Ya-Sin Alfatir Shabazz v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 96-KA-00473 COA
YA-SIN ALFATIR SHABAZZ
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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
04/05/96
HON. ROBERT H. WALKER
HARRISON COUNTY CIRCUIT COURT
JOSEPH P. HUDSON
JAMES DONALD EVANS III
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
CONO CARANNA
CRIMINAL - FELONY
AGGRAVATED ASSAULT: SENTENCED TO
SERVE A TERM OF 20 YRS. IN THE
CUSTODY OF THE MDOC.
AFFIRMED - 4-21-98
5/5/98
8/3/98
11/5/98
BEFORE BRIDGES, C.J., COLEMAN, AND DIAZ, JJ.
BRIDGES, C.J., FOR THE COURT:
¶1. Shabazz was indicted, tried, and convicted of aggravated assault in the Harrison County Circuit
Court. He was sentenced to serve a term of twenty years in the custody of the Mississippi
Department of Corrections, with placement in an appropriate mental health program. He presents
twelve issues for appellate consideration:
I. THE TRIAL COURT ERRED IN FAILING TO HOLD A COMPETENCY HEARING AS
REQUIRED BY THE MISSISSIPPI UNIFORM CIRCUIT AND COUNTY COURT RULES,
RULE 9.06.
II. THE TRIAL COURT ERRED IN FAILING TO MAKE REQUIRED SPECIFIC
FINDINGS BEFORE ISSUING AN ORDER TO FORCIBLY MEDICATE THE
DEFENDANT.
III. IT WAS IMPROPER FOR APPELLANT TO BE FORCIBLY MEDICATED BEYOND
THE POINT THAT HE WAS FOUND COMPETENT AND NO LONGER A DANGER TO
HIMSELF OR TO OTHERS.
IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
TRIAL COUNSEL EFFECTIVELY WAIVED A HEARING ON THE ISSUE OF
APPELLANT'S MENTAL COMPETENCY IN VIOLATION OF RULE 9.06 OF THE
MISSISSIPPI UNIFORM RULES OF CIRCUIT AND COUNTY COURT.
V. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
TRIAL COUNSEL ACQUIESCED ON THE ISSUE OF APPELLANT'S COMPETENCY TO
STAND TRIAL AND TO BE SENTENCED BY RELYING ON THE STATE'S EXPERTS'
OPINIONS.
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S
REQUESTS FOR A SENTENCING AND RE-SENTENCING HEARING.
VII. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE CERTAIN
EXHIBITS WHEN SUCH ITEMS HAD NOT BEEN PROPERLY AUTHENTICATED AND
A PROPER CHAIN OF CUSTODY HAD NOT BEEN ESTABLISHED BY THE STATE.
VIII. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE AN
INFLAMMATORY AND PREJUDICIAL PHOTOGRAPH OF THE VICTIM WHICH
UNFAIRLY PREJUDICED THE JURY.
IX. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-1M.
X. THE TRIAL COURT ERRED IN WITHDRAWING JURY INSTRUCTION C-50 AND
ALTERNATIVELY GRANTING JURY INSTRUCTION S-5.
XI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A
LESSER-INCLUDED-OFFENSE INSTRUCTION.
XII. WHETHER APPELLANT'S TWENTY YEAR SENTENCE IS HARSH UNDER THE
CIRCUMSTANCES OF THIS CASE SUCH THAT THE PENALTY VIOLATES THE
EIGHTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 3, SECTION 28
OF THE MISSISSIPPI CONSTITUTION.
¶2. Finding no error, we affirm the conviction of aggravated assault and sentence of twenty years in
the custody of the MDOC.
FACTS
¶3. Shabazz was a life-long resident of the coast, and during summer vacations from Yale University,
he returned home and worked for the local Sun-Herald newspaper. After college, Shabazz worked
for a newspaper in Miami. At some point, Shabazz returned to the coast, but did not work at the
newspaper. One of his fellow employees while he was at the Sun-Herald was Riva Brown. Shabazz
and Brown were both Knight-Ridder scholarship recipients, and also worked on community projects
together. The two were friends, but were never involved romantically.
¶4. On the evening of July 18, 1994, at approximately 6:30 P.M., Brown, a full time employee of the
Sun-Herald, left the office and headed across the parking lot to her car. She saw Shabazz sitting in a
car in the parking lot. Brown approached Shabazz's car in an effort to speak, but whenever Brown
got close to the car Shabazz would pull away. Brown finally gave up and went to her own car to go
home. Brown got in her car and was about to back out when she realized that Shabazz had pulled up
behind her and blocked her in. She then saw Shabazz rushing hurriedly towards her car holding
something down in his hand. Brown testified that the next thing she knew, her drivers' side window
blew out. She felt something hit her arm, and experienced sharp pain in her left arm and lower
abdomen. At that point, Brown looked up to see Shabazz pointing a shotgun at her head. The gun
clicked again, but did not go off. She did not see any other person with Shabazz. Brown immediately
crawled to the passenger's side of the car, got out, and ran back to the office to get help. Brown
received severe injuries to her left arm (she is left-handed) and her abdomen. She had fourteen holes
in her intestines, and has had a total of four reconstructive surgeries on her arm and abdomen. As a
result of the shotgun blast, Brown's body is and will remain full of lead pellets.
¶5. Michael Tonos, executive editor of the Sun-Herald, testified that he saw Brown walking to her
car on the evening of the shooting. As he noticed that her car was blocked in, he saw Shabazz get out
of the car with a shotgun in his hand, walk to Brown's car, hold it up to Brown's window, and fire.
Tonos did not see anyone besides Brown and Shabazz in the parking lot near her car.
¶6. Shabazz testified of his own version of events. According to Shabazz, he met a guy named Noray
at a fast food restaurant, and elicited his help in shooting Brown's car. Shabazz got the shotgun, the
shells, and a rental car and asked Noray to shoot Brown's car. However, Shabazz testified that he
never asked Noray to actually shoot Brown or harm her. According to Shabazz, he drove Noray to
the parking lot of the Sun-Herald and had him sit low down in the passenger seat so no one would
see him. After pulling in behind Brown, Noray got out of the car, gun in hand, and proceeded to
shoot Brown. Noray then ran back and put the gun in the car and then took off on foot and has not
been seen or heard from since. Shabazz panicked and drove off. He was later arrested after being
pulled over at a service station. Shabazz stated that he wore white gloves during the incident, but
took them off as he drove away. Noray was shorter than Shabazz, weighed less then Shabazz, was
much darker skinned than Shabazz, but still Shabazz testified that the victim and eyewitness were
wrong when they identified Shabazz as the shooter.
¶7. When Shabazz was arrested, police recovered from the car the shotgun, shells and a pair of white
gloves. Shabazz was subsequently jailed, and at the request of his attorneys, was sent to the State
Hospital at Whitfield for psychiatric examination and necessary medication. After being found
competent to stand trial, Shabazz was tried and convicted by a jury after a one day trial.
ANALYSIS
I. THE TRIAL COURT ERRED IN FAILING TO HOLD A COMPETENCY HEARING AS
REQUIRED BY THE MISSISSIPPI UNIFORM CIRCUIT AND COUNTY COURT RULES,
RULE 9.06.
¶8. Shabazz complains that the trial court erred in not holding a competency hearing before
proceeding to trial. However, Shabazz's attorneys at the time, the same attorneys representing him on
this appeal, petitioned the court on August 5, 1994, to place Shabazz in the state hospital for
evaluation. The trial court granted the petition and ordered that Shabazz be evaluated to determine
whether he had a factual and rational understanding of the proceedings against him, as well as the
ability to reasonably assist his attorney in his defense and to evaluate his state of mind at the time of
the alleged offense. In its order, the trial court also stated that Shabazz receive any and all necessary
treatments and procedures. The trial court noted in its order that Shabazz's attorneys consented to
such treatment on behalf of Shabazz in accordance with Rule 4.08 of the Mississippi Uniform Rules
of Circuit Court Practice.
¶9. Subsequently, Shabazz petitioned the court for an order setting a date for a competency hearing.
A competency hearing was was held on March 2, 1995. Several experts testified at the hearing: Drs.
Reb McMichael, Deborah Giorgi-Guarnieri and Henry Maggio. Dr. McMichael, a psychiatrist
practicing at the State Hospital at Whitfield, testified that he had had approximately twelve to fifteen
formal interviews with Shabazz as well as informal contact while on rounds. Additionally, he and the
other doctors conducted another interview the morning of the hearing. It was Dr. McMichael's
opinion that Shabazz was mentally ill and in need of further in-patient evaluation and treatment to
determine Shabazz's fitness to be tried. Additionally, Shabazz needed treatment with anti-psychotic
drugs for a complete evaluation. Dr. McMichael testified that such evaluation and treatment was
medically necessary and appropriate.
¶10. Dr. Giorgi-Guarnieri, a psychiatrist and professor at Tulane University, examined Shabazz at the
request of the defense. She testified that she was in complete agreement with Dr. McMichael's
opinion. Additionally, Dr. Maggio, a psychiatrist in private practice, testified that he was in complete
agreement with both Dr. McMichael and Dr. Giorgi-Guarnieri. After the testimony of the three
experts, the State rested and counsel for Shabazz deferred to the recommendations of the doctors
that Shabazz needed further evaluation and medication. The trial court then found that Shabazz was
mentally ill and in need of further evaluation and treatment, including any medical treatment.
¶11. Three months later, attorneys Hudson and Evans withdrew as counsel and the court appointed
attorney Holt Montgomery. In November 1995, Shabazz filed a notice of intent to use the insanity
defense. An insanity defense was entered and was not withdrawn until February 5, 1996, the day
before the trial was set to begin. A hearing was held at which the trial court and attorneys for each
party discussed the final opinions submitted by the psychiatric experts on the issue of Shabazz's
competency to stand trial. Attorney Montgomery made it exceedingly clear that he had counseled his
client not to give up the insanity defense, but Shabazz had insisted on withdrawing it. Drs.
McMichael and Maggio had submitted reports to the trial court stating their opinions on Shabazz's
competency to stand trial. The trial court sua sponte made the following reports exhibits to the
hearing: report of Dr. Henry Maggio, dated January 31, 1996; report of Dr. Reb McMichael, dated
October 25, 1995; and report of psychologist Chris Lott, dated October 25, 1995. The trial court
asked both parties whether they wanted any other reports attached as exhibits, and Montgomery
replied that those would be sufficient. The trial court then found that based upon the reports of the
psychiatric experts, Shabazz was competent to assist counsel and stand trial, and was sane at the time
of the alleged incident.
¶12. Shabazz was asked whether he agreed with his attorney's statements and truly desired
withdrawing his insanity defense. Shabazz replied that he did desire withdrawing the insanity defense,
that he had no questions, and that he understood that his case would proceed to trial the next day.
Shabazz then told the trial court that he wanted to file a motion for denial of a speedy trial. The trial
court told Shabazz that he could discuss that motion with his attorney. Montgomery stated that while
he already had two experts to testify in support of the insanity defense, he nonetheless admitted that
the expert opinions of Drs. McMichael and Maggio finding Shabazz competent to stand trial
supported Shabazz's decision to withdraw the insanity defense. Montgomery admitted that everyone
agreed that Shabazz was competent to confer with his attorney.
¶13. On appeal, Shabazz claims that he was denied a competency hearing and that such error requires
reversal. However, while Shabazz claims a violation of his rights under Rule 9.06 of the Mississippi
Uniform Circuit and County Court Rules, he does not claim that he was not competent to stand trial.
After reviewing the record and the exhibits, we are not persuaded that Shabazz was denied a
competency hearing, but instead feel that the trial court did everything in its power to safeguard
Shabazz's rights and well-being.
Rule 9.06 URCCC states:
If before or during trial the court, of its own motion or upon motion of an attorney, has
reasonable ground to believe that the defendant is incompetent to stand trial, the court shall
order the defendant to submit to a mental examination by some competent psychiatrist. . . .
After the examination the court shall conduct a hearing to determine if the defendant is
competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and
make a determination of whether the defendant is competent to stand trial. If the court finds
that the defendant is incompetent to stand trial, then the court shall commit the defendant to the
Mississippi State Hospital. . . .
The defendant's attorney, as the defendant's representative, shall not waive any hearing
authorized by this rule, but is authorized to consent, on behalf of the defendant, to necessary
surgical or medical treatment and procedures.
If at any time during such commitment, the court decides, after a hearing, that the defendant is
competent to stand trial, it shall enter its order so finding and declaring the defendant competent
to stand trial, after which the court shall proceed to trial.
¶14. In Shabazz's case, his attorney's petitioned for and were granted an evaluation of Shabazz. After
the evaluation, the court held a full-blown competency hearing in accordance with Rule 9.06. Three
fully qualified experts who had interviewed and evaluated Shabazz testified that he was incompetent
to stand trial. Shabazz's attorneys deferred to the experts' opinions and consented to any necessary
treatment and medication. As the case proceeded toward trial, Shabazz led everyone to believe that
he would be presenting an insanity defense. However, the day before trial, Shabazz withdrew that
defense. The trial court then correctly addressed the issue of Shabazz's competency to stand trial.
While the experts were not present at the hearing, the trial court had all the most recent reports from
Drs. Maggio and McMichael. It was the opinion of those doctors that Shabazz was competent to
stand trial and that he was sane at the time of the alleged incident. The court also talked to and
observed Shabazz at the hearing. The trial court gave Shabazz's counsel the opportunity to submit his
own reports into the record, but he declined. After reviewing the reports of the experts and observing
Shabazz, the trial court found that Shabazz was competent to stand trial, and that trial would
commence the next day.
¶15. In Conner v. State, 632 So. 2d 1239, 1248 (Miss. 1993), the Mississippi Supreme Court
addressed the issue of the trial court's responsibility to hold a competency hearing. If reasonable
grounds exist to believe that the defendant may be insane, the trial court must hold a competency
hearing. Id. "The determination of what is 'reasonable,' of course, rests largely within the discretion of
the trial judge. He sees the evidence first hand; he observes the demeanor and behavior of the
defendant." Id. Conner did not have a competency hearing, and the supreme court was not persuaded
on appeal that the trial court committed error in failing to have such a hearing. Id. at 1251. Shabazz,
on the other hand, had two hearings to determine his competency to stand trial. The first hearing was
held in March 1995. The second hearing, while not formally labeled a competency hearing,
nonetheless explored and investigated Shabazz's competency to stand trial. In Howard v. State, 701
So. 2d 274, 280 (Miss. 1997), the supreme court reiterated that "the trial judge has an ongoing
responsibility to prevent the trial of an accused unable to assist in his own defense." The court in
Howard also reminded readers that in Conner it ruled "that the trial court did not err in failing to
order a competency hearing sua sponte, as the trial judge had the benefit of the psychiatrist's report as
well as the benefit of observing the defendant's demeanor. . . ." Id. at 281. The record is clear in the
instant case that Shabazz was afforded a formal competency hearing in March 1995, as well as a
hearing on his competency the day before his trial in February 1996. The judge made certain that
Shabazz was competent to stand trial, and we have not been made aware of any prejudice suffered by
Shabazz in this regard. This issue is meritless.
II. THE TRIAL COURT ERRED IN FAILING TO MAKE REQUIRED SPECIFIC
FINDINGS BEFORE ISSUING AN ORDER TO FORCIBLY MEDICATE THE
DEFENDANT.
¶16. Shabazz claims that he was denied due process when the trial court ordered that he be forcibly
medicated without making specific findings that there was an essential state interest and no other less
intrusive means. Shabazz bases his claim on the United State's Supreme Court's decision in Riggins
v. Nevada, 504 U.S. 127 (1992) which has been interpreted on only one occasion by the Mississippi
Supreme Court in Harrison v. State, 635 So. 2d 894 (Miss. 1994). Riggins was medicated before his
trial for robbery and murder after he complained of hearing voices and being unable to sleep.
Riggins, 504 U.S. at 127. However, after he was found competent to stand trial, Riggins moved for
the medication to be suspended during trial because the medication would affect his demeanor, and
he wanted the jury to see his true mental state since he was using an insanity defense. Id. A hearing
was held on the motion, and the trial court denied the request in a one page order. Id. In its one page
order, the trial court failed to indicate in any way its rationale behind continuing the forced
medication. Id. The Supreme Court held that once Riggins's motion to suspend the treatment was
denied, then the administration of the drug became involuntary. Id. at 133. The burden then shifted
to the State to show the necessity for the drug Mellaril and its medical appropriateness. Id. at 135.
Because the State failed to make such proof and the trial court failed to make any specific findings
about an overriding state interest or any consideration of less intrusive means, the United State's
Supreme Court reversed Riggins's conviction and remanded for a new trial. Id. at 138.
¶17. In Harrison v. State, 635 So. 2d 894, 902-03 (Miss. 1994), the Mississippi Supreme Court was
faced with an appeal in which Harrison claimed that the trial court erred when it granted the State's
motion to administer to the defendant injections of Haldol. The trial court held a hearing on the issue
at which the State presented witnesses that testified to Harrison's need for the injections. Id. at 903.
Harrison cross-examined the State's witnesses, but presented no witnesses in opposition. Id. The trial
court authorized continued injections. Id. In Harrison, as in Riggins, the defendant objected to the
involuntary, forcible medication. The Mississippi Supreme Court recognized the reasoning behind the
Riggins case and held:
Specifically, we hold that involuntary treatment of the criminally accused with antipsychotic
medication is permissible only where medically appropriate and, considering less intrusive
alternatives, essential for safeguarding a compelling state interest.
Harrison, 635 So. 2d at 905-06. However, the supreme court held that "although Harrison was
medicated without the requisite findings, any potential prejudice was eliminated when he withdrew
his insanity defense." Id. at 906.
¶18. Shabazz's case is different from both Riggins and Harrison. At Shabazz's competency hearing,
Dr. Reb McMichael testified that Shabazz was mentally ill and needed further evaluation as well as
treatment with anti-psychotic drugs, even against his will if necessary. In response to questioning,
McMichael replied that medication was necessary and that it was medically appropriate. The two
other medical experts agreed with Dr. McMichael. Shabazz did not question any of the witnesses, nor
did he present any witnesses of his own to protest any medication. In fact, Shabazz's counsel deferred
to the recommendations of the experts that Shabazz needed further evaluation and medication. The
trial court found that Shabazz's further evaluation and possible medication was medically necessary
and appropriate based on the opinions of the three experts.
¶19. Unlike the defendants in Riggins and Harrison, Shabazz never objected to being medicated.
Three experts agreed that medication was necessary to aid in Shabazz's evaluation. His attorney's
agreed and deferred to the experts' opinions. Under Rule 9.06, an attorney may accept medication on
behalf of his client. Because Shabazz never objected, the State was never compelled to prove that
there was an overriding state interest. Nonetheless, the trial court found that any such medication was
medically necessary and appropriate. We are unconvinced that the trial court erred in any way in
holding that Shabazz could be medicated during the evaluation process. Shabazz, by and through his
attorneys, agreed to the medication, and the trial court based its findings on the expert testimony of
three qualified psychiatrists. This issue has no merit.
III. IT WAS IMPROPER FOR APPELLANT TO BE FORCIBLY MEDICATED BEYOND
THE POINT THAT HE WAS FOUND COMPETENT AND NO LONGER A DANGER TO
HIMSELF OR TO OTHERS.
¶20. For this issue, Shabazz does no more than re-word his previous argument against forcible
medication. He adds nothing new to persuade us that anything improper or erroneous took place in
the trial court regarding his medication while being evaluated. Again, he fails to show us that at any
time he objected to any medication. The first mention of any objection to medication came in
Shabazz's amended motion for JNOV or, in the alternative, new trial. The record itself is unclear
about when Shabazz was medicated, but it is obvious that no objection was ever made, and therefore,
the trial court cannot be found in error for a decision it never had the opportunity to make.
Livingston v. State, 525 So. 2d 1300, 1303 (Miss. 1988). The record is clear that Shabazz's counsel
deferred to the experts' opinions that medication was necessary to complete an evaluation. Again, this
issue is without merit.
IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
TRIAL COUNSEL EFFECTIVELY WAIVED A HEARING ON THE ISSUE OF
APPELLANT'S MENTAL COMPETENCY IN VIOLATION OF RULE 9.06 OF THE
MISSISSIPPI UNIFORM RULES OF CIRCUIT AND COUNTY COURT.
V. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
TRIAL COUNSEL ACQUIESCED ON THE ISSUE OF APPELLANT'S COMPETENCY TO
STAND TRIAL AND TO BE SENTENCED BY RELYING ON THE STATE'S EXPERTS'S
OPINIONS WITHOUT THE BENEFIT OF AN OPINION BY DEFENDANT'S OWN
EXPERT.
¶21. Again, Shabazz complains about being denied a competency hearing. This time, instead of
blaming the trial court, he blames his trial counsel. Additionally, while he does not complain about his
current counsel acquiescing to the experts' opinions on the issue of medication, he does complain
about the trial counsel that acquiesced to the experts' opinions on his competency. (Shabazz's current
attorneys represented him until a few months before trial. New counsel took over for trial, and then
his current attorneys returned to work on the appeal.)
¶22. Shabazz first complains that he received ineffective assistance of counsel when his trial counsel
effectively waived a competency hearing. The Mississippi Supreme Court adopted the Strickland v.
Washington, 466 U.S. 668, 687-96 (1984), standard for evaluating ineffective assistance of counsel
claims. Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995). A defendant has to show that his
attorney's performance was deficient and that the deficiency was so substantial as to deprive the
defendant of a fair trial. Id. We require that the defendant prove both elements. Brown v. State, 626
So. 2d 114, 115 (Miss. 1993); Wilcher v. State, 479 So. 2d 710, 713 (Miss. 1985). In any case
presenting an ineffective assistance of counsel claim, the performance inquiry must be whether
counsel's assistance was reasonable considering all the circumstances. Foster v. State, 687 So. 2d
1124, 1129 (Miss. 1996). This is measured by a totality of the circumstances, and thus, the Court
must look at counsel's over-all performance. Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996).
There is no constitutional right to errorless counsel. Foster, 687 So. 2d at 1130. "Judicial scrutiny of
counsel's performance must be highly deferential." Strickland, 466 U.S. at 689.
[T]here is a strong presumption that counsel's performance falls within the range of reasonable
professional assistance. To overcome this presumption, "[t]he defendant must show that there is
a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Schmitt v. State, 560 So. 2d 148, 154 (Miss. 1990) (quoting Strickland, 466 U.S. at 694).
¶23. We have already addressed Shabazz's claim that he was denied a competency hearing before trial
and found that the pre-trial hearing the day before the trial was sufficient to determine his
competency to stand trial. It was at that hearing that Shabazz insisted that his insanity defense be
withdrawn. His counsel argued very strongly against withdrawing the insanity defense. In fact,
Shabazz's counsel went to great lengths to explain to the trial court the thorough investigatory job he
did to find a way to keep the insanity defense for his client. However, it was Shabazz's decision to
make, and he did so against the express advice of his attorney. We fail to see how Shabazz's counsel
was deficient, or how the result of his trial would have been different. Shabazz was afforded not one,
but two competency hearings, and his counsel's performance was in no way deficient.
¶24. Additionally, Shabazz faults his counsel for failing to present his own expert's opinion. However,
the cases cited by Shabazz deal with instances in which the State has denied a defendant access to a
competent psychiatrist to conduct an evaluation. That is not the situation in the instant case. Shabazz
was never denied access to an expert. Instead, his counsel chose not to present her testimony in light
of Shabazz's insistence on withdrawing the insanity defense. His expert, who had examined and
evaluated Shabazz, was Dr. Deborah Giorgi-Guarnieri. Counsel explained at the hearing that he had
planned on calling Dr. Giorgi-Guarnieri and another expert to testify at trial if Shabazz had stuck with
his insanity defense. However, Shabazz insisted that he was competent, and the State's experts all
concluded that he was competent to confer with his attorney and stand trial. In matters of strategy,
"[a]ttorneys are permitted wide latitude. . . ." Hiter v. State, 660 So.2d 961, 965 (Miss. 1995).
Shabazz's counsel's hands were tied because of his client's insistence on withdrawing the insanity
defense and proceeding as a competent defendant. Counsel for Shabazz admitted that the State's
experts agreed that Shabazz was competent, but we are unconvinced that such agreement on the part
of Shabazz's counsel was error amounting to ineffective assistance. After reviewing the entire record
and in light of the total circumstances, we fail to see any instance where Shabazz's counsel was
anything but a zealous advocate on his client's behalf. Shabazz has failed to prove any error or that
any error was so prejudicial as to deprive him of a fair trial. This issue has no merit.
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S
REQUESTS FOR A SENTENCING AND RE-SENTENCING HEARING.
¶25. Shabazz was sentenced to serve a term of twenty years in the custody of the Mississippi
Department of Corrections. Twenty years is the maximum sentence allowable under the statute. It
was in the trial court's discretion whether to grant a sentencing hearing and/or a re-sentencing
hearing. Shabazz was already sentenced before he asked for a sentencing hearing or a sentencing
report, so he asked for a re-sentencing hearing in light of his mental illness. In failing to ask for a
separate sentencing hearing before he was sentenced, Shabazz has waived the issue for appeal. "[D]
efendant's failure at the time of sentencing to request a separate hearing would preclude his now
raising the point, even if it had substantive merit." Wallace v. State, 607 So. 2d 1184, 1190 (Miss.
1992). Moreover, it was in the trial court's discretion whether to grant a re-sentencing hearing. Id. at
1191. The trial court was certainly familiar with Shabazz's history and knew of any mitigating factors.
Ultimately, the trial court ordered that Shabazz be placed in a mental health program while serving
his sentence. Shabazz has failed to show any error, and this issue is meritless.
VII. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE CERTAIN
EXHIBITS WHEN SUCH ITEMS HAD NOT BEEN PROPERLY AUTHENTICATED AND
A PROPER CHAIN OF CUSTODY HAD NOT BEEN ESTABLISHED BY THE STATE.
¶26. Shabazz complains that certain items entered into evidence, including the shotgun shells, and
gloves worn by Shabazz, were improperly authenticated, and a chain of custody never established. At
trial, Shabazz objected to the admission of the shotgun, shells, and white gloves, all of which were
taken from his car when he was arrested. The victim testified that Shabazz wore white gloves as he
shot her with a shotgun. After the arresting officers took the items from Shabazz's car, they were
turned over to the investigator, who turned them over to the evidence technician. In response to
Shabazz's objection, the trial court ruled that the evidence had been properly sealed and marked, and
overruled the objection.
¶27. "The test for chain of custody is to ascertain whether there is any evidence of tampering or
substitution of evidence." Wells v. State, 604 So. 2d 271, 277 (Miss. 1992). Neither in the trial court
nor on appeal does Shabazz make any argument that the evidence was ever mishandled, substituted,
or tampered with. "Decisions on the chain of custody are 'largely left to the discretion of the trial
court.'" Id. (citation omitted). While Shabazz criticizes the trial court for admitting the evidence, he
fails to show how the trial court in any way abused its discretion. This issue has no merit.
VIII. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE AN
INFLAMMATORY AND PREJUDICIAL PHOTOGRAPH OF THE VICTIM WHICH
UNFAIRLY PREJUDICED THE JURY.
¶28. Again, Shabazz attacks the trial court's discretion in admitting evidence. This time, the trial
court admitted a photograph of the victim over Shabazz's objection. "[T]he admission or exclusion of
evidence, photographs in particular, is within the sound discretion of the trial court and that decision
will be upheld unless there is an abuse of discretion." Walker v. Graham, 582 So. 2d 431, 432
(Miss. 1991). The photograph in the instant case was admitted to show the severity of the wound
and the close range at which it was inflicted. The Mississippi Supreme Court has stated that the fact
that a photograph "might arouse the emotions of the jurors, does not of itself render it incompetent
evidence as long as its introduction serves some useful evidentiary purpose." Kniep v. State, 525 So.
2d 385, 388 (Miss. 1988). Again, Shabazz has failed to convince us that the trial court abused its
discretion in admitting the photograph of the victim.
IX. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-1M.
¶29. The State originally offered instruction S-1, to which the defense objected. The trial court then
had the State modify its instruction, and the result is the following, S-1M:
The Court instructs the jury that the Defendant, YA-SIN ALFATIR SHABAZZ, has been
charged by an Indictment with the criminal offense of Aggravated Assault.
If you find from the evidence in this case beyond a reasonable doubt that:
(1) on or about July 18, 1994, in the First Judicial District of Harrison County, Mississippi,
(2) the Defendant, YA-SIN ALFATIR SHABAZZ while acting alone or in concert with
another, did unlawfully, feloniously, wilfully and purposely caused bodily injury to Riva Renee
Brown,
(3) by shooting her with a deadly weapon, to-wit: a shotgun; and
(4) YA-SIN ALFATIR SHABAZZ, or the other person was not acting in necessary selfdefense,
then you shall find the Defendant Guilty of Aggravated Assault.
If the Prosecution has failed to prove any one or more of the above listed elements, then you
shall find the Defendant Not Guilty.
¶30. Shabazz objected to S-1M on the grounds that the instruction did not properly recreate the
elements of the offense of aggravated assault, and that the instruction charged him in some sort of
conspiracy theory that was outside the scope of the indictment. The trial court noted Shabazz's
objection, but overruled it nonetheless. On appeal, Shabazz claims that the instruction was error
because he could not be found guilty by association with Noray unless Shabazz had knowledge that
Riva Brown would be shot. However, Shabazz admitted at trial that he rented the car, obtained the
shotgun, shells, and white gloves, solicited Noray's assistance, and drove himself and Noray to the
parking lot where Riva Brown was shot. Shabazz argues that since he only thought Noray was going
to shoot Brown's car, he cannot be held accountable for Noray's shooting Brown. We are
unconvinced by this argument. Shabazz orchestrated every bit of the shooting, and according to his
testimony, watched Noray approach Brown's car once Brown was seated inside the car. It is
unimaginable that anyone could shoot the car on the driver's side at close range with a shotgun and
not seriously injure the driver.
¶31. In Mississippi, "any person who is present at the commission of a criminal offense and aids,
counsels, or encourages another in the commission of that offense is an aider and abettor and is
equally guilty with the principal offender." Swinford v. State, 653 So. 2d 912, 915 (Miss. 1995).
Jury instructions may not be given unless there is some evidentiary basis in the record with which to
support them. Perry v. State, 637 So. 2d 871, 877 (Miss. 1994) . According to the victim and
another eyewitness, Shabazz was alone and pulled the trigger, severely injuring Brown. Shabazz, on
the other hand, testified that while he planned the whole incident, he only meant for Noray to shoot
the car. Either way, the court did not err in granting instruction S-1M and the language contained
therein that Shabazz, acting alone or in concert, committed aggravated assault on Riva Brown. This
issue has no merit.
X. THE TRIAL COURT ERRED IN WITHDRAWING JURY INSTRUCTION C-50 AND
ALTERNATIVELY GRANTING JURY INSTRUCTION S-5.
¶32. When the trial court offered instruction C-50, Shabazz objected. The trial court then substituted
the State's instruction S-5 in place of C-50. Instruction S-5 reads as follows:
The Court instructs the jury that each person present at the time and consenting to and
encouraging the commission of a crime, and knowingly, wilfully and feloniously doing any act
which is an element of the crime or immediately connected with it, or leading to its commission,
is as much a principal as if he had with his own hands committed the whole offense.
¶33. Shabazz's objection to S-5 was that it was outside the scope of the indictment and highly
improper. The trial court overruled Shabazz's objection and held that the instruction was proper.
Now on appeal, Shabazz argues that the trial court erred in withdrawing instruction C-50. However,
Shabazz objected to C-50 at trial. He cannot now come back and complain of something that he
made happen. "It is elementary that different grounds than the objections presented to the trial court
cannot be presented for the first time on appeal." Thornhill v. State, 561 So. 2d 1025, 1029 (Miss.
1989). Moreover, Shabazz has failed to persuade us that S-5 is improper. "Aiding and abetting may
be manifested by acts, words, signs, motions, or any conduct which unmistakably evinces a design to
encourage, incite or approve of the crime, or even being present, with the intention of giving
assistance. . . ." Swinford, 653 So. 2d at 915. According to Shabazz's own testimony, he did
everything but pull the trigger. According to the victim and eyewitness, Shabazz did everything
including pulling the trigger. We find no error in granting instruction S-5.
XI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A
LESSER-INCLUDED-OFFENSE INSTRUCTION.
¶34. Shabazz claims that because according to his testimony, he did not pull the trigger and did not
intend for Brown to be shot, that he therefore should have received a lesser-included-offense
instruction on simple assault. We do not agree, nor does case law support Shabazz's contention.
Evidence presented at trial from the victim and an eyewitness showed that Shabazz used a shotgun, a
deadly weapon, to inflict severe bodily injury on Brown which could have caused her death. Even
under Shabazz's version of events, he was responsible for causing Brown's injury, whether he pulled
the trigger or Noray did. The Mississippi Supreme Court has stated that a lesser-included-offense
instruction may be granted where there is an evidentiary basis for such. Hutchinson v. State, 594 So.
2d 17, 18 (Miss. 1992). The difference between aggravated assault and simple assault is clear in the
statutory language. Aggravated assault is committed with a deadly weapon, meant to cause serious
bodily harm or death. Simple assault entails knowingly, recklessly or purposely causing bodily harm
to another. Id. at 18-19. "When an accused wields a weapon that is without question deadly and then
intentionally strikes his victim, he is not entitled to a lesser included offense instruction for simple
assault." Hoops v. State, 681 So. 2d 521, 535 (Miss. 1996) (citing Hutchinson v. State, 594 So. 2d
17, 20 (Miss. 1992). Based on the evidence presented at trial, no fair-minded juror could have found
Shabazz guilty of anything less than aggravated assault. This issue has no merit.
XII. WHETHER APPELLANT'S TWENTY YEAR SENTENCE IS HARSH UNDER THE
CIRCUMSTANCES OF THIS CASE SUCH THAT THE PENALTY VIOLATES THE
EIGHTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 3, SECTION 28
OF THE MISSISSIPPI CONSTITUTION.
¶35. On appeal, Shabazz complains that his twenty year sentence for aggravated assault is harsh and
amounts to cruel and unusual punishment. We disagree. The Mississippi Supreme Court has held on
several occasions that the imposition of sentence is within the trial court's discretion, and "we will not
review the sentence so imposed, if it is within the prescribed limits of the statute." May v. State, 435
So. 2d 1181, 1184 (Miss. 1983). Shabazz presents no case law to the contrary, nor does he argue that
his sentence is outside the limits prescribed by statute. The trial court committed no error in sentencing
Shabazz to twenty years in the custody of the MDOC, with treatment in an appropriate mental health
program.
¶36.THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION
OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF
THIS APPEAL TAXED TO APPELLANT.
McMILLIN, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING, PAYNE, AND
SOUTHWICK, JJ., CONCUR. THOMAS, P.J., NOT PARTICIPATING.
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