Cedrick Lowery v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-02075-COA
CEDRICK LOWERY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
09/29/2000
HON. C. E. MORGAN III
ATTALA COUNTY CIRCUIT COURT
ROSALIND HAYDEN JORDAN
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DOUG EVANS
CRIMINAL - FELONY
CONVICTION OF MOTOR VEHICLE THEFT.
SENTENCED TO FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
AFFIRMED - 1/8/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
1/29/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Cedric Lowery was convicted of motor vehicle theft in the Circuit Court of Attala County, Mississippi.
Lowery was sentenced to serve a term of five years in the custody of the Mississippi Department of
Corrections. Aggrieved by the conviction rendered against him, Lowery filed this appeal and cites three
issues as error. First, he argues that he was denied the right to testify at trial. Next, he argues that he was
denied effective assistance of counsel at trial. Lastly, Lowery argues that the circuit court erred when it
failed to give an accomplice jury instruction.
¶2. Finding no error, we affirm.
FACTS
¶3. Lowery and his accomplice Johnson test drove a truck held for sale at a used car lot owned by the
victim, Mr. Henry Burnley, Jr. While test driving the truck, Lowery had a copy of the truck keys made. A
few days later the truck was stolen from Mr. Burnley's lot. Lowery and Johnson were arrested for the theft
of the truck after they were spotted driving it by a member of Mr. Burnley's family.
LAW AND ANALYSIS
I. WAS LOWERY DENIED HIS CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN
BEHALF?
¶4. The court in Dizon v. State, 749 So. 2d 996 (¶14) (Miss. 1999) stated, "As this Court stated in
Culberson, if an accused is denied the right to testify on his own behalf, it is a constitutional violation
regardless of whether the denial is a result of a refusal by the court or a refusal by the accused's counsel to
allow the accused to testify."
¶5. There is nothing in the record to support Lowery's contention that he was unaware of his right to testify
on his own behalf. After both parties had rested, the attorneys met at the bench for a conference with the
judge. At that time, Lowery's attorney indicated that his client was considering whether he was going to
take the stand. After the bench conference, counsel for Lowery stated,"Well he's not going to take it, but I
kind of want to get in the record that it's his decision, not mine." The substance of this statement leaves us to
believe that Lowery's attorney was ensuring that the court knew that his client had indicated to him that he
was not serious about wanting to testify and that if the court did re-open the defense's case, Lowery would
not take the stand in his own defense. Given these facts, this Court finds that Lowery was not denied his
right to testify. The facts show that Lowery knew he had such a right if he wanted to exercise it. However,
he did not affirmatively state to his counsel or the court that he wished to do so. As such, this Court finds
this allegation of error to be without merit.
II. WAS LOWERY DENIED EFFECTIVE ASSISTANCE OF COUNSEL?
¶6. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington,
466 U.S. 668 (1984). The two-part test set out in Strickland is whether counsel's performance was
deficient and, if so, whether the deficiency prejudiced the defendant to the point that "our confidence in the
correctness of the outcome is undermined." Richardson v. State, 769 So. 2d 230 (¶10) (Miss. Ct. App.
2000). A strong but rebuttable presumption exists that "counsel's conduct falls within a broad range of
reasonable professional assistance." McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). To
overcome this presumption, the defendant must show that "but for" the deficiency a different result would
have occurred. Strickland, 466 U.S. at 694. To meet this burden of proof, Lowery was required to: "[s]
pecifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must
allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the
trial court would have been different." Ford v. State, 708 So. 2d 73 (¶8) (Miss. 1998) (citing Smith v.
State, 434 So. 2d 212, 219 (Miss. 1983)).
¶7. Lowery argues that his counsel was deficient in that he was unprepared for trial. We can find no
evidence in the record to support this statement. It is true that Lowery's counsel had little time to prepare
for trial, but that was due to Lowery's actions and not those of his counsel. Lowery decided to fire his court
appointed counsel one day before trial was scheduled to begin. He then hired Mr. Ray Carter to represent
him. Mr. Carter appeared before the court and secured a two day continuance in order to prepare for trial.
Lowery's argument that this two day period was insufficient for his attorney to prepare the case is without
support. At trial, Mr. Carter responded that he was ready to defend his client. He conducted voir dire,
called nine witnesses in Lowery's defense, vigorously cross-examined the State's witnesses, and submitted
prepared jury instructions. Clearly, Mr. Carter was well-prepared for trial and provided Lowery with
constitutionally effective assistance.
¶8. Lowery also argues that his counsel was deficient in his performance at the motion for new trial. He
asserts vague and unsupported allegations in furtherance of this argument. Lowery's arguments do not meet
the specificity standard cited in Ford, nor has he provided this Court with any evidence to conclude that
"but for" the alleged deficiencies of his counsel's assistance, the outcome of his trial would have been
different.
¶9. Lowery's last argument under this issue refers back to his earlier assertion that his counsel denied him
the right to take the stand. This argument is rejected based on the above stated facts.
III. DID THE TRIAL COURT ERR IN NOT GRANTING AN ACCOMPLICE/CODEFENDANT JURY INSTRUCTION?
¶10. Lowery next argues that the trial court erred in not granting an instruction cautioning the jury that
Johnson's testimony should be weighed with caution. Generally, where accomplice testimony is presented
by the State in a criminal case, the court should instruct the jury to weigh the testimony with caution.
Wansley v. State, 734 So. 2d 193 (¶18) (Miss. Ct. App. 1999). However, a trial court is under no duty to
instruct the jury sua sponte, nor is a court required to submit instructions in addition to those prepared by
the parties. Giles v. State, 650 So. 2d 846, 854 (Miss. 1995). In this case, Lowery did not submit such an
instruction to the court, nor did he request one. Because Lowery failed to submit or request such an
instruction, this argument is procedurally barred.
¶11. Although this Court could rest on the procedural bar, we will look further to ascertain whether Lowery
was injured by the absence of an accomplice instruction. In Wansley, the Court noted that Mississippi Rule
of Appellate Procedure 28(a)(3) would allow the Court to ignore the procedural bar if the Court can
classify the trial court's failure to give the instruction as "plain error." Wansley, 734 So. 2d at (¶21). In order
to determine if the court committed such an error, we must ask whether the witness was actually an
accomplice and was his testimony uncorroborated. Id. (citing Burke v. State, 576 So. 2d 1239, 1242
(Miss. 1991)).
¶12. It is clear that Johnson was in fact Lowery's accomplice. He was present at the initial test drive. He
had possession of the vehicle after it was stolen and he knew that Lowery had possession of the vehicle
after it was stolen. The next step is to determine if his testimony was without corroboration. This question
must be answered in the negative. Statements given by the defendant, law enforcement officers, and several
of the defendants's own witnesses substantiate the testimony given by Johnson. Based upon the foregoing
reasons, this assignment of error is without merit.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION
OF MOTOR VEHICLE THEFT WITH SENTENCE OF FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS ARE
ASSESSED TO THE ATTALA COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND BRANTLEY, JJ., CONCUR.
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