Roosevelt Maxwell v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01583-COA
ROOSEVELT MAXWELL A/K/A ROOSEVELT
MAXWELL, JR.
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:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
8/23/2001
HON. KEITH STARRETT
LINCOLN COUNTY CIRCUIT COURT
JASON E. TATE
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
JAMES DANIEL SMITH
CRIMINAL - FELONY
DEFENDANT FOUND GUILTY OF COUNT I MURDER: SENTENCED TO A TERM OF LIFE IN
THE CUSTODY OF THE MDOC AND COUNT II
- SHOOTING INTO DWELLING HOUSE:
SENTENCED TO SERVE A TERM OF 10 YEARS;
COUNTS I AND II RUNNING
CONCURRENTLY. DEFENDANT ORDERED TO
PAY COURT COSTS, RESTITUTION TO THE
CRIME VICTIM’S COMPENSATION FUND IN
THE AMOUNT OF $3,365 FOR FUNERAL
EXPENSES, AND $500 ATTORNEY’S FEES
AFFIRMED-04/29/2003
EN BANC
IRVING, J., FOR THE COURT:
¶1.
Roosevelt Maxwell, a/k/a Roosevelt Maxwell, Jr., was convicted in the Circuit Court of Lincoln
County on charges of murder and shooting into a dwelling. Feeling aggrieved by the judgment of
conviction, Maxwell has perfected this appeal in which he raises three issues: (1) whether the trial court
erred when it refused to grant his requested lesser-included offense jury instruction on manslaughter, (2)
whether he was denied effective assistance of counsel, and (3) whether the verdict of the jury is against the
overwhelming evidence.
¶2.
We find no merit in these assertions of error; therefore, we affirm the decision of the trial court.
FACTS
¶3.
On March 3, 2000, at approximately 12:58 in the afternoon, several gunshots were fired in the
Blades’ Trailer Park in Lincoln County, Mississippi. Investigator Lance Falvey of the Lincoln County
Sheriff’s Department was dispatched to the trailer park at the corner of Booker and Washington Avenue.
When he arrived, he observed both a number of people gathered in the street and Emergency Medical
Services personnel on the scene. Upon closer examination, he observed Tonya Smith, who had been shot
in the head, lying on the floor of her small trailer home.
¶4.
Falvey inquired whether anyone from the crowd knew what had happened. Someone blurted out
the name “Rockingham,” and the officer broadcasted this name through his dispatch radio. Shortly
thereafter, another officer presented himself on the radio, advised all units to disregard the earlier
“Rockingham” information, and announced he had the actual name of the suspect. That name was
Roosevelt Maxwell.
¶5.
After securing the area and taking initial photographs of the crime scene, Falvey investigated the
trailer and found a trace of daylight piercing through a small hole in the trailer’s fiberglass canopy. He
determined this opening to be a bullet hole. Falvey found no other holes in the trailer’s walls, no shell
casings, nor a murder weapon.
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¶6.
After more officers had arrived, Falvey investigated a trail where the suspect allegedly ran after the
shooting. The trail led the officer to the house of Barry Wade. Falvey noticed that the back door of the
house was kicked it. After surveying the outside of the premises and determining that Wade was not at
his residence, Falvey returned to the crime scene.
¶7.
Approximately an hour after the incident, officers found Maxwell at his mother’s house and arrested
him. Upon arrest, Maxwell was wearing a pullover shirt and black jeans. He appeared dirty with bits of
leaves and trash on his person. Also, he was sweating profusely. Initial eyewitness accounts indicated that
the suspect was wearing a green and yellow striped shirt with a pair of green shorts. After his arrest,
Maxwell was brought to the crime scene.
¶8.
While at the crime scene, a gun residue test was administered to Maxwell by an officer. Maxwell,
soon thereafter, asked to speak solely to Arluster Henderson, the chief of police for the city of
Brookhaven. Maxwell asked Henderson what had transpired, and Henderson informed him that witnesses
had identified Maxwell as the shooter of a lady in the trailer park. Maxwell responded, “I only shot in the
air three or four times.”
¶9.
Maxwell was subsequently indicted for, and convicted of, the murder of Tonya and of shooting
into a dwelling.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. The Lesser-Included Offense Instruction
¶10.
Maxwell argues that the trial court erred by refusing to grant his requested lesser-included offense
jury instruction for manslaughter. While acknowledging that he voluntarily refused to allow the manslaughter
instruction to be submitted to the jury, Maxwell, nevertheless, proclaims that the trial court was ultimately
responsible for refusing to submit the manslaughter instruction to the jury. He therefore explains that since
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the jury was not allowed to consider the manslaughter instruction, his case should be reversed and
remanded.
¶11.
Our supreme court has often stated that a defendant is entitled to have his theory of defense
presented to the jury. Drake v. State, 800 So. 2d 508, 518 (¶42) (Miss. 2001) (citing Triplett v. State,
672 So. 2d 1184, 1186 (Miss.1996)). However, the same court has also recognized that a defendant’s
act of refusing an instruction on a lesser-included offense can sometimes be a sound trial tactic on the part
of the defense. See Hiter v. State, 660 So. 2d 961 (Miss.1995).
¶12.
In Hiter, the defendant declined a manslaughter instruction and pursued a strategy that forced the
jury to choose between convicting the defendant of murder or accepting the proffered theory of selfdefense. Hiter, 660 So. 2d at 965. The Hiter decision made absolutely clear that, where defense
counsel's objection to a manslaughter instruction is part of trial strategy, the mere fact that there was
sufficient evidence on the record to support the manslaughter instruction does not require reversal:
It is clear from the record of facts that there was an evidentiary basis for a manslaughter
instruction. Despite the strong evidentiary basis for the submission of such an instruction,
it is equally clear from the record that counsel purposefully prevented the jury from
considering the lesser included offense . . . . Counsel's decision to refuse a manslaughter
instruction, coupled with his decision to employ a defense based entirely on selfdefense, was apparently his chosen strategy of representation. Attorneys are
permitted wide latitude in their choice and employment of defense strategy.
Id. (emphasis added).
¶13.
The trial judge in this case properly refused to give an instruction on the lesser-included offense of
manslaughter since Maxwell and his counsel objected to such an instruction. In the case-at-bar, as
Maxwell's counsel and the prosecutor reviewed the proposed jury instructions, Maxwell expressly stated
that he did not want a manslaughter instruction given. His intentions were also communicated through his
counsel. Even after Maxwell had refused to allow the instruction to be given, the trial judge revisited the
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issue, and again, Maxwell was unswerving in his position that the instruction should not be given.
Maxwell’s decision was clearly indicative of a strategy to prevent the jury from returning what he feared
may have been a compromised verdict on the murder charge. He gambled and lost. He cannot now place
blame on the trial court by asserting that the trial judge should have given the instruction anyway because
the trial judge is obligated to give instructions which are undergirded with an evidentiary basis. This
assignment of error is without merit.
2. Ineffective Assistance of Counsel
¶14.
Maxwell complains that his attorney’s assistance was deficient because she failed to request a
manslaughter instruction. Moreover, Maxwell asserts that his counsel’s assistance was ineffective because
she failed to make a Miranda1 objection to Henderson’s testimony regarding Maxwell’s incriminating
statement.
¶15.
Our standard of review for a claim of ineffective assistance of counsel is a two-part test: the
defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was
deficient and (2) the deficiency deprived the defendant of a fair trial. Jackson v. State, 815 So. 2d 1196,
1200 (¶8) (Miss. 2002) (citing Hiter, 660 So. 2d at 965 (Miss.1995)). This review is highly deferential
to the attorney, with a strong presumption that the attorney's conduct fell within the wide range of
reasonable professional assistance. Id. With respect to the overall performance of the attorney, "counsel's
choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain
objections fall within the ambit of trial strategy" and cannot give rise to an ineffective assistance of counsel
claim. Id. (citing Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)).
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In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that police
are required to apprise a criminal defendant of his right to an attorney and to have the attorney present
during custodial interrogation so as to protect the defendant against self incrimination.
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¶16.
A defendant claiming ineffective assistance of counsel has the burden of proving not only that
counsel's performance was deficient, but also that he was prejudiced thereby. Jackson, 815 So. 2d at
1200 (¶9) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Additionally, the defendant must
show that there is a reasonable probability that, but for his attorney's errors, he would have received a
different result in the trial court. Id. (citing Nicolaou v. State, 612 So. 2d 1080, 1086 (Miss. 1992)).
Finally, the court, based upon the totality of the circumstances, must then determine whether counsel's
performance was both deficient and prejudicial. Id. (citing Carney v. State, 525 So. 2d 776, 780 (Miss.
1988)).
¶17.
We do not find that Maxwell’s counsel was ineffective in the assistance provided in Maxwell's
defense. Maxwell's counsel’s failure to request a jury instruction for manslaughter did not constitute
ineffective assistance. As we enunciated earlier, Maxwell himself made the determination that a
manslaughter instruction should not be requested, and that decision was purely strategic. Moreover, his
counsel’s failure to make a Miranda objection to Henderson’s testimony does not amount to a deficiency
in his counsel’s representation. Henderson did not interrogate Maxwell. It was Maxwell who asked to
speak with Henderson. After doing so, and in response to the answer Henderson gave to Maxwell's
question, Maxwell volunteered the statement that he shot into the air. There was no basis for a Miranda
challenge.
3. Motion for Directed Verdict
¶18.
The final issue Maxwell raises on appeal is whether the trial court erred in denying his motion for
directed verdict. The legal sufficiency of the State's evidence may be tested by a motion for a directed
verdict, a request for a peremptory instruction, and a motion for a JNOV; the standard of review of each
is essentially the same. Dickey v. State, 819 So. 2d 1253, 1256 (¶9) (Miss. 2002) (citing Ellis v. State,
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778 So. 2d 114, 117 (¶7) (Miss. 2000)). The evidence must be viewed in the light most favorable to the
State and this Court must accept as true all the evidence which supports the guilty verdict without weighing
the credibility of the evidence. Id. The prosecution receives the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Id. (citing McFee v. State, 511 So. 2d 130, 133-34 (Miss.
1987)). This Court will reverse only where reasonable and fair-minded jurors could only find the accused
not guilty. Id. (citing Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987)).
¶19.
Here, the evidence offered by the State is such that fair-minded jurors could find Maxwell guilty
as charged. Anthony Blue testified that he was present during the incident, that he witnessed the shooting,
and that he communicated to the police that Maxwell had killed Tonya. Michael Beasley testified that he
saw Maxwell run behind Tonya’s trailer immediately after the shooting. Kevin Butler, a visitor at Tonya's
trailer at the time she was shot, testified that the shots came from the direction where he had seen Maxwell
standing shortly before the shots were fired.
¶20.
Lance Falvey, a deputy sheriff, gave testimony about the crime scene where he discovered a bullet
hole in the trailer. He investigated the alleged escape path of the suspect where he eventually came to the
home of Barry Wade. The back door of Wade’s home was kicked in. Falvey testified that Maxwell
appeared very dirty with bits of leaves and trash on his person and that Maxwell was sweating profusely
on a cool afternoon. Barry Wade verified that the back door of his home was kicked in and that a pair of
black pants was taken from his residence.
¶21.
Bruce Jackson, an investigator, testified that he administered a gun residue test to Maxwell. David
Whitehead, the forensic scientist who reviewed the residue test given to Maxwell, testified that Maxwell
had “been in the environment of a discharged weapon.” Chief Henderson testified that upon his informing
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Maxwell that witnesses had indicated that Maxwell had shot Tonya, Maxwell’s response was “I only shot
in the air three or four times.”
¶22.
We find that the evidence of Maxwell's guilt was overwhelming. Therefore, we hold that the trial
judge properly refused to direct a verdict in Maxwell's favor. The judgement of the trial court is affirmed.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF
CONVICTION OF COUNT ONE, MURDER, AND SENTENCE OF LIFE; AND COUNT
TWO, SHOOTING INTO A DWELLING, AND SENTENCE OF TEN YEARS ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE
SENTENCES TO RUN CONCURRENTLY AND PAY $3,365 IN RESTITUTION TO THE
CRIME VICTIM'S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO LINCOLN COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
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