Rommel A. Amos v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-01920-COA
ROMMEL A. AMOS
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
5/2/2003
HON. JANNIE M. LEWIS
HOLMES COUNTY CIRCUIT COURT
LYDIA ROBERTA BLACKMON
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
JAMES H. POWELL
CRIMINAL - FELONY
MURDER - LIFE
AFFIRMED - 09/20/2005
BEFORE LEE, PJ, IRVING AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
After a trial in the Circuit Court of Holmes County, Rommel Amos was found guilty of
murder and sentenced to life imprisonment in the custody of the Mississippi Department of
Corrections. Amos appeals, arguing that: (1) his right to a speedy trial was violated; (2) jury
misconduct deprived him of a fair and impartial jury; (3) the prosecution offered perjured testimony
and withheld exculpatory evidence in violation of the Brady rule; (4) the State failed to disclose an
agreement with one of its witnesses; (5) the identification of Amos was unnecessarily suggestive; (6)
the trial court erroneously excluded certain hearsay testimony; (7) the prosecutor made improper
statements during cross-examination; (8) the evidence was insufficient to support the verdict; (9) the
verdict was against the overwhelming weight of the evidence; (10) Amos received ineffective
assistance of counsel; and (11) the cumulative effect of all the errors requires a new trial.
¶2.
We find no error and, therefore, affirm Amos's conviction and sentence.
FACTS
¶3.
Amos was convicted of the shooting death of Walter "Junior Man" Vance. At the trial, it was
established that, on October 31, 2001, Amos visited Aaron Hudson and his girlfriend, Alexis Noel,
at their home in Tchula, Mississippi. Amos, a native of Illinois, had been a resident of Holmes
County for the past two or three months and lived with his girlfriend, LaMonica Henderson.
Henderson drove a black Chevrolet Impala car.
¶4.
That evening, Amos and Hudson decided to visit an acquaintance who lived in a nearby trailer
park. They walked from Hudson's trailer through the trailer park. Since it was Halloween night,
large numbers of people were outside. Amos and Hudson encountered a small group who were
standing around talking, including both Vance and Christopher "Molly" Claiborne. Amos and Vance
exchanged cross words. According to witnesses for the State, Amos became angry after Vance joked
that Amos's head covering looked as if he had panties on his head. Amos and Vance began shoving
each other. Vance pushed Amos down but then helped him back up. Vance and Claiborne walked
away, and Amos walked back toward Hudson's trailer. Then, Amos ran up to Vance and Claiborne
with a gun and started shooting at their backs. Vance fell to his knees, and Amos walked over to him
and shot him several times, stating, "Die, b----, die." Then, he ran back to Hudson's trailer.
¶5.
According to Amos, when he and Hudson encountered the group, Vance and others harassed
him about being a stranger to Tchula. Vance displayed a .22 caliber revolver and stated, "get your
b---- ass down here." Frightened, Amos walked in the direction of Hudson's trailer. Then, three men,
including Vance and Claiborne, approached him and began hitting and kicking him, forcing him to
2
the ground. As he lay curled up in an effort to avoid their blows, he heard someone say, "go get the
gauge," meaning a gun. Then, Hudson ran up and gave Amos a gun. In fear for his life, Amos
started shooting randomly and then ran to Hudson's trailer. Amos returned the gun to Hudson and
walked to his own home several miles away. The next day, he traveled to Chicago, Illinois. Amos
explained that he had fled out of fear for his life and that, four days later, he discovered someone had
been killed that night. Later, authorities apprehended Amos in Chicago and extradited him to Holmes
County.
¶6.
Dr. Steven Hayne, who conducted the autopsy, testified that Vance sustained four gunshot
wounds, all of which entered the rear of his body and traveled forward. Two of the wounds were to
the head, including the lethal wound, which entered over the left ear and exited through the left eye.
Dr. Hayne recovered one .22 caliber projectile from a wound to Vance's back and testified that
Vance's other wounds were consistent with .22 caliber projectiles. At the crime scene, police found
five .22 caliber shells located two to four feet from a blood patch on the ground. Police also found
a .22 caliber semi-automatic handgun wrapped in a shirt hidden underneath an abandoned house next
door to Hudson's trailer. A forensic examiner with the Mississippi Crime Laboratory determined
that the five shells had been released when the .22 caliber handgun was fired. The jury rejected
Amos's defense of self-defense and found him guilty of murder.
I. WHETHER AMOS'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS VIOLATED.
¶7.
Amos was indicted on July 16, 2002 and arrested in Mississippi on July 26, 2002. On July
29, 2002, he filed a pro se motion for a speedy trial. At Amos's arraignment on August 28, 2002, he
appeared with appointed counsel and trial was set for February 13, 2003. Amos's trial did not begin
until May 1, 2003. On appeal, Amos argues that the timing of the trial violated his statutory and
constitutional speedy trial rights.
3
¶8.
Mississippi Code Annotated section 99-17-1 (Rev. 2000) establishes the statutory right to a
speedy trial and provides that the accused must be tried within 270 days of the arraignment unless
good cause is shown and a continuance granted by the court. Though Amos argues that his statutory
right to a speedy trial was violated, he acknowledges the fact that he was tried 255 days after his
arraignment. Since Amos was tried within 270 days of his arraignment, his statutory right to a speedy
trial was not violated. Miss. Code Ann. § 99-17-1 (Rev. 2000).
¶9.
This Court applies the balancing test from Barker v. Wingo, 407 U.S. 514, 530 (1972) to
determine constitutional speedy trial violations. Barker requires the examination of four factors: (1)
the length of the delay; (2) the reason for the delay; (3) whether the defendant has asserted his right
to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Birkley v. State, 750
So. 2d 1245, 1249 (¶ 11) (Miss. 1999). If the length of the delay is over eight months, the delay is
presumptively prejudicial and triggers the balancing of the other three factors. Adams v. State, 583
So. 2d 165, 168 (Miss. 1991). Once the delay is found to be presumptively prejudicial, "the burden
shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of
the legitimacy of these reasons." State v. Ferguson, 576 So. 2d 1252, 1254 (Miss. 1991). However,
the delay factor alone is insufficient for reversal. Young v. State, 891 So. 2d 813, 817 (¶5) (Miss.
2005).
¶10.
The constitutional speedy trial right attaches at the time a person is effectively accused of a
crime, whether at arrest, indictment, or information. Smith v. State, 550 So. 2d 406, 408 (Miss.
1989). In his appellate brief, Amos contends that the speedy trial right attached when he was
apprehended in Chicago, Illinois in December 2001.1 This contention is incorrect. The State of
Mississippi lacked jurisdiction over Amos until his extradition. Price v. State, 898 So. 2d 641 (¶13)
1
The record does not indicate the date of Amos's capture in Illinois.
4
(Miss. 2005). Thus, the speedy trial time could not have begun to run until the State obtained
jurisdiction over Amos. Id. The record is silent as to the date when Amos was extradited to
Mississippi. Amos was indicted on July 16, 2002 and subsequently arrested by the Holmes County
Sheriff's Department. It appears that Amos's indictment was the event at which the State effectively
accused Amos of the crime and, therefore, Amos's right to a speedy trial attached on July 16, 2002.
1. Length of the delay
¶11.
Over nine months elapsed from the date of Amos's indictment on July 16, 2002 to the trial
on May 1, 2003. This delay of over eight months was presumptively prejudicial and requires our
examination of the other three Barker factors.
2. Reason for the delay and assertion of the speedy trial right
¶12.
Absolutely no reason for the delay appears in the record; there is no indication that either
Amos or the State requested a continuance or otherwise caused the delay. Amos filed a pro se motion
for a speedy trial shortly after his arrest, but he never brought the motion to the attention of the trial
court to obtain a ruling. Nor did Amos pursue the speedy trial issue by raising it in his motion for
a J.N.O.V. or a new trial. Since Amos failed to obtain a ruling from the trial court on the speedy trial
issue, this Court lacks any findings on the record as to the reason for the delay or any response from
the State as to the cause of the delay. See Young, 891 So. 2d at 818 (¶12).
3. Prejudice
¶13.
Three interests protected by the speedy trial right must be considered in determining whether
the defendant has been prejudiced by a delay in bringing him to trial. Id. at (¶14). These interests
are: "(1) the interest in preventing oppressive pre-trial incarceration; (2) the interest in minimizing
anxiety and concern of the accused; and (3) the interest in limiting the possibility the defense will be
5
impaired." Id. The interest in preventing the impairment of the defense is the most important interest
and the one most prejudicial to the defendant when violated. Id.
¶14.
Amos contends that he suffered prejudice in the form of oppressive pre-trial incarceration,
which caused him anxiety. But, pre-trial incarceration, alone, is not considered prejudicial. Jefferson
v. State, 818 So. 2d 1099, 1108 (¶22) (Miss. 2002). Amos contends that his pre-trial incarceration
was oppressive because, for two weeks after his extradition to Mississippi, he was not allowed to
make any telephone calls to notify his family of his whereabouts. Since Amos never brought his
speedy trial request to the attention of the trial court, no evidence of the conditions of his pre-trial
incarceration are contained in the appellate record. “Facts asserted to exist must and ought to be
definitely proved and placed before us by a record, certified by law; otherwise, we cannot know
them." Mason v. State, 440 So. 2d 318, 319 (Miss. 1983).
¶15.
Amos also claims that evidence helpful to his defense was diminished by the pre-trial delay.
He asserts that the memories of defense witnesses had faded, diminishing the credibility of their
testimony. He avers that the area where the crime occurred had changed over time, and, therefore,
the jury had an inaccurate perception of the crime scene. At the trial, Amos showed the jury a scar
on his head which he said was the result of having been beaten by Vance and Claiborne. He asserts
that this scar had faded as he awaited trial and, thus, no longer reflected the severity of the beating.
The trial transcript shows that the testimony of defense witnesses conflicted as to the exact location
where Vance was shot and in other particulars. This conflict may have been due to memories that
had faded since the crime. However, the length of prejudicial delay in this case was approximately
one and one half months. It is unlikely that the witnesses' memories or Amos's scar faded materially
in that period of time. And, the fact the crime scene may have changed over time was entirely
6
irrelevant since the jury never viewed the crime scene. We find that the prejudice factor weighs
against Amos.
¶16.
Considering the Barker factors, we find that Amos's right to a speedy trial was not violated.
Though the delay in this case was presumptively prejudicial and Amos asserted his right to a speedy
trial, Amos did not obtain a ruling on the speedy trial issue from the trial court. Thus, no factfindings concerning the reason for the delay appear in the record. "Our law is clear that an appellant
must present us a record sufficient to show the occurrence of the error he asserts and also that the
matter was properly presented to the trial court and timely preserved." Young, 891 So. 2d at 818
(¶14). And, Amos has not shown he suffered prejudice from the delay. This issue is without merit.
II. WHETHER THERE WAS JURY MISCONDUCT THAT DEPRIVED AMOS OF HIS RIGHT
TO A FAIR AND IMPARTIAL JURY.
¶17.
In this assignment of error, Amos contends that one of the jurors, Annie Gilmore, is related
to his trial counsel, Billy Joe Gilmore. Specifically, Amos alleges that Annie Gilmore is attorney
Gilmore's sister-in-law or ex-sister-in-law. In his appellate brief, Amos states that he noticed that this
juror became agitated and showed negative body language during attorney Gilmore's presentation of
the defense. Amos states that, when he brought this to the attention of attorney Gilmore, Gilmore
admitted that Annie Gilmore formerly had been married to his brother.
¶18.
There is no indication in the record that the alleged relationship of this juror was ever brought
to the attention of the trial court. Amos did not raise the issue in his motion for a JNOV or a new
trial. Since Amos raises this issue for the first time on appeal, it is procedurally barred. Stockstill
v. State, 854 So. 2d 1017, 1023 (¶14) (Miss. 2003). We observe that Amos does not contend that
Annie Gilmore failed to respond truthfully to a question asked during voir dire. The court asked if
any prospective jurors were related to the attorneys by marriage, but never asked if anyone formerly
had been related to the attorneys by marriage. This issue is without merit.
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III. WHETHER THE PROSECUTION ALLOWED THE USE OF PERJURED TESTIMONY AND
WHETHER A PRIOR STATEMENT MADE BY AARON HUDSON WAS WITHHELD FROM
THE DEFENSE IN VIOLATION OF THE BRADY RULE SO AS TO DEPRIVE THE
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
¶19.
Under this heading, Amos asserts two instances of prosecutorial misconduct. He argues that
the prosecution improperly offered perjured testimony from Christopher "Molly" Claiborne and that
the prosecution suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963). Concerning Claiborne's allegedly perjured testimony, Amos points to Claiborne's statement
to police that he saw Hudson obtain a gun from a black Chevrolet Impala car and give the gun to
Amos. Claiborne's statement was admitted into evidence without objection. In his brief, Amos
alleges that the prosecution should have known that Claiborne's statement was untrue because the
police investigation had revealed that Lamonica Henderson's black Chevrolet Impala car was not at
the crime scene on the evening of October 31, 2001, but had been driven to Jackson by Henderson.
¶20.
Amos alleges that the prosecution knew the Impala was not at the crime scene and that
Claiborne's testimony was perjured because police had arrested Henderson, held her for questioning,
and released her from custody after concluding she had driven the Impala to Jackson on the night of
the shooting. There is no record evidence supporting Amos's allegations of police knowledge of the
whereabouts of the Impala at the time of the crime. Thus, Amos's contention that the prosecution
knowingly offered perjured testimony by Claiborne is purely speculative. At the trial, Amos crossexamined Claiborne about his statement that Hudson had obtained the gun from the Impala before
giving it to Amos. And, Claiborne's testimony conflicted with that of other witnesses, who had not
seen the Impala. The jury had the opportunity to exercise its functions of assessing Claiborne's
credibility in light of all of the evidence and of resolving any conflicts in the evidence. Jackson v.
State, 614 So. 2d 965, 972 (Miss. 1993). This issue is without merit.
8
¶21.
Amos also contends that the prosecution, in violation of Brady v. Maryland, 373 U.S. 83
(1963), suppressed a statement which Hudson made to the police on the night of the crime. Brady
held that "suppression by the prosecution of evidence favorable to an accused upon request violated
due process where the evidence is material either to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution." Brady, 373 U.S. at 87. In King v. State, 656 So. 2d 1168, 1174
(Miss. 1995), our supreme court adopted a four-prong test to determine whether a Brady violation
has occurred that mandates a new trial. To establish a Brady violation, the defendant must prove:
(1) that the government possessed evidence favorable to the defendant (including
impeachment evidence); (2) that the defendant does not possess the evidence nor
could he obtain it himself with any reasonable diligence; (3) that the prosecution
suppressed the favorable evidence; and (4) that had the evidence been disclosed to the
defense, a reasonable probability exists that the outcome of the proceedings would
have been different.
Id.
¶22.
Amos alleges that the prosecution suppressed a statement that Hudson made to the police on
the night of the crime. However, Amos again proceeds on the basis of assertions in his brief rather
than on record evidence. There is no record evidence that Hudson gave a written or otherwise
recorded statement to the police on October 31, 2001. And, Amos has made no showing that the
contents of such a statement, if it indeed existed, would have been exculpatory. Therefore, Amos has
failed to meet at least two prongs of the King test and has failed to establish a Brady violation. We
observe that, at the trial, Amos called Hudson as a defense witness and examined him thoroughly.
This issue is without merit.
IV. WHETHER THE STATE VIOLATED AMOS’S RIGHT TO FAIR TRIAL BY FAILING TO
DISCLOSE ANY AGREEMENT OR DEAL WITH AARON HUDSON.
¶23.
At the trial, Hudson corroborated part of Amos's version of events by testifying that
Claiborne, Vance, and others had beaten Amos. Hudson stated that, after the beating, Amos ran back
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to Hudson's trailer. Amos demanded that Hudson give him a gun which Amos owned and had
previously asked Hudson to keep for him. Hudson gave Amos the gun, but did not witness the
shooting.
¶24.
On appeal, Amos argues that, because Hudson gave Amos the gun, the State could have
charged Hudson as an accessory before the fact to the murder of Vance. Amos surmises that, since
the State did not prosecute Hudson, the State must have offered Hudson leniency in exchange for his
testimony, a deal which was not revealed to Amos. Amos argues that any deal which Hudson made
with the State to exchange testimony for leniency was relevant to impeach Hudson's credibility before
the jury and, thus, exculpatory. He argues that the State committed a Brady violation by failing to
reveal its agreement with Hudson.
¶25.
Again, this assignment of error is based purely on speculation in Amos's appellate brief and
not on evidence contained within the record. There is no indication in the record that the State had
an agreement with Hudson to exchange leniency for testimony. In fact, Hudson was called as a
witness by Amos, not by the State. His testimony was largely favorable to Amos. Amos has not
shown that the State committed a Brady violation by failing to reveal an agreement with Hudson.
This issue is without merit.
V. WHETHER THE IDENTIFICATION OF AMOS AS THE SHOOTER OF THE VICTIM WAS
SO UNNECESSARILY SUGGESTIVE AND CONDUCIVE TO IRREPARABLE MISTAKEN
IDENTIFICATION THAT AMOS WAS DENIED DUE PROCESS OF LAW.
¶26.
Amos contends that the identification of Amos as the person who shot Vance was
unnecessarily suggestive. Usually, the suggestiveness of an identification is raised to challenge an
in-court identification after a pre-trial identification has been made. Gayten v. State, 595 So. 2d 409,
418 (Miss. 1992). In the case sub judice, Amos was never subjected to a pre-trial identification.
Instead, witnesses at the trial identified Amos in court as the person who shot Vance. In fact, Amos
10
admitted that he shot Vance, but asserted that he did so in self-defense. Even if there had been
ambiguity concerning the identity of Vance's killer, a defendant claiming that trial suggestiveness is
a problem "must ordinarily take steps to avoid the problem before claiming a due process violation"
such as having other persons sit with him at counsel's table, sitting elsewhere in the courtroom, or
requesting a pre-trial identification. Id. Amos took none of these steps. This issue is without merit.
VI. WHETHER THE COURT ERRED IN EXCLUDING HEARSAY TESTIMONY FROM
ALEXIS NOEL.
¶27.
Alexis Noel testified on behalf of Amos. She stated that, just before the shooting, she was
preparing food for her children inside the trailer she shared with Hudson. She stated that Hudson
came to the door and "said something about Molly, you know, was beating up . . . ." The prosecution
objected on the basis of hearsay and the court sustained the objection. Then, Noel testified that
Hudson gave Amos the gun.
¶28.
Amos contends that the court erred by preventing Noel from stating what Hudson told her.
This Court reviews the trial court's ruling admitting or excluding evidence for abuse of discretion.
Ladnier v. State, 878 So. 2d 926, 933 (¶27) (Miss. 2004). Further, an error in the admission or
exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a
party. Id.; M.R.E. 103 (a). Hearsay consists of an out-of-court statement offered to prove the truth
of the matter asserted. M.R.E. 801 (c). It is not generally admissible. M.R.E. 802. Amos argues
that Hudson's statement to Noel was admissible because it was not offered for its truth, but instead
to show that, when Hudson gave Amos the gun, he intended to help Amos, who was being beaten.
¶29.
This argument is without merit. Hudson's statement to Noel was offered for its truth, that is,
that Christopher "Molly" Claiborne was beating up Amos. Certainly, if the statement were taken as
true, then the jury could have inferred that Hudson gave Amos the gun intending to help Amos
defend himself from Claiborne's attack. But, for that inference to have been made, the jury would
11
first have had to believe the truth of the statement: that Claiborne was beating Amos. Therefore,
Hudson's statement to Noel was hearsay and the trial court acted within its discretion in excluding
it. We observe that Amos was not harmed by the exclusion of the hearsay statement because its
content was wholly cumulative of other testimony by Noel, Hudson, and Amos.
VII. WHETHER THE STATE COMMITTED REVERSIBLE ERROR BY MAKING IMPROPER
STATEMENTS DURING CROSS-EXAMINATION OF THE DEFENDANT AS WELL AS
DURING CLOSING ARGUMENTS–STATEMENTS WHICH WERE SO PREJUDICIAL TO THE
DEFENDANT AS TO DENY HIM HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL UNDER
BOTH THE STATE AND FEDERAL CONSTITUTIONS.
¶30.
Though Amos states that this issue challenges prosecutorial misconduct in the form of
improper arguments by the prosecuting attorney, under this heading he primarily contests the trial
court's grant of Jury Instruction S-5 over Amos's objection. The instruction stated that, if the jury
believed that Amos fled or went into hiding after the shooting, that such flight or hiding was to be
considered along with all of the other evidence in the case. The instruction further directed the jury
to determine from all the facts whether such flight resulted "from a conscious sense of guilt or
whether it was caused by other things" and allowed the jury to "give it such weight as you think it
is entitled" in determining Amos's guilt or innocence.
¶31.
A defendant's flight is admissible as evidence of consciousness of guilt. However, a flight
instruction should be given only when the defendants' flight is (1) unexplained; and (2) when the
circumstances of the flight have considerable probative value. Austin v. State, 784 So. 2d 186, 194
(¶24) (Miss. 2001) (citing Pannell v. State, 455 So. 2d 785, 788 (Miss. 1984)). A flight instruction
or evidence of a defendant's flight is improper when the evidence of flight is probative of things other
than guilt or guilty knowledge of the crime charged. Fuselier v. State, 702 So. 2d 388, 391 (Miss.
1997). Thus, evidence of flight was erroneously admitted in a case where the defendant's flight after
the crime could have been equally probative of his guilt or of his status as an escaped prisoner. Id.
12
We have reversed the grant of a flight instruction in cases where, due to circumstances other than
guilty knowledge, "it would have been illogical for the defendant not to have run." Austin, 784 So.
2d at 195.
¶32.
Amos argues that the flight instruction was erroneous because his flight to Chicago was
explained by his testimony that, after having been beaten by Vance, Claiborne and others, he was
afraid that remaining in Tchula would cost him his life. Since his flight was explained, his argument
goes, the first prong of the Pannell test was unmet. We disagree. Although Amos offered a reason
for his return to Chicago, his reason does not fully and logically explain why he left the jurisdiction
after the altercation and remained absent until his capture and extradition back to Mississippi.
According to his own testimony, Amos was aware that he had fired a gun in a crowd, potentially
causing serious injuries. Amos admitted that, four days after the shooting, he discovered that
someone had been killed, yet he remained in Chicago until he was forced to submit to judicial
process. We find that Amos's flight was unexplained and that the circumstances of his removal to
Chicago had considerable probative value. The jury was properly allowed to consider the evidence
of Amos's flight and was properly instructed.
¶33.
Amos makes general assertions that the State's closing argument was improper, but he points
to no specific instances of error and made no objections during the closing argument. Therefore, this
issue is procedurally barred. Carr v. State, 655 So. 2d 824, 853 (Miss. 1995).
VIII. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S REJECTION
OF AMOS’ SELF DEFENSE CLAIM WHEN THE JURY DID NOT HAVE ALL OF THE
EVIDENCE WHICH WHEN VIEWED IN ITS TOTALITY WOULD LEAD A REASONABLE
PERSON TO CONCLUDE THAT AMOS ACTED AS AN OBJECTIVELY REASONABLE
PERSON IN DEFENSE OF HIS LIFE.
¶34.
Amos filed a motion for a JNOV, challenging the sufficiency of the evidence. The trial court
denied the motion. Amos argues that the ruling was error because the evidence was insufficient to
13
enable the jury to reject his defense of self-defense and to find him guilty of murder. In reviewing
a challenge to the sufficiency of the evidence , this Court views the evidence in the light most
favorable to the verdict. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). If any reasonable
trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the
Court will uphold the verdict. Id. We are mindful that "[m]atters regarding the weight and credibility
to be accorded the evidence are to be resolved by the jury." Harveston v. State, 493 So. 2d 365, 370
(Miss. 1986).
¶35.
Amos argues that the State's witnesses were not credible and did not substantially contradict
the testimony of Amos and his witnesses. We disagree and find that sufficient evidence supported
the verdict. Certainly, the jury was presented with conflicting witness testimony concerning the
events of October 31, 2001. The defense witnesses, consisting of Hudson, Noel, and Amos, testified
that Amos had been beaten by Vance and Claiborne prior to the shooting. But, Hudson and Noel said
that they did not see the shooting. Rather, Hudson and Noel testified that Hudson gave Amos the gun
and then they heard gunshots. Amos testified that, as he was being beaten, Hudson gave him the gun
and, in fear for his life, he fired it randomly at the crowd and later discovered that he had shot Vance.
The testimony of three eyewitnesses for the State substantially contradicted Amos's version of the
shooting. Katrina Venable, Christopher Claiborne, and Vance's brother Kentaiss Vance all testified
that Amos approached Vance from behind and began shooting at him. Vance fell down, and Amos
then stood over Vance and shot him again. The results of the autopsy supported the testimony of the
witnesses for the State. The autopsy showed that Vance had sustained only rear-entry bullet wounds
and that the two bullet wounds to his head had a trajectory that was consistent with Vance having
been on his knees or having fallen down when the shots were fired. The evidence was sufficient to
14
enable a reasonable juror to have rejected Amos's self-defense theory and to have found Amos guilty
of murder. This issue is without merit.
IX. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE.
¶36.
Amos filed a motion for a new trial, challenging the weight of the evidence. When this Court
reviews an argument that the verdict was against the overwhelming weight of the evidence, we "must
accept as true the evidence which supports the verdict and will reverse only when convinced that the
circuit court has abused its discretion in failing to grant a new trial." Collins v. State, 757 So. 2d 335,
337 (¶5) (Miss. Ct. App. 2000). We give the State the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Id. We will reverse only in those cases where the verdict
is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice. Id.
¶37.
Although there were conflicts in the testimony, the jury's verdict was not against the
overwhelming weight of the evidence. As set out above, in our discussion of the sufficiency of the
evidence, three witnesses saw Amos stand over Vance and fire the fatal shot. Though two witnesses
saw Amos being beaten, only Amos testified that he shot Vance accidentally while defending himself
from the beating. Even if the jury believed that Amos had been beaten by Vance and Claiborne
before the shooting, the jury justifiably could have found from the testimony and the autopsy results
that, after the beating concluded, Amos obtained the gun from Hudson and killed Vance. The jury
was within its right to reject Amos's theory of self-defense based on the evidence presented. This
issue is without merit.
X. WHETHER THE ASSISTANCE AMOS RECEIVED FROM HIS ATTORNEY WAS
INADEQUATE AND INEFFECTIVE.
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¶38.
Amos, with new appellate counsel, argues that his trial counsel was constitutionally
ineffective because counsel failed to file critical motions, failed to subject the State's case to a
meaningful adversarial setting, and failed to investigate all of the information relating to Amos's
innocence. Amos has attached extra-record documents to his brief in support of his claim. In Read
v. State, 430 So. 2d 832, 841 (Miss. 1983), the supreme court established that a convicted criminal
is permitted to raise the issue of ineffective assistance of counsel on direct appeal. However, when
this issue is raised, this Court's review is strictly limited to the appellate record. Id. We may reach
the merits of the claim only when "(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 the trial judge able to consider the demeanor of witnesses, etc. are
not needed." Id. If these two conditions are unmet, this Court should review the other issues in the
case. If we otherwise affirm the conviction, we should do so without prejudice to the defendant's
right to raise the issue of ineffective assistance of counsel in appropriate post-conviction proceedings.
Id.
¶39.
The parties to the instant case have not stipulated that the record is adequate to enable this
Court to adjudicate the merits of Amos's ineffective assistance of counsel argument. Therefore, we
are limited to a review of the record to determine whether the record "affirmatively shows
ineffectiveness of constitutional dimensions" such that the trial court should have declared a mistrial
or ordered a new trial sua sponte. Id.; Colenburg v. State, 735 So. 2d 1099, 1102 (¶8) (Miss. Ct.
App. 1999). In assessing the effectiveness of trial counsel, this Court applies the two-prong test
enunciated in Strickland v. Washington, 466 U.S. 668 (1984). McQuarter v. State, 574 So. 2d 685,
687 (Miss. 1990). Under Strickland, the defendant has the burden to show that (1) trial counsel's
performance was deficient; and (2) that the defendant was prejudiced by such deficiency such that
16
he was deprived of a fair trial. Perkins v. State, 487 So. 2d 791, 793 (Miss. 1986). A defendant's
allegations of counsel's deficient performance must be made with specificity and detail. Id. There
is a "'strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance' . . . [i]n short, defense counsel is presumed competent." Handley v. State, 574 So. 2d 671,
683 (Miss. 1990) (quoting Strickland, 466 U.S. at 687)). The presumption may be rebutted by 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). A reviewing court must consider the
totality of the circumstances in determining whether the defendant has shown that counsel was
ineffective. McQuarter, 574 So. 2d at 687.
¶40.
In reviewing this issue, we are unable to consider the extra-record documents which Amos
has attached to his brief. Read, 430 So. 2d at 841. The only specific allegations of ineffective
assistance of counsel made by Amos which are apparent from the record are: (1) that his counsel did
not file a written request for discovery; (2) that when the State called Kentaiss Vance as a witness,
his counsel stated he had been unaware that Vance was on the witness list; and (3) that counsel did
not bring Amos's pro se speedy trial motion to the attention of the trial court.
¶41.
After reviewing the record in this case, considering the totality of the circumstances, we
cannot say that these actions by Amos's counsel were so deficient that the trial court was bound to
have declared a mistrial. Amos's trial counsel orally requested discovery, thoroughly cross-examined
all of the State's witnesses, including Kentaiss Vance; called two witnesses other than Amos in
support of Amos's self-defense theory; and participated in the crafting of jury instructions. Without
record evidence as to the reason Amos was not brought to trial within eight months of the attachment
of his right to a speedy trial, we must assume that trial counsel's decision not to pursue the speedy
trial issue was strategic. Amos's trial counsel appears to have subjected the State to a meaningful
17
adversarial setting and it does not appear that, but for the deficiencies alleged by Amos, the result
would have been any different. See Lyle v. State, 908 So. 2d 189, 197 (¶45) (Miss. Ct. App. 2005).
We find that the record does not affirmatively show that Amos received ineffective assistance of
counsel. Amos remains free to pursue the issue of ineffective assistance of counsel in appropriate
post-conviction relief proceedings. Read, 430 So. 2d at 841.
XI. WHETHER THE CUMULATIVE ERRORS IN THIS CASE DENIED AMOS THE RIGHT TO
A FAIR TRIAL.
¶42.
Amos argues that the cumulative effect of errors by the trial court denied him a fair trial. We
have found that no errors occurred in this case. Where there is no error as to any part, there can be
no reversible error as to the whole. See McFee v. State, 511 So. 2d 130, 136 (Miss. 1987). We
affirm the judgment of the trial court.
¶43. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
ALL COSTS OF APPEAL ARE ASSESSED TO HOLMES COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS, BARNES AND
ISHEE, JJ. CONCUR.
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