Cleveland C. Palmer v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-02100-COA
CLEVELAND C. PALMER A/K/A CLEVELAND
CHAMPION PALMER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/10/2008
HON. ROBERT P. KREBS
JACKSON COUNTY CIRCUIT COURT
LESLIE S. LEE
JUSTIN TAYLOR COOK
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
ANTHONY N. LAWRENCE III
CRIMINAL - FELONY
CONVICTED OF MURDER AND
SENTENCED TO LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 05/04/2010
BEFORE KING, C.J., ISHEE AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
A jury sitting in the Jackson County Circuit Court convicted Cleveland Palmer of
murder.
The trial judge sentenced Palmer to life in the custody of the Mississippi
Department of Corrections. On appeal, Palmer claims he received ineffective assistance from
his trial counsel. Specifically, he contends: (1) plain error resulted from his attorney’s failure
to object to inadmissible evidence, and (2) his lawyer did not adequately prepare to defend
his case.
¶2.
Finding no obvious deficient performance on the part of Palmer’s trial counsel, we
affirm his conviction and sentence.
FACTS
¶3.
Palmer and his wife Felicia lived in the Oakwood Apartment Complex in Pascagoula,
Mississippi. On October 26, 2007, Felicia reported to apartment management that their
neighbor, Glenn Manning, had been stealing electricity from the complex’s electrical box.
Manning later confronted Felicia about turning him in and called her a derogatory name.
Felicia became angry and contacted her husband, Palmer.
¶4.
Palmer testified that he arrived home between 5:00 and 7:00 p.m. that night and
confronted Manning. An argument ensued when Manning refused to apologize to Felicia.
A nearby neighbor, Aaron Stewart, testified that Sammy Tims left in one of Palmer’s cars
and returned with a “small shotgun.” Stewart later saw Palmer with the same weapon.
¶5.
Manning left the area but returned to the apartment complex around 9:00 p.m.
Manning and Palmer again argued with one another. When Manning tried to return to his
apartment, Palmer armed himself with a sawed-off shotgun and a stick. He then followed
Manning into Manning’s apartment. The details surrounding the ensuing events vary.
However, it is undisputed that the shotgun discharged, and Manning died as a result of a
gunshot wound to his abdomen.
¶6.
After the shooting, Palmer ran from Manning’s apartment and threw the shotgun into
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a nearby river. Felicia remained at the scene and informed the police that she believed her
husband had accidentally shot Manning during a struggle. Later that night, Felicia and
Palmer went to the police station. There, Palmer told the police he did not intend to shoot
Manning. He instead claimed Manning pulled a shotgun on him, and the two struggled over
the weapon, which accidentally fired, killing Manning.
¶7.
Officers investigating the shooting learned two men were present when Palmer
entered Manning’s apartment. One man, known only as “Pops,” was not located, but the
police did locate Rodney Cole. Cole told police that a black male entered Manning’s
apartment with a gun and told Cole and Pops to leave.
¶8.
Though Palmer initially claimed Manning had pulled a shotgun on him, Palmer later
admitted this was false. Palmer claimed he had lied about the shotgun because he feared his
wife’s probation would be revoked if law enforcement learned Palmer possessed the weapon.
Palmer admitted in a third statement to the police and at trial that he did indeed arm himself
with a shotgun before confronting Manning.
¶9.
Though Palmer’s stories changed, he maintained the shooting was an accident and that
he only meant to beat Manning with the stick. He claims he brought the shotgun along
because he feared Manning had a gun in his apartment. Palmer testified that, once inside
Manning’s bedroom, he threatened to whip Manning’s butt with the stick unless he
apologized to his wife. According to Palmer, Manning refused to apologize, so he struck him
with the stick. At this point, Palmer claimed Manning grabbed the shotgun, and the two
struggled over the weapon. Palmer testified that the gun discharged when the two men fell
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to the floor. He then claimed he panicked, fled the apartment and ditched the gun in a nearby
river.
¶10.
Prosecutors proposed a different version. The State offered testimony about Palmer’s
conflicting statements and initial falsehoods. It also attempted to contradict Palmer’s story
that he dropped his stick in Manning’s bedroom prior to the struggle. Additionally, forensic
pathologist Dr. Paul McGarry testified that heavy black soot found on Manning’s body
evidenced a contact wound. According to Dr. McGarry, this meant the gun’s barrel was
pressed against Manning when fired. The State also maintained the angle of the wound was
inconsistent with a struggle. Further, Dr. McGarry testified Manning’s crippled left hand
could not have grasped or wrestled the gun from Palmer.
¶11.
The jury convicted Palmer of murder, and the circuit court denied his motion for a
new trial.
DISCUSSION
¶12.
Palmer does not attack the sufficiency or weight of the evidence underlying his
conviction, nor does he contest the expert testimony supporting it. Instead, he claims
ineffective assistance of counsel based on three instances of inaction by his trial attorney.
The first alleged error stems from his defense counsel’s failure to object to an investigating
officer’s testimony. The second results from his attorney’s failure to object to the admission
of one of Palmer’s videotaped interviews. Palmer’s final claim of ineffective assistance of
counsel stems from his attorney’s failure to review physical evidence.
¶13.
To prevail on a claim of ineffectiveness of counsel, Palmer must demonstrate his
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counsel’s performance was both “[1] deficient and [2] that the deficiency prejudiced the
defense of the case.” Burnside v. State, 882 So. 2d 212, 216 (¶20) (Miss. 2004) (quoting
Burns v. State, 813 So. 2d 668, 673 (¶14) (Miss. 2001)); see also Strickland v. Washington,
466 U.S. 668, 687 (1984). There is a strong presumption that an attorney’s performance falls
within the wide range of reasonable professional assistance. Rankin v. State, 636 So. 2d 652,
656 (Miss. 1994).
To establish prejudice, Palmer must demonstrate that, but for his
attorney’s errors, there is a reasonable probability the outcome of his trial would be different.
Id.
I.
Failure to Object
A.
¶14.
Officer Jackie Trussell’s Testimony
Palmer first claims his attorney’s failure to object to certain testimony was deficient
and prejudiced his defense. Palmer specifically contends statements made to Officer Jackie
Trussell by Felicia and Cole were inadmissible hearsay. He alleges their admissions violated
the Confrontation Clause and urges this Court to find plain error.
¶15.
Under the plain-error doctrine, appellate courts can address obvious error not properly
raised by the defendant on appeal that affects a defendant’s fundamental, substantive rights.
Neal v. State, 15 So. 3d 388, 403 (¶32) (Miss. 2009) (citing Smith v. State, 986 So. 2d 290,
294 (¶10) (Miss. 2008)). “The plain[-]error doctrine has a two-part test which requires: (i)
an error at the trial level and (ii) such an error resulted in a manifest miscarriage of justice.”
Stephens v. State, 911 So. 2d 424, 432 (¶19) (Miss. 2005) (citing Gray v. State, 549 So. 2d
1316, 1321 (Miss. 1989)). The Confrontation Clause provides that “[i]n all criminal
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prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him[.]” U.S. Const. amend. VI. The Mississippi Supreme Court has held, however, that in
some instances a violation of a defendant’s right to confront witnesses may be deemed
harmless error. Smith, 986 So. 2d at 302 (¶37); see also Bynum v. State, 929 So. 2d 312,
314-15 (¶6) (Miss. 2006) (finding the trial court's error in admitting the co-defendant's
statement was harmless); Clark v. State, 891 So. 2d 136, 142 (¶30) (Miss. 2004) (finding
admission of statements made by a non-testifying accomplice in violation of the
Confrontation Clause was harmless error).
¶16.
At trial, Officer Trussell testified that after responding to the shooting, Felicia told
him: “she thought her husband . . . shot [Manning] . . . . They got into a struggle over a gun,
and the gun went off and [Manning] was shot.”
¶17.
We agree with Palmer that Felicia’s alleged statement to Officer Trussell is hearsay
and is, thus, inadmissible. See M.R.E. 801 and 802. Nevertheless, it directly supports
Palmer’s version of the incident and his characterization that the shooting was an accident.
Because Palmer is unable to show resulting prejudice, the error was at most harmless, and
we do not find Palmer’s attorney ineffective for failing to object.
¶18.
Next, Palmer complains about a statement Cole allegedly made to Officer Trussell.
Officer Trussell testified that Cole told him he saw a black man enter Manning’s room
carrying a gun.
The man pointed the gun at Manning, told Manning “I got your
motherf–king a-s now,” and then he told Cole and Pops to get out.
¶19.
While this testimony is hearsay, Palmer’s attorney did not object to its admission. The
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decision of whether to “‘make certain objections fall[s] within the ambit of trial strategy’ and
cannot give rise to an ineffective[-]assistance[-]of[-]counsel claim.” Jackson v. State, 815
So. 2d 1196, 1200 (¶8) (Miss. 2002) (quoting Cole v. State, 666 So. 2d 767, 777 (Miss.
1995)). In assessing whether an attorney’s representation meets constitutional standards, our
supreme court has reasoned:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.
Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991) (internal citation omitted) (quoting Lambert
v. State, 462 So. 2d 308, 316 (Miss. 1984)).
¶20.
Officer Trussell did not testify that Cole identified Palmer as the man with the
shotgun. Also, Cole’s alleged statement did not contradict Palmer’s testimony that he
entered the apartment armed with a shotgun. In fact, it is quite similar to Palmer’s admission
that when he entered Manning’s apartment, he told him he was tired of “y’all F-ing with me,”
and that he was going to “beat [Manning’s] a-s.” The difference, though, is that Palmer did
not mention pointing the gun at Manning and did not recall anyone else in Manning’s
apartment.
¶21.
We are instructed to assess the totality of the circumstances in determining whether
Palmer’s counsel’s assistance was effective. Wiley v. State, 750 So. 2d 1193, 1199 (¶11)
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(Miss. 1999). Based on the circumstances before us, we do not find the admission of Officer
Trussell’s testimony creates a miscarriage of justice. We certainly cannot say that absent the
exclusion of Officer Trussell’s testimony, the jury would have reached a different outcome.
See Rankin, 636 So. 2d at 656.
¶22.
The State’s case did not depend solely on Officer Trussell’s testimony. Palmer
testified he armed himself with the sawed-off shotgun before entering Manning’s apartment.
The State also offered several witnesses placing Palmer in possession of the firearm. In
addition, the jury heard evidence of Palmer’s initial false exculpatory statement to law
enforcement that Manning was the aggressor with the shotgun. Further, expert testimony
contradicted Palmer’s version of the events leading to Manning’s death. And Palmer fled
from the apartment after the shooting and hid the weapon. Our supreme court has long
instructed that evidence of flight is probative of guilt or guilty knowledge. See Brown v.
State, 690 So. 2d 276, 294 (Miss. 1996); Lee v. State, 457 So. 2d 920, 923 (Miss. 1984).
¶23.
Due to the overwhelming evidence of Palmer’s guilt, we find any errors resulting from
the admission of these two statements harmless. Thus, Palmer’s attorney was not deficient
for failing to object to the complained of testimony.
B.
¶24.
The Third Interview
The State introduced three videotaped interviews of Palmer. Palmer takes issue with
his attorney’s failure to object to the introduction of his third statement to the police. He
contends he did not voluntarily waive his Sixth Amendment right to counsel before this
interview and that his attorney should have attempted to exclude the video. Alternatively,
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he contends that if any waiver did occur, it was limited in scope to issues surrounding his
wife’s arrest.
¶25.
“A statement by the accused is admissible if the accused was given the Miranda
warnings, and then knowingly, intelligently and voluntarily waived the rights.” Prater v.
State, 18 So. 3d 884, 893 (¶34) (Miss. Ct. App. 2009) (quoting Busick v. State, 906 So. 2d
846, 855 (¶16) (Miss. Ct. App. 2005)).
¶26.
Palmer signed a waiver of his Miranda rights prior to engaging in his third
conversation with the police. See Miranda v. Arizona, 384 U.S. 436 (1966). It is also
important that Palmer initiated contact with the officers. Though Palmer’s initial concern
dealt with his wife’s arrest, he made clear he also wished to speak generally about his case.
He also maintained he understood his Miranda rights. Further, Palmer asked the officers if
he was free to end the interview at any time, and the officers made clear that he had the right
to terminate the interview at any time. They also advised Palmer he was free to refuse to
answer any questions.
¶27.
Though Palmer had appointed counsel, he claims he was unable to discuss his case
with his attorney prior to the interview and that other public defenders were unavailable.
Palmer relies on Justice Stevens’s recent dissent in Montejo v. Louisiana, 129 S. Ct. 2079,
2094 (2009) (Stevens, J., dissenting), to support his invalid waiver argument.
¶28.
We first point out that Justice Stevens’s dissent is not controlling law. But more
importantly, Montejo dealt with a police-initiated interview following appointment of
counsel. Here, Palmer, not the police, initiated the interview. Thus, we find Nelson v. State,
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10 So. 3d 898 (Miss. 2009), more applicable. In Nelson, our supreme court dealt with a
similar Sixth Amendment waiver issue and reiterated:
Nothing in the Sixth Amendment prevents a suspect charged with a crime and
represented by counsel from voluntarily choosing, on his own, to speak with
police in the absence of an attorney. Although a defendant may sometimes
later regret his decision to speak with police, the Sixth Amendment does not
disable a criminal defendant from exercising his free will.
Nelson, 10 So. 3d at 991 (¶55) (quoting Mettetal v. State, 602 So. 2d 864, 868 (Miss. 1992));
see also Hunter v. State, 684 So. 2d 625, 632 (Miss. 1996) (“The law is well established that
an accused person can waive his right to counsel by initiating conversation with law
enforcement.”). Nelson falls squarely in line with the United States Supreme Court’s holding
in Montejo. These two cases notwithstanding, Palmer’s limited waiver argument is not
supported by the record.
¶29.
Thus, we find Palmer knowingly, intelligently, and voluntarily waived his rights to
counsel prior to the third interview. Because we find no error in the introduction of the
videotape of this interview, his trial attorney was not ineffective for failing to object to its
admission.
II.
¶30.
Physical Evidence
Palmer’s next claim stems from his attorney’s failure to inspect physical evidence
possessed by the State. We point out that Palmer does not contend he was deprived of the
opportunity to view the stick and shotgun. Nor does he argue his attorney’s inaction
prejudiced his defense. Rather, he claims his attorney was constitutionally ineffective for
merely failing to inspect the evidence.
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¶31.
“The duty to investigate and prepare is not limitless[.]” Thorson v. State, 994 So. 2d
707, 719 (¶31) (Miss. 2007) (quoting Brown v. State, 798 So. 2d 481, 496 (¶22) (Miss.
2001)). And criminal defense attorneys are “not required to pursue every path until it bears
fruit or until all conceivable hope withers.” Id. (quoting Brown, 798 So. 2d at 496 (¶22)).
¶32.
Palmer admitted carrying the stick and shotgun. He even led investigators to the site
where he disposed of the shotgun. Palmer’s entire defense was based on his theory of an
accidental shooting, and he fails to demonstrate how the outcome of his trial would have
differed had his attorney inspected these items. Accordingly, this issue is without merit.
¶33.
Seeing no constitutionally deficient performance by trial counsel, we affirm Palmer’s
conviction and sentence.
¶34. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE
AND ROBERTS, JJ., CONCUR.
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