Ruby Young v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-02171-COA
RUBY YOUNG A/K/A RUBY DELL YOUNG A/K/A
RUBY DELL FAUCETTE A/K/A RUBY DELL
ROBERSON FAUCETTE YOUNG
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
6/25/2003
HON. ROBERT WALTER BAILEY
LAUDERDALE COUNTY CIRCUIT COURT
JAMES A. WILLIAMS
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
E.J. MITCHELL
CRIMINAL - FELONY
THE DEFENDANT WAS CONVICTED OF
COUNT I- ACCESSORY-AFTER-THE-FACT
AND SENTENCED TO FIVE YEARS WITH
TWO YEARS SUSPENDED AND THREE
YEARS OF POST-RELEASE SUPERVISION
AND FINE OF $1,000; COUNT II - POSSESSION
OF A FIREARM BY A CONVICTED FELON
AND SENTENCED TO THREE YEARS; COUNT
III - POSSESSION OF STOLEN PROPERTY
AND SENTENCED TO THREE YEARS, ALL IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH
SENTENCES TO RUN CONCURRENTLY
AFFIRMED IN PART, REVERSED AND
RENDERED IN PART. 06/28/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KING, C.J., CHANDLER AND BARNES, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
A Lauderdale County jury found Ruby Dell Roberson Faucette Young guilty on three counts:
accessory-after-the-fact of the crime of possession of marijuana with intent to distribute, possession
of a firearm by a felon, and possession of stolen property. Young appeals from these convictions,
asserting (1) that her indictment insufficiently alleged the crime of accessory-after-the-fact; (2) that
the evidence supporting her conviction on each count was insufficient; (3) that the erroneous
admission of hearsay testimony denied her Sixth Amendment right of confrontation; (4) that she was
denied a fair trial due to the State's inflammatory argument; (5) that she was denied a fair trial
because the State exacted a promise from the jury that if certain evidence was proven the jury would
return a guilty verdict; and (6) that she received ineffective assistance of counsel.
¶2.
We find that there was insufficient evidence supporting Young's conviction of possession
of stolen property. Therefore, we vacate her conviction of that crime. We find that Young's other
issues are without merit, and affirm her convictions of accessory-after-the-fact and possession of a
firearm by a felon.
FACTS
¶3.
In the summer of 2001, Lauderdale County Deputy Sheriff Joe White and another deputy
went to Young's home to serve Young's son, Jason Roberson, with a bench warrant dated May 31,
2001. The bench warrant concerned Roberson's failure to appear for arraignment on a charge of
possession of marijuana with intent to distribute. Young told deputies that Roberson was not there.
Young consented to a search of the premises for Roberson, who was not found. Before departing,
Deputy White warned Young that she would be charged with "harboring" if she gave Roberson
sanctuary, and told her to dial 911 in the event Roberson appeared. The next day, Deputy White
2
returned to Young's residence, again looking for Roberson. Young told Deputy White that
Roberson had just left, but that she had called 911 as instructed.
¶4.
In February 2002, Young moved to a trailer. On February 15, 2002, law enforcement
received information that Roberson was at Young's trailer. Several deputies went to the trailer.
Roberson's car was parked outside. Deputy John Calhoun knocked and announced, but no one came
to the door. The trailer's windows were open and he could hear people moving around inside and
whispering. He called Roberson's cell phone number and heard a phone ringing contemporaneously
inside the trailer. Deputies obtained a warrant to search the trailer for Roberson. While waiting for
the warrant, Deputy Michael Street positioned himself near a rear window of the trailer. He heard
people moving just inside. When the warrant arrived and deputies entered the trailer, Deputy Street
found Young, Roberson, and Roberson's girlfriend in a bed in a rear bedroom. The time that had
elapsed between the deputies' initial arrival and their entrance of the trailer was approximately one
hour. Subsequently, Roberson was convicted of possession of marijuana with intent to distribute.
¶5.
In the course of arresting Roberson, the deputies observed a substance appearing to be
marijuana on a coffee table. The presence of marijuana in plain view resulted in a search of Young's
residence. The deputies discovered a handgun in Young's bedroom. They subsequently discovered
that the handgun had been reported stolen. The handgun belonged to Young’s former husband and
had a resale value of between $280 and $300.
¶6.
The trial occurred on May 29, 2002. Young testified that, in February 2002, she had thought
Roberson's charge had been dismissed. She based this assumption on gossip to the effect that all
charges brought against numerous citizens pursuant to the activities of a certain narcotics officer had
been dismissed due to the officer's misconduct. Since Roberson was apprehended by that officer,
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Young assumed his charge had been dismissed. However, Young admitted that she had never
ceased worrying about the charge against Roberson. On direct examination, Young stated that
Roberson had arrived on the night of February 14 and that she had thought he was just passing
through to see his girlfriend, who lived with Young. On cross-examination, Young testified that she
had been under the influence of narcotic medication due to a recent back surgery and had not been
aware that Roberson was in her trailer until the deputies apprehended Roberson. Young stated that,
due to the medication, she had failed to hear the officers knocking for some time, and had finally
stumbled to the door and placed her hand on the doorknob at the moment the deputies entered the
trailer.
¶7.
Regarding the handgun, Young testified that it belonged to her former husband and that she
was not aware that she still had it until the night before her arrest when she discovered it packed in
a box. Young testified that she had planned to return the gun to her ex-husband. While Young
admitted that she knew the gun was in her possession the night before her arrest, she denied having
stolen the gun or having received it with knowledge of its having been stolen. Young admitted that
she was a felon, having been convicted in 1991 of accessory before the fact of delivery of over an
ounce of marijuana and that she had been sentenced to five years with four years suspended.
¶8.
The jury found Young guilty on all three counts. On count I, the court sentenced Young
to five years, with three years to serve, two years suspended, and three years on post-release
supervision, fined her $1,000 and court costs of $248, and ordered her to participate in a long term
alcohol and drug treatment program. On counts II and III, the court sentenced Young to three years
each, with the sentences for all three counts to run concurrently. The circuit court denied Young's
motion for a JNOV or a new trial.
4
LAW AND ANALYSIS
I. WAS COUNT ONE OF THE INDICTMENT SUFFICIENT TO OBTAIN AN Accessory-afterthe-fact CONVICTION?
¶9.
Young was convicted of accessory-after-the-fact to possession of marijuana with intent to
distribute. Young asserts that the indictment charged her with attempted accessory-after-the-fact,
not with the completed crime of accessory-after-the-fact. Therefore, Young argues, the indictment
was defective because it failed to afford her proper notice of the crime of which she was convicted.
¶10.
This Court recognizes that "one accused of a crime is entitled to know the specific nature of
the allegations against him so that he can prepare his defense, rather than be left guessing as to what
specific activity the State contends is a violation of the criminal statute." White v. State, 851 So. 2d
400, 403 (¶5) (Miss. Ct. App. 2003). The crime of accessory-after-the-fact is codified at Mississippi
Code Annotated § 97-1-5 (Rev. 2000). The statute provides that a person is guilty as an accessoryafter-the-fact if she has "concealed, received, or relieved any felon, or [has] aided or assisted any
felon, knowing that such person has committed a felony, with intent to enable such felon to escape
or to avoid arrest, trial, conviction or punishment . . . ." Id. The portion of the indictment charging
Young with accessory-after-the-fact provided, in pertinent part:
RUBY DELL ROBERSON FAUCETTE YOUNG AKA RUBY DELL
ROBERTSON FAUCETTE YOUNG in said County and State, on or about the 15th
day of February, A.D., 2002, did then and there wilfully, unlawfully, and feloniously
conceal or receive or aid or assist JASON ROBERSON knowing that he had
committed the felony offense of THE CRIME OF POSSESSION OF MARIJUANA
WITH INTENT in an attempt to assist JASON ROBERSON to evade detection
and/or capture, in violation of Mississippi Code Annotated Section 97-1-5 . . . .
¶11.
The language of the indicted offense substantially tracked the statutory definition of the
crime. Young argues that the language stating that she acted "in an attempt to assist Jason Roberson
to evade detection and/or capture" signified that the crime charged was attempted accessory-after5
the-fact. This argument is without merit. Plainly, the indictment alleged a completed act, which was
that Young concealed or received or aided or assisted Roberson. The language stating that Young
acted "in an attempt to assist Roberson" was a description of the mental state required for a
conviction of accessory-after-the-fact, which is that the defendant have acted with "intent to enable"
a felon "to escape or avoid arrest, trial, conviction or punishment." Miss. Code Ann. § 97-1-5 (Rev.
2000). The indictment for accessory-after-the-fact properly charged Young with the crime for which
she was convicted.
II. DID THE TRIAL COURT ERRONEOUSLY ADMIT PREJUDICIAL HEARSAY?
¶12.
Young argues that, on two instances, critical hearsay was introduced at trial, over counsel’s
objection, which violated her right to confront witnesses secured by the Confrontation Clause of the
Sixth Amendment. The confrontation clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. Const.
amend. VI. The first instance in which alleged hearsay came into evidence was during Deputy
White's testimony about his contact with Young in June 2001, when he instructed Young to call 911
if Roberson appeared. The following exchange occurred:
Q. When, if you recall, did you return, if you did return, to Ms. Young's house?
A. We came back the next day. And she stated that he was there and she tried calling
911, but we never got that call.
Q. Who—how did you verify that information?
A. Through dispatch. There was no record of it.
Q. You or Deputy Pickett call—
A. Deputy Pickett did.
By Mr. Capers: We object to hearsay, Judge.
6
By the Court: He already answered it.
¶13.
Young contends that Deputy White's statement that Deputy Pickett checked with dispatch
and was told there was no record of a 911 call from Young was inadmissible hearsay. We agree.
Hearsay is an out of court statement offered for its truth. M.R.E. 801 (c). Deputy White's statement
that dispatch had no record of Young's 911 call was offered to show that no call from Young was,
in fact, received by dispatch. Moreover, Deputy White testified that Deputy Pickett told him
dispatch had no record of the call. Deputy White's testimony about what Deputy Pickett told him,
that dispatch had no record of the call, was likewise offered for its truth. Therefore, Deputy White's
testimony was double hearsay. It did not fall within a hearsay exception that would render it
admissible. M.R.E. 805. The trial court erred by failing to sustain Young's objection to the hearsay
testimony.
¶14.
The State contends that Young waived this contention by failing to make a contemporaneous
objection. We disagree. “The rule governing the time of objection to evidence is that it must be
made as soon as it appears that the evidence is objectionable, or as soon as it could reasonably have
been known to the objecting party, unless some special reason makes a postponement desirable for
him which is not unfair to the proponent of the evidence.” Sumner v. State, 316 So. 2d 926, 927
(Miss. 1975) (citing Williams v. State, 171 Miss. 324, 327, 157 So. 717, 717 (1934)). Certainly,
Young's objection was sufficiently close in time to Deputy White's hearsay testimony to have
preserved the error for appellate review.
¶15.
Having found error in the admission of the hearsay testimony, we proceed to determine
whether the error requires reversal. For error to be predicated on the admission or exclusion of
evidence, the erroneous ruling must have affected a substantial right of a party. M.R.E. 103(a).
7
Further, confrontation clause violations are subject to harmless error analysis. An otherwise valid
conviction will not be set aside for a constitutional error "if the reviewing court may confidently
say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt."
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Whether such an error is harmless in a particular case depends upon a host of factors,
all readily accessible to reviewing courts. These factors include the importance of
the witness' testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution's case.
Id. Applying this analysis, our supreme court recently found that the erroneous admission of a
statement of a non-testifying co-defendant was harmless beyond a reasonable doubt due to the
overwhelming weight of the evidence against the defendant. Clark v. State, 891 So. 2d 136, 142
(¶30) (Miss. 2004).
¶16.
The erroneously admitted hearsay concerned Young's charge of accessory-after-the-fact.
The hearsay testimony that dispatch records showed no call was received from Young contradicted
Young's testimony that she had called 911 as instructed by Deputy White. This hearsay was
probative of Young's intent to aid Roberson in evading arrest in June 2001 because, if she indeed
had called 911 upon his appearance at her residence, it would have been difficult to infer that she
intended to assist Roberson at that time. However, Young was not arrested and charged based upon
the June 2001 incident. Rather, she was arrested on February 15, 2002, after Roberson was found
inside her trailer. Though the 911 call issue was occasionally revisited by both parties throughout
the trial, the evidence of Young's intent, or lack thereof, to aid Roberson in June 2001 was not
especially probative of her intent, or lack thereof, to aid Roberson seven months later. Therefore,
8
the issue of whether or not Young had called 911 in June 2001 was of relatively low importance in
the prosecution's case against Young.
¶17.
There was overwhelming evidence that, on February 15, 2001, Young's conduct conformed
with the elements of the crime of accessory-after-the-fact. To secure a conviction for accessoryafter-the-fact, the State must prove that a completed felony was committed, that the accused
concealed, received, aided or assisted the felon, with knowledge that the person had committed a
felony, and that the accused rendered aid with the intent to enable the felon to escape or avoid arrest,
trial, conviction or punishment. Harris v. State, 290 So. 2d 924, 924 (Miss. 1974). The evidence
of Roberson's conviction of possession of marijuana with intent to distribute showed that he had
completed a felony. Young allowed Roberson to stay overnight at her trailer. She did not answer
the door after deputies knocked and announced. Young failed to emerge during the entire time,
approximately one hour, that the deputies surrounded her trailer. While outside the trailer, Deputy
Street heard people moving in the area of the rear bedroom. Deputy Street found Young, Roberson,
and Roberson's girlfriend in a bed in the rear bedroom. Young was conscious and communicative.
This evidence conflicted with Young's testimony that she slept through the deputies' knocking and
was at the door when the deputies entered the trailer.
¶18.
Further, there was testimony that Young knew Roberson was a felon. Young stated that,
when the bench warrant issued, she had to pay Roberson's appearance bond. Young admitted she
had never ceased worrying about Roberson's charge and her assumption the charge had been
dropped was based upon gossip. Deputy White testified that he informed Young twice in June 2001
that there was an outstanding bench warrant for Roberson. Deputy Calhoun stated that he informed
Young on two occasions between May 31, 2001 and February 15, 2002 that Roberson was wanted
9
by the sheriff's department. The erroneous admission of the hearsay statement that no 911 call had
been recorded in June 2001 was harmless beyond a reasonable doubt due to the low importance of
the statement and to the overwhelming evidence that, on February 15, 2002, Young knew Roberson
was a felon seeking to avoid justice and that she aided his avoidance of justice. This issue is without
merit.
¶19.
Young also argues that prejudicial hearsay was introduced during Deputy Calhoun's
testimony. Deputy Calhoun testified that, on February 14, 2002, he and Deputy Ricky Presson had
gone to Young's former address "[a]nd through some other information from a person we had talked
to, obtained information that the vehicle Mr. Roberson was traveling in now was found out at the
address of where she had moved to." Young objected to hearsay, but the objection was overruled.
¶20.
Deputy Calhoun's statement of what an informant told him was not offered to show
Roberson's car was, in truth, at Young's trailer, but only to show how Deputy Calhoun came to
believe that Roberson might be found at Young's trailer on February 15, 2002. The statement was
not hearsay. "To the extent necessary to show why an officer acted as he did, an informant's tip is
admissible." Hill v. State, 865 So. 2d 371, 380 (¶36) (Miss. Ct. App. 2003). This issue is without
merit.
III. WAS THE EVIDENCE SUPPORTING YOUNG’S CONVICTION OF ACCESSORYAFTER-THE-FACT SUFFICIENT?
¶21.
Young contends that insufficient evidence supported her conviction of accessory-after-the-
fact and, therefore, the court should have sustained her motion for a JNOV. A motion for a JNOV
challenges the sufficiency of the evidence of each element of the offense. Edwards v. State, 469 So.
2d 68, 70 (Miss. 1985). In reviewing the denial of a JNOV, we view all of the evidence in the light
most favorable to the State and give the State the benefit of all favorable inferences that reasonably
10
may be drawn from the evidence. Id. Considering the evidence in this manner, we will affirm if
"any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt." Bush v. State, 895 So. 2d 836, 846 (¶16) (Miss. 2005).
¶22.
Viewing the evidence in the light most favorable to the State, the evidence was sufficient to
sustain Young's conviction of accessory-after-the-fact. As discussed above in Issue II, there was
copious evidence that Roberson had committed a felony, that Young knew Roberson was wanted
by authorities, and that Young aided Roberson in evading justice by harboring him and concealing
him from law enforcement. Based on this evidence, a rational jury could have found Young guilty
of accessory-after-the-fact beyond a reasonable doubt. This issue is without merit.
IV. WAS THE EVIDENCE SUPPORTING YOUNG'S CONVICTION OF POSSESSION OF A
FIREARM SUFFICIENT?
¶23.
Mississippi Code Annotated § 97-37-5 (1) (Rev. 2000) makes it a crime for "any person who
has been convicted of a felony . . . to possess any firearm . . . ." Young argues that the evidence that
she possessed the handgun was insufficient. Young admitted that, the night before her arrest, she
discovered her ex-husband's handgun while unpacking a box and placed it on the floor, where it was
discovered by the deputies. She stated that her ex-husband had been awarded the handgun in a
divorce decree and that she intended to return it to her ex-husband at a later time.
¶24.
Young did not own the trailer, she was a tenant. Nor did Young have exclusive possession
of the trailer, because she shared it with Roberson's girlfriend. When reviewing the sufficiency of
the evidence of possession, "in cases where the defendant is not the owner of the premises or in
exclusive possession, then the State must prove some 'competent evidence connecting him with the
contraband.'" Gavin v. State, 785 So. 2d 1088, 1093 (¶17) (Miss. Ct. App. 2001) (quoting Powell
v. State, 355 So. 2d 1378, 1379 (Miss. 1978)). To fulfill this requirement, there must be evidence
11
that the defendant was intentionally and consciously in possession of the weapon on the day
charged.
¶25.
We find that there was sufficient evidence fulfilling the element of possession. Young,
herself, unpacked the gun from the box and placed it on the floor beside her bed, where it remained
until the moment of her arrest. From this evidence, a reasonable jury could infer that Young
consciously exercised dominion and control of the handgun. See id. at 1094 (¶24). There was
evidence, including Young's own admission, that she had been previously convicted of a felony.
Therefore, there was sufficient evidence that Young was a felon in possession of a firearm.
V. WAS THE EVIDENCE SUPPORTING YOUNG’S CONVICTION OF POSSESSION OF
STOLEN PROPERTY SUFFICIENT?
¶26.
Young attacks the sufficiency of the evidence supporting her conviction of possession of
stolen property. "A person commits the crime of receiving stolen property if he intentionally
possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having
reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained
or disposed of with intent to restore it to the owner." Miss. Code Ann. § 97-17-70 (1) (Supp. 2003).
Young was convicted under subsection 97-17-70 (3) (Rev. 2000), which, at the time of Young's
conviction, provided an enhanced penalty if the value of the stolen property exceeded $250. While
this crime was referred to at trial as "possession of stolen property," the statute under which Young
was indicted and convicted reveals that the crime is correctly referred to as "receiving stolen
property." This Court will refer to the crime as such throughout our discussion of the sufficiency
of the evidence.
¶27.
The following facts constituted the totality of the evidence pertinent to the charge of
receiving stolen property. Deputy Calhoun testified that he found the handgun on the floor next to
12
Young's bed. Deputy Calhoun discovered that the handgun had been reported as having been stolen
from the Memphis Police Department. But, further investigation led to his conclusion that the legal
owner of the handgun was Ricky Young, Young's ex-husband. Deputy Calhoun testified that the
handgun had been awarded to Ricky in the decree divorcing the Youngs.1 The decree ordered
Young to return the gun to Ricky if she found it. Deputy Calhoun stated that, later, Ricky had been
advised to report the gun as stolen. Apparently, Ricky did so.
¶28.
Young denied having known that the gun was stolen property. Young testified that she and
Ricky had separated in 1999 and that she had last seen the handgun underneath the seat of Ricky's
car. She had been unaware that the gun was amongst her belongings until she found it in a box
while unpacking on the night before her arrest. On direct examination, she stated that she had
intended to return the gun to her ex-husband to comply with the court order, but had not taken any
steps to do so because she had no way to contact anyone about the gun. Young said that, when she
unpacked the gun, her telephone had not yet been connected and she could not drive due to her back
medication. On cross-examination, Young admitted to having lied about lacking immediate means
to contact anyone about the gun because she could have asked Roberson's girlfriend to drive her to
a telephone.
¶29.
Upon Young's motion for a directed verdict, the State argued that the evidence was sufficient
to enable the charge of receiving stolen property to go to the jury. The State pointed out that it had
established that Ricky was the lawful owner of the handgun. The State contended that Young had
1
As there was no error assigned on appeal, we do not address the issue of whether Deputy
Calhoun's testimony contained inadmissible hearsay.
13
retained possession of the handgun knowing that it was not hers and that it was Ricky's property.
The State renews these arguments on appeal.
¶30.
The crime of receiving stolen property requires proof beyond the fact that the defendant was
in possession of property reported as stolen. The person must intentionally possess, receive, retain
or dispose of property stolen by another with knowledge or upon reasonable grounds to believe the
property has been stolen. Washington v. State, 726 So. 2d 209, 212-13 (¶10) (Miss. Ct. App. 1998).
If the person performs these acts with the intent to restore the property to its owner, no crime has
been committed under the statute. Miss. Code Ann. § 97-17-70 (1) (Supp. 2003). Moreover, a
person cannot feloniously receive what he, himself, has stolen. "It is elementary law that one who
steals property cannot be convicted of receiving, concealing or aiding in concealing the property
stolen." Hentz v. State, 489 So. 2d 1386, 1389 (Miss. 1986). This is because the statute punishing
persons in receipt of stolen property is not intended as a double penalty for theft crimes, but to
punish those who "make theft easy or profitable." Id. In Hentz, the supreme court reversed the
appellant's conviction of receiving stolen property because the evidence demonstrated that the
appellant had stolen the property at issue and, therefore, was guilty of grand larceny, not receiving
stolen property. Id. The State acknowledges this law in its brief.
¶31.
Viewing the evidence in the light most favorable to the State with all reasonable inferences
in favor of the verdict, the evidence was insufficient to sustain Young's conviction of receiving
stolen property. There was no evidence that a third person stole the gun from Ricky and that Young
had obtained possession of it from that person. Rather, the State's entire case rested upon the jury's
conclusion that Young knowingly took the gun from Ricky or unlawfully retained it after her
divorce. Since the evidence was that Young, herself, took the property at issue, the State's case
14
pointed to Young's guilt of a theft crime. But, Young was charged with receiving a stolen handgun,
not with theft of the handgun. "[W]here a defendant is charged with receiving stolen goods, and the
evidence shows that he is guilty of the larceny of the goods in question, he cannot be convicted of
the offense with which he is charged." Id. (citing Manning v. State, 129 Miss. 179, 181, 91 So. 902,
903 (1922)); see also Williams v. State, 595 So. 2d 1299, 1303 (Miss. 1992) (stating, "the fact that
one has stolen the property at issue is generally adequate to require a directed verdict of acquittal
should that person be charged with receipt of stolen property). In the instant case, there was no
evidence that Young received the gun from some third person who had stolen it. Rather, the
evidence was that Young, herself, whether feloniously or not, took the gun from its lawful owner.
Thus, the evidence that Young knowingly received stolen property was insufficient. We vacate
Young's conviction of possession of stolen property.
VI. DID THE STATE ENGAGE IN IMPROPER AND INFLAMMATORY ARGUMENT?
¶32.
Young argues that the State engaged in egregious and inflammatory actions which denied
her a fair trial. Specifically, Young avers that the court should not have admitted Roberson's entire
criminal history and the court file on Young's 1991 felony conviction of accessory before the fact
to delivery of over an ounce, but less than a kilo, of marijuana. Young also argues that the
prosecution's closing argument was inflammatory.
¶33.
During the trial, the State proffered a composite exhibit concerning Roberson's conviction
of possession of marijuana with intent to distribute. The exhibit consisted of certified copies of
Roberson's indictment, petition for appointment of counsel, petition to enter a guilty plea, and the
judgment of conviction. Young objected to the exhibit on the ground of relevancy, arguing that the
exhibit concerned Roberson, not the events underlying Young's indictment.
15
¶34.
On appeal, Young argues that the composite exhibit was prejudicial and that the sole
function of the exhibit was "to tell the jury that Ruby Young and her son ... were a 'criminal family.'"
Young's specific objection to relevancy demonstrated that she did not consider the prejudice
argument that she now raises on appeal. Davis v. Singing River Elec. Power Ass'n, 501 So. 2d 1128,
1131 (Miss. 1987). Therefore, we decline to consider this argument.
¶35.
Young argues that the trial court erroneously admitted documents concerning her own prior
felony conviction. Young did not object to the introduction of this evidence at the trial and,
therefore, waived appellate consideration of this issue. M.R.E. 103 (a)(1); McCaine v. State, 591
So. 2d 833, 835 (Miss. 1991)).
¶36.
Young also contends that the State's closing argument was inflammatory. During closing
arguments, the State's attorney stated that Young had been convicted of selling drugs in 1991 and
that the jury should not mistake that she was a "convicted dope dealer." Young objected on the
ground that there was no evidence that Young was ever charged with selling drugs. The State's
attorney responded that Young's 1991 conviction was for a drug sale. The Court stated that, while
it could not recall what Young had been convicted of in 1991, the conviction spoke for itself.
Argument continued. Young argues that the prosecution's statement was unfairly prejudicial.
¶37.
During closing arguments, a prosecutor may comment upon facts introduced into evidence
and may draw whatever deductions and inferences seem to him to be proper from the facts. Flowers
v. State, 842 So. 2d 531, 554 (¶64) (Miss. 2003). Young's 1991 conviction was for accessory before
the fact to sale of marijuana, not for sale of marijuana. Therefore, the prosecutor's statement that
Young had been convicted of selling drugs was not based upon the evidence and was inaccurate.
We decline to find that the prosecution's misstatement constitutes grounds for reversal. The error
16
was corrected by the court's statement, which directed the jury to the evidence showing the crime
for which Young was actually convicted. Sanders v. State, 439 So. 2d 1271, 1276 (Miss. 1983).
This issue is without merit.
VII. DID THE COURT ERR BY ALLOWING THE STATE TO EXACT A PROMISE FROM
THE JURY THAT IF CERTAIN PROOF WAS SHOWN, THEY WOULD RETURN A VERDICT
OF GUILTY?
¶38.
During voir dire, the prosecutor outlined the facts the State planned to prove at the trial.
Then, the prosecutor asked the venire, "if the facts and the law are as I stated beyond a reasonable
doubt, would any of you find it difficult in returning a verdict of guilty against the defendant as to
those three counts?" The venire was silent. Then, the prosecutor stated, "Those will be the basic
facts. Do any of you have a problem with the fact that this will be the proof? I am telling you now
this will be the case. And if you have a problem with that information, please tell us now." Again,
the venire was silent. On appeal, Young contends that it was reversible error for the State to outline
its proof to the prospective jurors and then ask if they would find it difficult to return a verdict if
they found those facts beyond a reasonable doubt.
¶39.
Uniform Rule of Circuit and County Court Practice 3.05 provides, "[n]o hypothetical
questions requiring any juror to pledge a particular verdict will be asked." Our supreme court has
stated that it is improper for prosecutors to exact a promise or commitment from the jury to convict
if the State proves certain facts. West v. State, 553 So. 2d 8, 22 (Miss. 1989). However, this issue
is waived if the defendant fails to object to the State's improper questions before the jury is
empaneled. Wilson v. State, 893 So. 2d 1064, 1068 (¶13) (Miss. Ct. App. 2004). Since Young failed
to object to the State's questions before the jury was empaneled, Young waived appellate
consideration of this issue. Id.
17
VIII. WAS YOUNG DENIED EFFECTIVE ASSISTANCE OF COUNSEL?
¶40.
With new appellate counsel, Young asserts that her trial counsel was constitutionally
ineffective. This Court applies the two-part test from Strickland v. Washington, 466 U.S. 668
(1984), to claims of ineffective assistance of counsel. McQuarter v. State, 574 So. 2d 685, 687
(Miss. 1990). Under Strickland, the defendant bears the burden of proof that (1) counsel's
performance was deficient, and (2) that the deficient performance prejudiced the defense. Id. We
examine the totality of the circumstances in determining whether counsel was effective. Id. There
is a strong but rebuttable presumption that counsel's performance fell within the wide range of
reasonable professional assistance. Id. This presumption may be rebutted with a showing that, but
for counsel's deficient performance, a different result would have occurred. Leatherwood v. State,
473 So. 2d 964, 968 (Miss. 1985).
¶41.
This Court is unable to reach the merits of a claim of ineffective assistance of counsel on
direct appeal unless "(a) . . . the record affirmatively shows ineffectiveness of constitutional
dimensions, or (b) the parties stipulate that the record is adequate and the Court determines that
findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed."
Read v. State, 430 So. 2d 832, 841 (Miss. 1983). If these conditions are unmet, we cannot reach the
merits of the issue of ineffective assistance of counsel; if we otherwise affirm the conviction, we
should do so without prejudice to the defendant's right to raise the issue in post-conviction
proceedings. Id. Our review of this issue on direct appeal is limited strictly to the trial record. Id.
¶42.
The parties have not stipulated that the record is adequate to enable this Court's review of
ineffective assistance of counsel. Therefore, we proceed to determine if the appellate record
affirmatively shows ineffectiveness of constitutional dimensions. If this Court determines that the
18
record affirmatively shows constitutional ineffectiveness, "then it should have been apparent to the
presiding judge, who had a duty . . . to declare a mistrial or order a new trial sua sponte." Colenburg
v. State, 735 So. 2d 1099, 1102 (¶8) (Miss. Ct. App. 1999).
¶43.
The record does not affirmatively show prejudicial incompetence by Young's trial attorney
such that the court should have declared a mistrial. Young claims her counsel was deficient in
failing to object several times during the trial. Young argues her attorney should have objected to
the introduction of the criminal files on Young and Roberson and to testimony concerning the
recovery of two other guns from Young's bedroom. Young also argues that her attorney should have
objected to inflammatory closing argument referring to Young and Roberson as a "crime family."
Failure to object to the introduction of evidence may be considered part of an attorney's trial
strategy. McCollins v. State, 798 So. 2d 624, 627 (¶11) (Miss. Ct. App. 2001). Young has not
alleged that, had her counsel made the objections she identifies on appeal, the result at trial would
have been different.
The record does not affirmatively show that Young's counsel was
constitutionally ineffective and, therefore, we dismiss Young's claim of ineffective assistance of
counsel without prejudice to her ability to raise the issue in post-conviction proceedings.
¶44.
We recognize Young's argument that her trial counsel was ineffective for failing to seek a
jury instruction concerning the proof of Young's intent to possess stolen property. Since this Court
is vacating Young's conviction of possession of stolen property, we need not address this issue.
¶45. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF
CONVICTION OF COUNT I, ACCESSORY-AFTER-THE-FACT OF THE CRIME OF
POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND SENTENCE OF
FIVE YEARS WITH TWO YEARS SUSPENDED, THREE YEARS TO SERVE, AND
THREE YEARS OF POST-RELEASE SUPERVISION, AND FINE OF $1,000; COUNT II,
POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE
YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
19
CORRECTIONS WITH SENTENCES IN COUNTS I AND II TO RUN CONCURRENTLY
IS AFFIRMED. THE JUDGMENT OF CONVICTION OF COUNT III, POSSESSION OF
STOLEN PROPERTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO LAUDERDALE COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, GRIFFIS, BARNES AND ISHEE,
JJ., CONCUR. IRVING J., CONCURS IN RESULT ONLY.
20
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