John Patrick Woods v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00526-COA
JOHN PATRICK WOODS
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
12/01/1999
HON. TOMIE T. GREEN
HINDS COUNTY CIRCUIT COURT
HARVEY CHRISTOPHER FREELON
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
EDWARD J. PETERS
CRIMINAL - FELONY
BURGLARY-BUSINESS - SENTENCED TO SERVE 7
YEARS IN MDOC
AFFIRMED - 02/05/2002
2/26/2002
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
KING, P.J., FOR THE COURT:
¶1. This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi. John
Patrick Woods was found guilty of burglary of a business and was sentenced to serve a term of seven years
in the custody of the Mississippi Department of Corrections. Aggrieved, Woods has raised the following
issues on appeal:
I. Whether the trial court erred in not granting a continuance once it was discovered that the
assistant district attorney had represented Woods at a bond hearing regarding the same
matter.
II. Whether Woods received ineffective assistance of counsel.
FACTS
¶2. On August 27, 1998, Clarence Henderson was walking to work. As he approached the Wasco Town
Laundromat on Bailey Avenue at about 4:45 a.m., he noticed a man standing on the other side of the street
by a utility pole. Mr. Henderson noticed that this man was carrying a stick in his hand. As this man
approached him, Henderson reached in his pocket and pulled out a gun. The man then retreated back
across the street.
¶3. Henderson continued down the street, and saw another man standing in front of the Laundromat with
something in his hand. As Henderson walked on, he observed a third man standing on the corner at the end
of the Wasco Laundromat. After Henderson passed Wasco, he "heard a lot of glass breaking." As this
occurred, Henderson realized that he knew one of the men standing in front of the building. That person
was John P. Woods. As Henderson looked back, he saw Woods knock the glass out. Henderson then
knocked on the door of a house near the Laundromat, but no one responded. Henderson went to a nearby
gas station and called the police.
¶4. An officer responding to the burglary observed the suspects west of the store carrying something. Upon
being stopped, the suspects "dropped the boxes and just took off running." The suspects were not
apprehended. The recovered property was released to Mr. Hawkins, the owner of the Laundromat later
that morning.
¶5. In September 1998, Woods was indicted for business burglary. In January 1999, the trial judge set the
bond for Woods, who was then represented by an assistant public defender, Eleanor F. Peterson. The trial
in this matter began on December 1, 1999, and Woods was then represented by attorney E. Michael
Marks. Woods was found guilty of business burglary and was sentenced to serve seven years in the
custody of the Mississippi Department of Corrections.
ISSUES AND ANALYSIS
I.
Whether the trial court erred in not granting a continuance once it was discovered that the
assistant district attorney had represented Woods at a bond hearing regarding the same
matter.
¶6. Woods contends that the trial court erred in not granting a continuance. He argues that once the court
discovered that then Assistant District Attorney Eleanor F. Peterson, as an assistant public defender, had
represented Woods at a bond hearing in this matter, a continuance should have been granted.
¶7. The decision to grant a continuance is left to the sound discretion of the trial judge. Farris v. State, 764
So. 2d 411 (¶45) (Miss. 2000). The denial of a continuance will not be grounds for reversal unless it is
shown to have resulted in manifest injustice. Id.
¶8. The trial judge noticed an order for bond with Attorney Peterson's signature in Woods' file. Outside the
presence of the jury, she questioned the State regarding Attorney Peterson's role in this matter. The
testimony regarding this matter is as follows:
BY THE COURT: Ms. Peterson, I was looking in the file and I don't know whether you've looked
over it or not. I have the initial bond setting, and it says presented by you with reference to Mr.
Woods. Do you recall him? He indicates that you were his attorney at some time.
BY MS. PETERSON: No.
BY THE COURT: You don't recall him?
BY MS. PETERSON: No.
BY MS. HAYNES: Your Honor, the State would ask that Ms. Peterson be excused from the case.
She has not participated. In fact, [she] just joined me on the case, sitting in this morning.
BY THE COURT: I know that she just switched over. When I saw this, I thought that it might -- I'll
just let you look at it just so that you can see what I'm talking about and I know from time to time just
an attorney in the office will agree to the bond.
BY MS. PETERSON: At one time I was the only attorney assigned to this courtroom. Everything
was on mine [sic]. There's nothing about the case that even rings any bells when I read the discovery
this morning.
BY THE COURT: Why don't we have Ms. Peterson excused unless the defendant wishes to agree
that Ms. Peterson was not his attorney in this particular case. Or would you like to discuss it with your
client? Because he just indicated that he remembered Ms. Peterson.
BY MS. HAYNES: Let me state for the record, your Honor, Ms. Peterson has not talked to any of
the witnesses. I've talked with all of the witnesses, and I just asked her this morning to sit in on the
case. So she did not review the case until this morning.
¶9. The court determined that having represented Woods for purposes of obtaining a bond in this case it
was inappropriate for Peterson to then participate in its prosecution. The court determined that while
Peterson's participation was inappropriate and excused her, there was no indication that she had gained
from the defendant nor shared with the prosecution any information which might compromise Woods'
defense. That finding is supported by the record before this Court. Having reviewed the evidence in the
record, this Court affirms the ruling made by the trial court.
II.
Whether Woods received ineffective assistance of counsel.
¶10. Woods contends that he received ineffective assistance of counsel. He alleges four instances of
ineffective assistance: (1) his attorney sat at the State's table while the State questioned its witness which
prejudiced his defense; (2) his attorney failed to request an identification hearing and failed to cross-examine
Mr. Henderson regarding his identification of Woods; (3) his attorney asked about past crimes which he
had committed; and (4) his attorney failed to give an opening statement.
¶11. To prevail on an ineffective assistance of counsel claim, Woods must demonstrate that: (1) his
counsel's performance was deficient, and (2) this deficient performance prejudiced his defense. Wardley v.
State, 760 So. 2d 774 (¶27) (Miss. Ct. App. 1999). Woods must prove that there is a reasonable
probability that, but for the errors of his counsel, the verdict of the jury would have been different. Id.
¶12. At the beginning of the trial, Attorney Marks, counsel for Woods, sat at the State's table. After the
jury was excused for lunch, the trial judge questioned Attorney Marks about his seating arrangement.
Attorney Marks stated:
BY MR. MARKS: I'm a little bit hard of hearing, Judge, and unless I see their lips moving -- I can't
see the witnesses faces from here.
BY THE COURT: Well, you can move that table up and sit your chair at the end of that table. But
I'm not accustomed to defense counsel sitting at the table with the State. So you can pull the table
forward to a point that you can see the witness. But the Court is not going to allow you to sit at the
table with the State.
BY MR. MARKS: Very well, your Honor.
BY THE COURT: It can be confusing to the jury. Anything further at this point?
The trial judge corrected this act prior to the conclusion of the trial.
¶13. In his second allegation of ineffective assistance, Woods contends that his defense was prejudiced
because his attorney failed to request an identification hearing and failed to cross-examine Mr. Henderson
regarding his identification testimony. The transcript does reflect that Woods' attorney briefly questioned
Mr. Henderson regarding his knowledge of where he saw Woods, but the transcript does not reflect that
Woods' attorney requested an identification hearing. Normally, this Court does not second guess an
attorney on matters of strategy. Scott v. State, 742 So. 2d 1190 (¶14) (Miss. Ct. App. 1999). Woods has
not provided this Court with sufficient reason to do so now.
¶14. Woods' third claim of ineffective assistance occurred when his attorney asked him about past crimes
which he committed. The transcript reveals the following testimony:
Q. John, have you been in trouble before in your life? Have you ever been convicted of crimes?
A. No.
Q. Weren't you caught one time with some marijuana?
A. Yes.
Q. Or some dope?
A. Yes.
Q. How old were you at that time?
A. Well, I was 18 when I got caught with dope, cocaine, crack.
Q. Have you ever been convicted of any other crime?
A. No.
While the basis for this line of questioning by Woods' attorney is not made clear during trial, with respect to
the overall performance, counsel's choice of whether or not to file certain motions, call certain witnesses,
ask certain questions, or make certain objections falls within the ambit of trial strategy. Scott v. State, 742
So. 2d 1190 (¶14) (Miss. Ct. App. 1999).
¶15. Woods' final allegation of ineffective assistance was that his attorney failed to give an opening
statement. Opening statements are not mandatory and are often strategic in nature. Robinson v. State, 784
So. 2d 966 (¶11) (Miss. Ct. App. 2000). Therefore, Woods' attorney was not required to present an
opening statement.
¶16. There exists a rebuttable presumption that counsel is competent. Ratliff v. State, 752 So. 2d 416
(¶6) (Miss. Ct. App. 1999). If a defendant is to prevail on this claim, he must affirmatively rebut this
presumption. Id. at (¶6). Upon review of the above allegations of ineffective assistance, we cannot say that
counsel's trial strategy was deficient to such an extent which would constitute prejudice to Woods' defense.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF
HINDS COUNTY OF CONVICTION OF BURGLARY OF A BUSINESS AND SENTENCE OF
SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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