Wynn v. State

964 So. 2d 1196, 2007 WL 2472553
CourtCourt of Appeals of Mississippi
DecidedSeptember 4, 2007
Docket2006-KP-00776-COA
StatusPublished
Cited by12 cases

This text of 964 So. 2d 1196 (Wynn 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
Wynn v. State, 964 So. 2d 1196, 2007 WL 2472553 (Mich. Ct. App. 2007).

Opinion

964 So.2d 1196 (2007)

Felix WYNN a/k/a Creep a/k/a Cadillac, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-KP-00776-COA.

Court of Appeals of Mississippi.

September 4, 2007.

*1198 Felix Wynn, Appellant, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before MYERS, P.J., ISHEE and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. On April 25, 2006, Felix Wynn was convicted as an habitual offender by an Oktibbeha County Circuit Court jury on two counts of sale of cocaine. Wynn appeals his conviction and sentence pro se and asks this Court to consider whether he was denied the effective assistance of counsel; whether the circuit court erred in "overlooking" the defense of entrapment; whether the circuit court erred in denying his motion for judgment notwithstanding the verdict or new trial; whether the indictment charging him was defective; and whether he was denied his right to appeal. Finding no error, we affirm his sentence and conviction.

FACTS

¶ 2. Wynn was arrested and convicted as a result of two separate sales of crack cocaine to Charles Lamar Clinton, a confidential informant, who was working with the Starkville Police Department. On November 6, 2000, a pre-buy meeting was held between Clinton and Lieutenant Gerald Davis, an employee of the Starkville Police Department in charge of narcotics. At this meeting, the details of the proposed transaction were discussed and Wynn was determined to be the target. Lieutenant Davis searched Clinton's person and vehicle, wired Clinton for sound and video, and gave him one hundred dollars to be used for the purchase.

¶ 3. Clinton left the meeting at about 4:00 p.m. and proceeded to Wynn's home. Upon his arrival, Clinton went inside the home with Wynn and told him that he wanted to buy one hundred dollars worth of cocaine. Clinton testified that Wynn then reached inside his cabinet and took out a plastic baggy, opened it up, and handed him one hundred dollars worth of cocaine wrapped in a paper napkin. Clinton handed Wynn one hundred dollars and left the house to meet Lieutenant Davis at a pre-arranged location, where Clinton turned the cocaine over to Lieutenant Davis, who placed the drugs in an evidence bag. Lieutenant Davis then reviewed the video and noticed that the audio was lost and the video "was shooting a little low." The video recorded the transaction; however, it did not capture the face of the seller. The video did clearly depict the seller's mid-section as well as the clothing worn by the individual. Clinton identified Wynn as the seller. Nevertheless, Lieutenant Davis, unsatisfied with the quality of the video from the transaction, decided to make a second purchase from Wynn.

¶ 4. Lieutenant Davis gave Clinton another one hundred dollars and Clinton returned to Wynn's house for a second purchase around 5:00 p.m. Clinton again gave Wynn one hundred dollars in exchange for *1199 cocaine and then returned to the meeting place where he again turned the drugs over to Officer Davis. Officer Davis and Clinton reviewed the video of the second transaction. In viewing this video, they were able to clearly observe the clothing of the seller as well as his face. Both men identified Wynn as the seller.

¶ 5. Brandi Goodman, a forensic scientist employed with the Mississippi Crime Laboratory, later confirmed that the substance obtained in the first purchase contained cocaine with a total weight of 0.76 grams. Likewise, Jamie Johnson, another forensic scientist employed by the Mississippi Crime Laboratory, determined that the substance obtained in the second transaction contained cocaine with a weight of 0.56 grams.

¶ 6. On July 19, 2001, Wynn was indicted for two counts of sale of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev.2005).[1] Trial was held on April 25, 2006. The evidence against Wynn consisted of the video recording of both transactions and the testimony of Clinton, Lieutenant Davis, Goodman, and Johnson. Wynn did not testify, nor did he offer any other evidence. The record reflects that, at the close of the State's case-in-chief, Wynn was advised of his right to testify, whereafter, Wynn's attorney made the following statement to the court: "Your honor, my client and I have discussed. We will not be presenting any evidence. We will be resting." The jury returned a verdict of guilty on both counts of sale of cocaine. Wynn was then remanded to the custody of the sheriff to await sentencing.

¶ 7. On April 26, 2006, the State moved to amend the indictment to charge Wynn as an habitual offender under Mississippi Code Annotated section 99-19-81 (Rev 2000).[2] On the same day, a hearing was held, at which, the State's motion to amend the indictment was sustained, and Wynn was adjudicated as both an habitual offender within the meaning of Mississippi Code Annotated section 99-19-81 and a prior violator of the Mississippi Uniform Controlled Substances Law pursuant to Mississippi Code Annotated section 41-29-147.[3] Wynn was then sentenced as an habitual offender to sixty years in the Mississippi Department of Corrections on each count, to run consecutively for a total of 120 years, with zero years suspended or reduced, without the possibility of parole or probation. On May 1, 2006, Wynn filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict, which was overruled by the circuit court.

DISCUSSION

1. Ineffective Assistance of Counsel

¶ 8. Wynn argues that he received ineffective assistance of counsel. He raises this issue for the first time on appeal. Specifically, Wynn claims that his attorney *1200 should have requested pretrial discovery, investigated the circumstances and laws surrounding the case, and interviewed potential witnesses. Wynn also suggests that his attorney's performance was ineffective because he received an enhanced sentence.

¶ 9. 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) (citation omitted)). Our 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, "[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).

¶ 10. In the instant case, there is no stipulation made by the parties as to the record. Our review then is focused to determine whether the record affirmatively demonstrates that Wynn was denied the effective assistance of counsel.

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

Related

William Allen Carpenter v. State of Mississippi
Court of Appeals of Mississippi, 2024
Rickarius Kimble v. State of Mississippi
270 So. 3d 940 (Court of Appeals of Mississippi, 2018)
Dexter Johnson v. State of Mississippi
196 So. 3d 973 (Court of Appeals of Mississippi, 2015)
Sanders v. State
103 So. 3d 775 (Court of Appeals of Mississippi, 2012)
Evans v. State
93 So. 3d 62 (Court of Appeals of Mississippi, 2012)
McCullough v. State
47 So. 3d 1206 (Court of Appeals of Mississippi, 2010)
Jackson v. State
42 So. 3d 613 (Court of Appeals of Mississippi, 2010)
McLaurin v. State
31 So. 3d 1263 (Court of Appeals of Mississippi, 2010)
Ross v. State
16 So. 3d 47 (Court of Appeals of Mississippi, 2009)
Ravencraft v. State
989 So. 2d 437 (Court of Appeals of Mississippi, 2008)
Page v. State
987 So. 2d 1035 (Court of Appeals of Mississippi, 2008)
Harris v. State
979 So. 2d 721 (Court of Appeals of Mississippi, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 1196, 2007 WL 2472553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynn-v-state-missctapp-2007.