set of facts, Newberry did not waive his right to challenge the
Rule 46 violation, and that the seriousness of the violation in failing to have local counsel
involved at all and especially at trial warrants reversal of Newberry’s convictions.
4 The separate opinion appears to find the issues in this case indistinguishable from Terrell, however we find this case distinguishable in that the violations were not exclusively pretrial and the requisite knowledge for waiver was not present. 5 We disagree with the separate opinion that this case reduces to a Strickland analysis for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). While we do not find it necessary to go so far in this case, we note that some jurisdictions have held that “[w]hen a defendant is unaware at the time of trial that his trial counsel is neither licensed to practice law in [the jurisdiction] nor admitted pro hac vice pursuant to [the local rules], [the] court will presume that the defendant suffered prejudice and hold as a matter of law that the conduct of counsel in question was ineffective assistance of counsel per se.” Little v. State, 819 N.E. 2d 496, 503 (2004). In Little, the Court of Appeals of Indiana rejected an ineffective-assistance-of-counsel claim where a defendant proceeded to trial (without local counsel) with knowledge that his foreign attorney had failed to comply with the relevant rules governing admission. Id. at 502.
11 ¶26. Newberry also argues that his sentencing as a habitual offender is reversible due to
the trial court’s failure to admit proof of his prior convictions into evidence at the sentencing
hearing, as well as the trial court’s failure to treat the sentencing hearing as the appropriate
time for the defendant to challenge the competency of those records with evidence and
testimony. See Grayer v. State, 120 So. 3d 964 (Miss. 2013). Since we are reversing the
underlying convictions, we do not address the merits of this argument. Because the
conviction is not reversed on grounds of insufficiency of the evidence, jeopardy will not be
an issue at sentencing should Newberry be convicted again. See U.S. v. Tateo, 377 U.S. 463
(1964), 84 S. Ct. 1687, 12 L. Ed. 2d 448; Denton v. Duckworth, 873 F.2d 144 (7th Cir.
1989).
¶27. REVERSED AND REMANDED.
WALLER, C.J., DICKINSON, P.J., KITCHENS AND KING, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.
COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶28. I agree with the majority’s opinion that Newberry was not denied counsel under the
Sixth Amendment. I also agree that Green did not comply with the requirements for pro hac
vice admission as dictated in Mississippi Rule of Appellate Procedure 46, specifically the
requirement that local counsel be present at trial. However, I disagree that the failure to
follow Rule 46 constitutes ineffective assistance of counsel per se when the defendant is
unaware that his counsel is not licensed to practice law in Mississippi nor admitted pro hac
vice, requiring reversal in the instant case. Nonetheless, because the State failed to properly
12 provide evidence supporting Newberry’s status as a habitual offender, I would reverse the
trial court’s imposition of the habitual offender sentence enhancement. Finally, the trial
court, within its discretion, properly allowed Officer Scallorn to testify on whether Newberry
was under the influence. Therefore, I respectfully concur in part and dissent in part.
I. Pro Hac Vice Admission and Rule 46 of the Mississippi Rules of Appellate Procedure
¶29. Mississippi Rule of Appellate Procedure 46 controls the admission, withdrawal, and
discipline of attorneys, including pro hac vice admissions. Miss. R. App. P. 46. As the
majority correctly lays out, Rule 46 lists several requirements for proper pro hac vice
admission, including that a foreign attorney “shall not appear as counsel pro hac vice before
any court . . . until the foreign attorney certifies to the court . . . that the foreign attorney has
provided a copy of the order authorizing such appearance to the Clerk of the Supreme
Court.” Miss. R. App. P. 46(b)(7). Yet, in the instant case, Green was not authorized by the
trial court until he had represented Newberry by filing motions on his behalf, and he testified
in post-trial proceedings that he never submitted an order admitting him pro hac vice to the
Mississippi Supreme Court.6 Further, it is clear that Green did not comply with the
requirements of Rule 46 that local counsel be present at trial. Miss. R. App. P. 46(b)(4)
(allowing the Court to excuse local counsel from appearing in pretrial conferences, hearings,
and other procedures, but not allowing the Court to excuse local counsel from appearing at
trial).
6 The records maintained by the Supreme Court confirmed that he never submitted an order admitting him.
13 ¶30. While I concur with the majority that Green violated Rule 46, I respectfully dissent
as to the reversal of the defendant’s conviction. Rule 46 contains a section spelling out
exactly how Rule 46 should be enforced:
ii. By Courts and Administrative Agencies. The courts . . . of this state shall have the duty and authority to enforce the provisions of this rule by denying violators the right to appear. If a foreign attorney engages in professional misconduct during the course of a special appearance, the judge . . . may revoke permission to appear pro hac vice and may cite the foreign attorney for contempt. In addition, the judge . . . shall refer the matter to the disciplinary counsel of the Mississippi Bar for appropriate action by the disciplinary tribunal.
iii. Violation. Violation of this rule is deemed to be the unlawful practice of law. The Mississippi Bar, or its designated representatives, shall have the right to take appropriate action to enforce the provisions of this rule under the provisions of Miss. Code Ann. § 73-51-1 (1989).
Miss. R. App. P. 46(b)(11). Nowhere in Rule 46, or elsewhere in our law, is there a
provision that states that violation of Rule 46, whether or not the client is aware, equates in
and of itself to a violation of an accused’s right to counsel. As the State points out, in Terrell
v. Tschirn, 656 So. 2d 1150 (Miss. 1995), we wrote as follows:
Where a party knows or with reasonable diligence may have discovered the Rule 46 violation, the failure to file a motion prior to trial acts as a waiver and procedurally bars him from raising the issue on appeal. Terrell should not be allowed to take his chances with a jury and then, after he loses, file his motion. See Buchanan v. Buchanan, 587 So. 2d 892, 897 (Miss. 1991) (party who knew of grounds for judge’s recusal could not wait until after adverse verdict to file a motion, the point is deemed waived). See also Ryals v. Pigott, 580 So. 2d 1140, 1175-76 (Miss. 1990); City of Biloxi v. Cawley, 332 So. 2d 749, 750 (Miss. 1976).
Id. at 1152. In Terrell, a party was represented by an attorney licensed in Louisiana but not
in Mississippi. Id. The Louisiana-licensed attorney never obtained pro hac vice admission,
and on appeal his client argued that all pleadings signed by him should be struck. Id.
14 Pursuant to the above-quoted reasoning, we held Terrell to be barred from complaining about
the failure of his attorney to obtain pro hac vice admission. In the case sub judice, one of the
Rule 46 violations of which Newberry complains is that his counsel was allowed to proceed
at trial without local counsel present. Clearly, he had reason to know of the Rule 46 violation
prior to the start of trial. Absent some sort of showing that his counsel was constitutionally
ineffective pursuant to Strickland, discussed below, he waived any Rule 46 violation.
¶31. The majority, discussing Little v. State, 819 N.E. 2d 496, 503 (Ind. Ct. App. 2004),
also appears to hold that the appearance by foreign counsel amounts to per se ineffective
assistance of counsel, but I disagree.7 In Mississippi, ineffective assistance of counsel claims
are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). Parker v. State,
30 So. 3d 1222, 1233 (¶ 37) (Miss. 2010); Holly v. State, 716 So. 2d 979, 989 (Miss. 1998).
A strong, albeit rebuttable, presumption exists that trial counsel performed in a competent
manner and within the broad spectrum of reasonable conduct that one might expect from a
trial attorney. Parker, 30 So. 3d at 1233 (¶ 37). To successfully rebut the presumption, a
defendant must demonstrate that “his attorney’s performance was deficient, and that the
deficiency was so substantial as to deprive the defendant of a fair trial.” Id. “Only where
it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have
been different, will we find that counsel’s performance was deficient.” Id.
7 I do not agree that we should adopt Little. However, even if we did, it would not apply here. The crux of the Little Court’s rule is whether the defendant knows his attorney is not licensed in the jurisdiction of trial. If the defendant knows, then there is no Sixth Amendment issue. Little, 819 N.E. 2d at 503. On direct examination, Newberry admitted he knew Green was not licensed in Mississippi, stating that Green “told me he couldn’t practice in Mississippi, and he had another counsel who would practice with him.”
15 ¶32. Based on my review of his brief, the defendant makes no attempt to rebut the
presumption that his trial counsel acted competently. He points to no part of the record that
shows his defense suffered due to any ignorance of Mississippi law or procedure on the part
of his trial attorney. Neither the defendant nor the majority cites the Strickland standard.
The instant case provides a remarkable example of a violation of our rules prohibiting the
practice of law by an unlicensed attorney, but I am unwilling to create an exception to our
well-settled adherence to Strickland. See United States v. Maria-Martinez, 143 F.3d 914,
916-17 (5th Cir. 1998) (declining to apply a per se ineffectiveness rule in situations involving
unlicensed attorneys); see also United States v. Mitchell, 216 F.3d 1126 (D.C. Cir. 2000)
(holding that suspension of an attorney does not, by itself, render counsel per se ineffective
under the Sixth Amendment, and that the Strickland analysis still applies); United States v.
Ross, 338 F.3d 1054, 1056-57 (9th Cir. 2003) (suspension from practice prior to start of
petitioner’s criminal trial is not per se ineffective assistance); United States v. Mouzin, 785
F.2d 682, 698 (9th Cir. 1986) (disbarment during petitioner’s criminal proceedings did not
violate Sixth Amendment right to effective assistance of counsel); United States v. Hoffman,
733 F.2d 596 (9th Cir. 1984) (suspension from practice does not automatically violate Sixth
Amendment right to effective assistance of counsel).
¶33. Because the majority opinion does not reach Newberry’s remaining arguments on
appeal as a result of the decision to reverse on the Rule 46 violation, it is necessary to briefly
discuss the remaining issues here. In addition to his Rule 46 and Sixth Amendment
arguments, Newberry argues that the trial court erred in failing to admit proof of his prior
16 convictions into evidence during sentencing and that the trial court erred in admitting the
opinion testimony of Officer Jason Scallorn.
II. Habitual Offender Status
¶34. Evidence supporting an habitual offender enhancement imposed pursuant to
Mississippi Code Section 99-19-81 must be introduced and made a part of the record of the
sentencing hearing. Young v. State, 507 So. 2d 48, 50 (Miss. 1987). Uniform Rule of
Circuit and County Court Practice 11.03(2) requires the trial court to hold a separate trial on
the charge of previous convictions. “The state has the same burden of proof as to the
habitual offender portion of the indictment as it has on the principal charge. The defendant
also has the same rights at both stages of trial.” Young, 507 So. 2d at 50 (quoting Seely v.
State, 451 So. 2d 213, 215 (Miss. 1984)).
¶35. In Young, the State introduced – during the sentencing hearing – documentary
evidence showing that one “Louis Young” had three prior felony convictions. Young, 507
So. 2d at 49. Counsel for the defendant, Lewis Oscar Young, objected on the basis that the
State never established that the Louis Young named in the documents was the same man as
his client. Id. In overruling the objection, the trial judge relied on testimony elicited from
the defendant during the guilt phase of the trial, wherein the defendant testified that he was
convicted of the three offenses. Id. The Young Court, describing the sentencing procedure
as “seriously deficient,” reversed because the testimony upon which the judge relied in
overruling the defendant’s objection was never introduced into evidence at the sentencing
hearing. Id. at 50.
17 ¶36. In the case sub judice, certified copies of Newberry’s convictions, or pen pack, had
been attached to the State’s pretrial motion to amend the indictment. At sentencing, the
prosecutor offered them into evidence and noted that they had been attached to the earlier-
filed motion to amend. As in Young, the defendant contended that the convictions detailed
in the pen pack were of someone else. Defense counsel indicated that she wished to place
her client on the stand to testify as to whether or not the convictions found in the pen pack
pertained to him, to which the trial judge responded, “Well, they’ve already been admitted
into evidence, so I’ll have to accept them as they are, ma’am.” However, our review of the
record and exhibits reveals that they were not, in fact, introduced into evidence, nor did the
trial judge incorporate them into the record by reference.8 Despite an attempt by defense
counsel to inform the court that the pen pack had not been introduced, the trial judge
continued to proceed under the mistaken impression that it had.
¶37. Young and its predecessor, Seely v. State, 451 So. 2d 213 (Miss. 1984), clearly stand
for the proposition that “[e]vidence which is not admitted cannot be considered proof in the
case,” Alphonso v. Deshotel, 17 S.W.3d 194, 201 (Tex. Ct. App. 2013). The Seely Court
wrote:
A jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof. The state has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge. The defendant also has the same rights at both
8 Because they were not incorporated by reference, the instant case is distinguishable from our recent holding in Conner v. State, 138 So. 3d 143 (Miss. 2014). There, we held that incorporating the pen pack by reference, while not preferred, sufficed to support an habitual offender sentence enhancement.
18 stages of trial. There appears to be some tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender, then routinely pass out the sentence mandated by § 99-19-81. We wish to leave no doubt that the requirement of a bifurcated trial means a full two-phase trial prior to any finding that a defendant is an habitual offender and subject to enhanced punishment. Further, a complete record of the second part of the trial must be made.
Seely, 451 So. 2d at 215.
¶38. The State argues first that the pen pack had been introduced into the court record as
an exhibit to the motion to amend Newberry’s indictment. However, in Young we reversed
an habitual offender sentence because the trial court relied upon sworn testimony elicited
during the guilt phase of the trial but not reintroduced during sentencing. The Young Court
held, in no uncertain terms, that evidence supporting an habitual offender sentence
enhancement, if introduced somewhere other than the sentencing hearing, must be
reintroduced. Young, 507 So. 2d at 50. Moreover, discovery responses and attachments to
filings submitted to the Court may not be considered at trial unless admitted into evidence.
Adams v. Allstate Ins. Co., 809 So. 2d 1169, 1173 (La. Ct. App. 2002) (“Evidence not
properly and officially offered and introduced shall not be considered, even if it is physically
placed in the record.”); Bobo v. Nationwide Ins. Co., 599 N.E.2d 844, 848 (Ohio Ct. App.
1991) (“Materials attached to a trial memorandum are not considered evidence and therefore
are not a part of the record to which the court may look for purposes of rendering
judgment.”); Donndelinger v. Donndelinger, 690 P.2d 366, 374 (Idaho Ct. App. 1984)
(Although filed with the court, answers to interrogatories “are not evidence unless offered
and admitted at trial” and “do not become incorporated into evidence in a trial merely by
19 allusion, indirect reference or physical presence before the court during the questioning of
a witness.”).
¶39. The State next contends that Newberry admitted to two prior convictions while
testifying on the day of the sentencing hearing. Newberry did admit to convictions in 1992
and 2002, but there is no evidence in the record of the sentencing hearing from him or any
other source concerning what the convictions were for or what sentences he received for
them. See Miss. Code Ann. § 99-19-81 (Rev. 2007) (to enhance the sentence, the convictions
must be for felonies and the defendant must have been sentenced to separate terms of one
year or more).
¶40. In Grayer v. State, the Court vacated a defendant’s sentence as an habitual offender
on the grounds that the State did not provide competent evidence to support such a sentence.
Grayer v. State, 120 So. 3d 964, 969 (¶ 19) (Miss. 2013). In that case, the State failed to
move to enter the certified copies of Grayer’s prior convictions into evidence, and the trial
court had nothing more to rely on other than a mere recitation of Grayer’s prior felony
convictions. Id. The Court held that the State failed to prove Gayer’s prior convictions by
competent evidence, which rose to the level of plain error. Id. While the instant case differs
from Grayer in that the pen packs are in the court file as an exhibit to a pretrial motion,
pursuant to our holdings in Young and Seely, inclusion elsewhere in the court file does not
suffice. Actual admission into evidence at sentencing is required.
¶41. I would reverse the habitual offender enhancement to Newberry’s sentence, as,
pursuant to Young and Grayer, the trial court may not rely on information not introduced as
20 evidence during the sentencing hearing when imparting an habitual offender sentence
enhancement.
III. Officer Scallorn’s Testimony
¶42. Finally, Newberry argued that the trial court erred in allowing Officer Scallorn to
testify at trial on whether, in his opinion, Newberry was under the influence. Specifically,
the State asked Officer Scallorn, “Based off of what you personally observed in your training
and experience, did this defendant pass the field sobriety test?” to which Officer Scallorn
responded, “No, sir.” Newberry appears to assert that Officer Scallorn would need to be
qualified as an expert to testify as to such matters. However, the question posed by the State
specifically asked Officer Scallorn to base his answer “off of what [he] personally observed
in [his] training and experience.” Officer Scallorn’s testimony clearly falls under Mississippi
Rule of Evidence 701, in that it is “(a) rationally based on [Officer Scallorn’s] perception .
. . , (b) helpful to the clear understanding of the testimony . . . , and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.” See
Miss. R. Evid. 701.
¶43. Additionally, the Court previously has addressed the issue of police officers testifying
as to the administration of field sobriety tests without being qualified as an expert witness.
In Young v. City of Brookhaven, the Court held that the testimony of an officer as to the
administration of a horizontal gaze nystagmus test – which is the same test as in the instant
case – was not so complex and technical as to require expert testimony. Young v. City of
Brookhaven, 693 So. 2d 1355, 1358-61 (Miss. 1997). See also Pulido v. City of Oxford, 991
So. 2d 1224, 1226-27 (¶¶ 11-19) (Miss. Ct. App. 2008); Graves v. State, 761 So. 2d 950,
21 954-55 (¶ 12) (Miss. Ct. App. 2000). Similarly, the trial court did not err in admitting the
testimony of Officer Scallorn.
¶44. In the absence of any rebuttal of the Strickland presumption by the defendant, I
disagree with the majority’s reversal of the defendant’s conviction as a result of the Rule 46
violation and would instead affirm the defendant’s conviction. However, I would reverse the
habitual offender sentence enhancement.
RANDOLPH, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.