Michael Eugene Welch v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01064-COA
MICHAEL EUGENE WELCH
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:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
07/30/2008
HON. ROGER T. CLARK
HARRISON COUNTY CIRCUIT COURT
JUSTIN TAYLOR COOK
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CONO A. CARANNA II
CRIMINAL - FELONY
CONVICTED OF COUNTS I-III,
AGGRAVATED ASSAULT, AND
SENTENCED AS A HABITUAL OFFENDER
TO TWENTY YEARS FOR EACH COUNT,
WITH THE SENTENCE IN COUNT I TO RUN
CONSECUTIVELY TO THE SENTENCES IN
COUNTS II AND III, THE SENTENCE IN
COUNT II TO RUN CONSECUTIVELY TO
THE SENTENCE IN COUNT I AND
CONCURRENTLY TO THE SENTENCE IN
COUNT III, AND THE SENTENCE IN
COUNT III TO RUN CONSECUTIVELY TO
THE SENTENCE IN COUNT I AND
CONCURRENTLY TO THE SENTENCE IN
COUNT II, FOR A TOTAL FOR FORTY
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 10/05/2010
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
To prove aggravated assault, it generally must be shown beyond a reasonable doubt
that the accused purposefully, knowingly, or recklessly caused serious bodily injury to
another. Michael Eugene Welch was indicted, tried, and convicted on three counts of
aggravated assault after opening fire from an automobile upon the occupants of an adjacent
vehicle. In addition to his claim of ineffective assistance of counsel, we are asked whether
the trial court erroneously denied Welch’s motion for a new trial – that is, whether his
conviction is against the overwhelming weight of the evidence. Given the testimonies of the
victims of the shooting and the driver of Welch’s vehicle, we hold that the trial court did not
err and affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On March 21, 2007, at approximately 11:30 p.m., Tony Raiford was driving on
Airport Road in Gulfport, Mississippi, on his way home. Tony was approximately seventeen
years old at the time. Also in Tony’s car were his two younger brothers, Ladarius and
Damion Raiford, his cousin Kevin Henry, and a friend named Allen Barnett.
Their
approximate ages were sixteen, fourteen, eight, and seventeen, respectively. As they slowed
at a stop light, a grey Ford Expedition pulled along beside them in the adjacent lane. A
young woman was driving the Expedition, and a young man was in the front-passenger seat.
The pair was later identified as Jurinea Dunklin and Welch.
¶3.
A conversation ensued between the occupants of both vehicles when Ladarius
mentioned that Dunklin resembled a resident of County Hills, which is a neighborhood next
2
to the Raiford brothers’ neighborhood. But the situation took a turn for the worst when
Barnett made a derogatory comment toward Dunklin. At this point, the traffic light turned
green, and Tony pulled away. However, Dunklin flashed the Expedition’s headlights,
indicating she wanted Tony to stop. At the next traffic light, more words were exchanged
concerning Barnett’s statement, and Welch started shooting. Tony was shot in the shoulder;
Damion was shot in the jaw and neck; and Ladarius was shot in the arm. After the shooting,
Dunklin sped away, and Tony drove to the Gulfport Memorial Hospital.
¶4.
Detective Sergeant Gary Ponthieux, with the Gulfport Police Department, was notified
of the shooting shortly after the boys had been admitted to the hospital. Detective Ponthieux
arrived at the hospital and learned a general description of Dunklin’s vehicle and its two
occupants by interviewing Ladarius . But Barnett had taken Tony’s vehicle and driven Kevin
to the Oneal Road Apartments complex. Once Detective Ponthieux was finished at the
hospital, he proceeded to Oneal Road Apartments. Once there, he inspected Tony’s vehicle
and interviewed Barnett. During the interview, Barnett’s statement was consistent with what
Detective Ponthieux had learned at the hospital.
¶5.
The Expedition involved in the shooting was found the next day. It was found at the
residence of Adam Lemay, who is also the vehicle’s registered owner and Dunklin’s
husband. Lemay initially stated that he was asleep at the time of the shooting and that he
thought the Expedition was in his garage all night. Detective Ponthieux discounted his
involvement in the shooting because Lemay did not fit the general description of the shooter.
A few days later, on March 25, 2007, Lemay contacted the police department and informed
the police that he had found a .40-caliber-bullet shell while he was cleaning his vehicle. But
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during the investigation the one intact bullet recovered was estimated to be .38-caliber.
During a subsequent interview, Lemay told Detective Ponthieux that he believed Dunklin and
Welch were involved in the shooting.
¶6.
A photographic lineup, or “six pack,” containing a picture of Dunklin was shown to
Tony, Damion, and Ladarius. Tony and Ladarius immediately identified Dunklin as the
driver. But Damion was unable to identify her, as he did not get a very good look at the
driver. Subsequently, after Detective Ponthieux and other police officers executed a search
warrant of Lemay’s home, Dunklin and Welch were arrested. Detective Ponthieux took a
picture of Welch and developed another “six pack” to show the victims. He showed the “six
pack” to Tony, Ladarius, and Damion, separately, and each identified Welch as the person
who had shot them. A few months later, on June 6, 2007, Barnett was also shown the “six
pack” containing Welch’s picture. Barnett also identified Welch as the shooter, but he
changed his story at trial. Additional facts, as needed, will be discussed below.
¶7.
Welch was indicted on three counts of aggravated assault pursuant to Mississippi
Code Annotated section 97-3-7(2)(a) (Supp. 2008). Dunklin was also indicted under the
same multi-count indictment as an accessory-after-the-fact pursuant to Mississippi Code
Annotated section 97-1-5 (Rev. 2006). The indictment was later amended to reflect Welch’s
status as a habitual offender under Mississippi Code Annotated section 99-19-81 (Supp.
2008). Welch’s trial was held on July 29-30, 2008, in the Circuit Court of Harrison County.
At the conclusion of the trial, the jury found Welch guilty of three counts of aggravated
assault. As a result, Welch was sentenced by the trial court as a habitual offender to a total
of forty years in the custody of the Mississippi Department of Corrections. Welch filed a
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motion for a judgment notwithstanding the verdict or, in the alternative, a new trial and a
motion for reconsideration of his sentence. But both motions were denied by the trial court.
Welch subsequently appealed his convictions and sentences.
DISCUSSION
I.
¶8.
WHETHER WELCH’S TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO REQUEST A JURY INSTRUCTION REGARDING
ACCOMPLICE TESTIMONY
As a general rule, claims of ineffective assistance of counsel are better suited for
consideration in post-conviction relief proceedings.1 Therefore, if the issue is raised on direct
appeal, an appellate court should only reach its merits where: “(1) the record affirmatively
shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record
is adequate to allow the appellate court to make the finding without consideration of the
findings of fact of the trial judge.” 2
¶9.
In his brief to this Court, Welch stipulates to the second provision above. Admittedly,
while the State does not explicitly concede that the record is adequate to proceed with a
consideration of the merits of this issue, it does not claim otherwise. Further, the State
affirmatively argues that Welch’s trial counsel was not ineffective. Therefore, we will
proceed with our analysis of Welch’s claim of ineffective assistance of counsel based upon
the parties’ stipulation that the record is adequate to proceed.
¶10.
To prove ineffective assistance of counsel, a defendant must show (1) that his
1
Pittman v. State, 836 So. 2d 779, 788 (¶43) (Miss. Ct. App. 2002).
2
Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (citation omitted).
5
counsel's performance was deficient and (2) that this deficiency prejudiced his defense.3 The
burden of proof rests with the defendant.4 Under Strickland, there is a strong presumption
that counsel’s performance falls within the range of reasonable professional assistance.5 To
overcome this presumption, “[t]he defendant must show that there is a reasonable probability
that, but for the counsel's unprofessional errors, the result of the proceeding would have been
different.” 6 “To prevail on this claim, [the defendant] must show under Strickland that
counsel’s conduct ‘so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.’” 7
¶11.
Welch argues his trial counsel was ineffective because he had failed to request that
the trial court instruct the jury regarding the unreliability of accomplice testimony. In order
to determine if a trial court abused its discretion in refusing to grant an accomplice jury
instruction, it must first be determined that the witness was an accomplice and, second, that
the witness’s testimony was uncorroborated.8 Moving past the initial determination of
whether Dunklin was an accomplice, it is clear that her testimony regarding Welch’s actions
on the night of the shooting were far from uncorroborated. Tony, Damion, and Ladarius
3
Strickland v. Washington, 466 U.S. 668, 687 (1984).
4
McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990).
5
Strickland, 466 U.S. at 689.
6
Id. at 694.
7
Havard v. State, 928 So. 2d 771, 790 (¶32) (Miss. 2006) (quoting Strickland, 466
U.S. at 686).
8
Burke v. State, 576 So. 2d 1239, 1242 (Miss. 1991) (citing Holmes v. State, 481 So.
2d 319, 323 (Miss. 1985)).
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identified Welch from a photographic lineup and at trial as the individual who had shot them.
Therefore, it would have been squarely within the trial court’s discretion as to whether to
grant or deny the jury instruction.
¶12.
Moving to the heart of the issue, even assuming that Welch’s trial counsel’s failure
to request a jury instruction regarding accomplice testimony was deficient representation,
Welch cannot demonstrate that the result of his trial would have been different. Regardless
of whether the trial court chose to grant an accomplice instruction, the same evidence that
corroborates Dunklin’s testimony also prevents Welch from satisfying the second prong of
Strickland. Even if the jury chose not to believe Dunklin’s testimony, or viewed it with
suspicion if so instructed, it cannot be reasonably said that it would have changed its verdict
given the remaining testimonies against Welch. Therefore, we hold that this issue is without
merit.
II.
¶13.
WHETHER THE TRIAL COURT ERRED IN DENYING WELCH’S
MOTION FOR A NEW TRIAL
The standard of review for claims that a defendant’s motion for a new trial was
wrongfully denied is stated as follows:
[An appellate court] 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. A new trial will not be ordered
unless the verdict is so contrary to the overwhelming weight of the evidence
that to allow it to stand would sanction unconscionable injustice.9
“There is a presumption that the judgment of the trial court is correct, and the burden is on
9
Valmain v. State, 5 So. 3d 1079, 1086 (¶30) (Miss. 2009) (quoting Todd v. State, 806
So. 2d 1086, 1090 (¶11) (Miss. 2001)).
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the appellant to demonstrate some reversible error to [the appellate court].” 10
¶14.
Section 97-3-7(2)(a) states that “[a] person is guilty of aggravated assault if he . . .
attempts to cause serious bodily injury to another, or causes injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human life.”
Although Welch argues that none of the State’s witnesses were able to identify him as the
shooter, the record is clear that such was not the case. Dunklin testified that Welch was the
shooter. And this was corroborated by the three victims. This is not to say that there were
not inconsistencies in all the testimonies heard by the jury. Welch testified that Lemay was
also in the vehicle and was the actual shooter. He explained that Lemay used a .38-caliber
revolver and threw the gun over a bridge. Additionally, despite his previous identification
of Welch as the shooter, Barnett’s testimony was consistent with Welch’s. That is, a third
individual, who matched Lemay’s description, was also in the vehicle. Barnett testified that
the third individual was the shooter. Curiously, during his interviews with Detective
Ponthieux, Barnett never mentioned the presence of a third individual. Finally, Melinda
Welch, Welch’s mother, testified that Dunklin and Welch told her that Lemay was setting
them up.
¶15.
But “[i]t is a well-settled principle of law that issues of weight and credibility of [a]
witness[’s] testimony are within the sole province of the jury as fact-finder.”11 Here the jury
heard all the evidence and found Welch guilty. Viewing the evidence the supports that
10
Id. (quoting King v. State, 857 So. 2d 702, 731 (¶104) (Miss. 2003)).
11
King v. State, 798 So. 2d 1258, 1262 (¶14) (Miss. 2001) (citing Humphrey v. State,
759 So. 2d 368, 387 (¶60) (Miss. 2000) (overruled on other grounds)).
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verdicts as true, we cannot say that the trial court abused its discretion in denying Welch’s
motion for a new trial as the weight of the evidence against Welch was substantial. This
issue is without merit.
¶16. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF COUNTS I-III, AGGRAVATED ASSAULT, AND SENTENCE AS
A HABITUAL OFFENDER OF TWENTY YEARS FOR EACH COUNT, WITH THE
SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCES IN
COUNTS II AND III, THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY
TO THE SENTENCE IN COUNT I AND CONCURRENTLY TO THE SENTENCE
IN COUNT III, AND THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY
TO THE SENTENCE IN COUNT I AND CONCURRENTLY TO THE SENTENCE
IN COUNT II, FOR A TOTAL OF FORTY YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
CARLTON AND MAXWELL, JJ., CONCUR.
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