William James Logan, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KP-01790-COA
WILLIAM JAMES LOGAN, JR.
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
8/11/2006
HON. ROBERT G. EVANS
COVINGTON COUNTY CIRCUIT COURT
WILLIAM JAMES LOGAN, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN TERRELL MARTIN
EDDIE H. BOWEN
CRIMINAL - FELONY
CONVICTED OF TWO COUNTS OF
BURGLARY AND SENTENCED TO SERVE
CONCURRENT TERMS OF TWENTY-FIVE
YEARS ON EACH COUNT IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AS A HABITUAL OFFENDER
AFFIRMED – 04/01/2008
BEFORE MYERS, P.J., IRVING AND ISHEE, JJ.
IRVING, J., FOR THE COURT:
¶1.
William James Logan Jr. was convicted of two counts of burglary by a Covington County
jury and was sentenced, as a habitual offender, to serve concurrent terms of twenty-five years on
each count in the custody of the Mississippi Department of Corrections. Aggrieved, Logan appeals
and assigns the following issues for our review: (1) that the trial court erred in allowing the State
to amend the indictment and that the indictment was impermissibly vague, (2) that the trial court
erred in allowing certain evidence to be admitted at trial, (3) that he was denied the right to an
attorney in violation of the Sixth Amendment and Article 3, Section 26 of the Mississippi
Constitution, and (4) that he received ineffective assistance of counsel.1
¶2.
We find no merit to Logan’s assertions of error; therefore, we affirm his conviction and
sentence.
FACTS
¶3.
On the morning of January 5, 2004, Ruby and Earl Benson, after a trip to Mount Olive,
Mississippi, returned to their home on Highway 35 in Collins, Mississippi.2 The couple observed
a vehicle parked in their driveway and witnessed Logan exit their home carrying a money box which
belonged to Earl. Logan then got into his vehicle and left. Ruby went inside the house while Earl
pursued Logan. In addition to the money box, a blue jewelry box, a necklace, Sacajawea golden
dollar coins, and $2,300 in cash were missing from their home. The Covington County Sheriff’s
Department was notified.
¶4.
After the Benson burglary was reported, Carol Sue Wise came home to find her front door
open and the door’s glass casing on the floor. Carol cautiously entered her house and immediately
noticed that two of her piggy banks were missing. She then called 911 and reported that her home
had been burglarized. Upon closer examination, Carol noticed that her jewelry box was also
missing.
¶5.
Deputies Wayne Harvey and Chris Newman went to investigate the Benson burglary. While
en route to the Bensons’ residence, dispatch alerted the deputies that a second home (Carol’s
residence) had been burglarized. Shortly after getting the call from dispatch, the deputies stopped
a vehicle matching the description of the car which had been driven by the burglar fleeing the
1
In actuality, Logan asserts eight issues on appeal; however, for the sake of clarity, we have
combined similar issues.
2
Earl was deceased at the time of trial.
2
Bensons’ residence. The driver, Logan, exited the vehicle; however, after he learned why he had
been stopped, he got back into the vehicle and fled. The deputies gave chase, and Logan pulled over
shortly thereafter.
¶6.
Deputy Newman approached the vehicle and saw, in plain view, two piggy banks and gold
coins. An inventory search of the vehicle was conducted, and deputies also recovered other items,
including approximately $2,300 in cash.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Indictment
¶7.
“The question of whether an indictment is fatally defective is an issue of law and deserves
a relatively broad standard of review by this Court.” Jones v. State, 912 So. 2d 973, 975 (¶8) (Miss.
2005) (citing Peterson v. State, 671 So. 2d 647, 652 (Miss. 1996)). Mississippi appellate courts
employ a de novo standard of review for questions of law. Id. (citing UHS-Qualicare, Inc. v. Gulf
Coast Cmty. Hosp., Inc., 525 So. 2d 746, 754 (Miss. 1987)).
¶8.
Logan makes two arguments regarding his indictment. First, Logan contends that the trial
court erred in allowing the State to amend the indictment.3 The final amendment was made on July
13, 2006, eleven days before Logan went to trial. Logan argues that he was not given an
“opportunity to agree or disagree [with] a critical decision [, the amendment of the indictment].”
The indictment, as amended, reads in pertinent part:
THE GRAND JURORS for the State of Mississippi, taken from the body of good
and lawful men and women of Covington County, Mississippi, elected, impaneled,
sworn and charged to inquire in and for said County and State aforesaid, in the name
and by the authority of the State of Mississippi, upon their oath presents that:
COUNT I: WILLIAM JAMES LOGAN, JR. in said County and State on or about
the 5th day January, A.D., 2004, did then and there willfully, unlawfully, feloniously
and burglariously break and enter the dwelling of Ruby Benson, said Williams [sic]
3
The indictment was amended twice before providing the correct date of the burglaries.
3
James Logan, Jr., having the intent to steal therein, in violation of Section 97-17-23
of the Miss. Code of 1972, annotated,
contrary to the form of the statute in such cases made and provided and against the
peace and dignity of the State of Mississippi.
And the Grand Jurors do further present on their oaths as aforesaid that the said
WILLIAM JAMES LOGAN, JR., as a part of a common scheme or plan,
COUNT II: WILLIAM JAMES LOGAN, JR., in said County and State on or about
the 5th day of January, A.D., 2004, did then and there willfully, unlawfully,
feloniously and burglariously break and enter the dwelling of Sue Wise, said
Williams James Logan, Jr., having the intent to steal therein, in violation of Section
97-17-23 of the Miss. Code of 1972, annotated,
contrary to the form of the statute in such cases made and provided and against the
peace and dignity of the State of Mississippi.
¶9.
It is well established that “indictments may be amended as to form but not as to the substance
of the offense charged.” URCCC 7.09. Amendments as to form do not prejudice the defense.
Jones, 912 So. 2d at 976 (¶9). “The test for whether an amendment to the indictment will prejudice
the defense is whether the defense as it originally stood would be equally available after the
amendment is made.” Id. Moreover, “[a]mendment shall be allowed only if the defendant is
afforded a fair opportunity to present a defense and is not unfairly surprised.” URCCC 7.09.
¶10.
Logan contends that his defense was prejudiced because, prior to the amendments, he could
have shown that he was incarcerated on June 5, 2004, the date originally provided in the indictment
as the date the homes were burglarized. According to Logan, his defense as it stood prior to the
amendments was no longer available after the amendments were made. We recognize that the
amendments precluded Logan from making that particular argument; however, we have scoured the
record and cannot find where Logan ever attempted to assert an alibi defense.4 Nevertheless, an alibi
4
At trial Logan offered no defense, as was his right, choosing instead to rest on the
presumption of innocence that clothes all criminal defendants. After the close of the State’s case,
Logan did not argue that the case should be dismissed because the proof was at variance with the
indictment, nor did he argue that he had been prejudiced because he thought he was charged with
4
defense, though not asserted, remained available even after the last amendment.5 In Blaine v. State,
604 So. 2d 258, 261 (Miss. 1992), the Mississippi Supreme Court held that: “Unless time is an
essential element or factor in the crime, . . . an amendment to change the date on which the offense
occurred is one of form only.” Furthermore, Rule 7.06 (5) provides that “[f]ailure to state the
correct date shall not render the indictment insufficient.” (Emphasis added). Thus, we are not
persuaded by Logan’s argument that the changes constituted “critical decisions.” Logan suffered
no prejudice as a result of the amendments because they were merely amendments as to form.
¶11.
Logan also argues that his initial court-appointed counsel did not inform him that the
indictment had been amended twice and that this lack of knowledge deprived him of due process
because he did not have an opportunity to oppose the amendments. We find nothing in the record
that disputes Logan’s accusation. Therefore, we accept that Logan was deprived of an opportunity
to oppose the amendments. This fact notwithstanding, we find no prejudice to Logan because, even
if he had been given prior knowledge of the State’s intention to seek amendments to the indictment,
there was nothing he could have done to prevent the court from granting the amendments. As we
have already noted, these amendments were amendments of form and not amendments of substance.
There is no merit to this issue.
¶12.
Second, Logan argues that the indictment is impermissibly vague because it fails to provide
the addresses of the houses where the burglaries occurred and because it fails to specify the property
that was stolen. Logan contends that the failure to provide the addresses of the residences “makes
activities allegedly occurring on one date when in fact the State had offered proof of another date.
5
It is of particular importance that Logan did not argue at trial or in any posttrial motions
that he was prejudiced because he was precluded from proving his whereabouts on the date
contained in the second amended indictment. What Logan’s argument boils down to is this: the
State should have been precluded from amending the indictment to show the correct date of the
burglaries because doing so prevented him from proving that he could not have committed the
burglaries on the erroneous date as initially charged.
5
it impossible to know what he is expected to defend.” The Mississippi Supreme Court has held that
an “indictment [is] legally sufficient if it gives the accused fair notice of [the] offense with which
he is charged.” McCollum v. State, 785 So. 2d 279, 283 (¶12) (Miss. 2001) (quoting Holloman v.
State, 656 So. 2d 1134, 1139 (Miss. 1995)). Our review of the indictment convinces us that Logan
was sufficiently informed that he was being indicted for burglarizing the homes of Ruby Benson and
Carol Wise, even though the addresses of their homes were not provided. Rule 7.06 of the Uniform
Rules of Circuit and County Court Practice mandates that “[t]he indictment . . . be a plain, concise
and definite written statement of the essential facts constituting the offense charged and shall fully
notify the defendant of the nature and cause of the accusation.” We conclude that the indictment
sufficiently complied with Rule 7.06, as it provided the essential facts constituting the two counts
of burglary which Logan was charged with committing. This issue lacks merit.
2. Admission of Evidence
¶13.
The trial judge, over objection by the defense, allowed into evidence several items that were
seized during the investigation. This Court uses an abuse of discretion standard when determining
whether the trial judge erred in admitting or excluding evidence. Clark v. State, 891 So. 2d 136, 139
(¶11) (Miss. 2004) (citing Herring v. Poirrier, 797 So. 2d 797, 804 (¶18) (Miss. 2000)). “The trial
judge is empowered with the discretion to consider and to decide what evidence is admissible, and
unless this judicial discretion is so abused as to be prejudicial to the accused, then, the ruling of the
lower court must be affirmed.” Id.
¶14.
Logan contends that the deputies illegally searched his vehicle while it was impounded
because they did so without securing a valid search warrant. As previously stated, the piggy banks
and gold coins were in plain view when Deputy Newman approached Logan’s vehicle, and the
$2,300 was seized following an inventory search which was conducted pursuant to routine police
procedure. In Black v. State, 418 So. 2d 819, 821 (Miss. 1982), the Mississippi Supreme Court held
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that “it is permissible for officers to conduct an inventory search of [a] vehicle when the
circumstances require it to be impounded . . . .” We find that the circumstances required that
Logan’s vehicle be impounded, as he was alone in the vehicle when it was stopped. Thus, we find
no error in the trial court’s decision to admit the piggy banks and gold coins. Likewise, we find no
error in the trial court’s decision to allow testimony regarding the $2,300. This issue lacks merit.
¶15.
Logan also takes issue with when the inventory search occurred, arguing that “the time of
the inventory [search] was a hotly disputed topic, because it shows that there was no safe keeping
of [the] property . . . .” Deputy Newman testified that the vehicle was searched on the day that
Logan was arrested; however, the inventory report form indicates that the search occurred the day
after Logan was arrested. Deputy Newman clarified that the photographs were taken on January 5,
2004, but he did not complete the inventory report form until the following day. We note that the
report also indicates that the vehicle was impounded from January 5, 2004, to January 6, 2004.
Therefore, we find no merit to Logan’s argument.
¶16.
Logan also asserts that the trial court erred in allowing into evidence the blue jewelry box
because the admission of “it caused the jury to believe it was recovered from [him].” We note that
the jewelry box, like the items mentioned above, was recovered during the inventory search and was
listed on the inventory report form. Thus, there is no merit to this issue.
3. Right to Counsel
¶17.
In this assignment of error, Logan asserts that he did not have an attorney acting on his
behalf when he waived arraignment and entered a not guilty plea. Our review of the record reveals
otherwise. The waiver bears his court-appointed attorney’s signature, his attorney of record at the
time; thus, it is reasonable to conclude that Logan was represented by an attorney when he signed
the waiver. Furthermore, aside from Logan’s unsworn assertion in his brief, he has failed to offer
any evidence to support his allegation. There is no merit to this issue.
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4. Identification
¶18.
Logan contends that the trial court erred in allowing the State to elicit eyewitness testimony
from Ruby because no pretrial identification procedure was conducted. Logan also asserts that the
State failed to ask Ruby if he was the person that she and her husband had seen leaving their home
on January 5, 2004. We note at the outset that the State is allowed to proceed as it deems
appropriate. Additionally, we point out that the record belies Logan’s assertion:
Q.
A.
Yes, sir.
Q.
And where did you see him?
A.
He was coming out of my house.
Q.
And what was he doing when you saw him?
A.
He had a money box in his hands coming out.
Q.
He had a money box?
A.
Yes, sir.
Q.
Whose money box was it?
A.
It was Earl’s.
Q.
Your husband’s?
A.
Yes, sir.
Q.
What did the defendant do when you saw him coming out of the house?
A.
¶19.
I call your attention to approximately 11:15 o’clock [sic] a.m. on January 5,
2004, and ask you if you had an occasion to see the defendant, William
James Logan?
He come [sic] on out and got in his car and backed out.
Furthermore, on cross-examination, Ruby remained steadfast that Logan was the person that
she had seen leaving her home on January 5, 2004:
8
Q.
All right. Now, had you ever seen the man exiting your residence before that
day?
A.
Seen who?
Q.
Had you ever seen the man that you saw get into the car, had you ever seen
him before?
A.
No, sir.
Q.
All right. Are you positive that it’s the man at the end here or did the
sheriff’s office tell you that’s who it is?
A.
No, I’m positive.
In addition to Ruby’s positive identification of Logan as the perpetrator, we note that deputies from
the Covington County Sheriff’s Department apprehended Logan and saw items that had been
reported stolen from the Benson residence in plain view in his vehicle. We find no merit to this
issue.
5. Ineffective Assistance of Counsel
¶20.
Logan claims that he received ineffective assistance of counsel from his court-appointed
attorney and from his trial attorney. We will address his ineffective assistance claim as it relates to
his court-appointed attorney first. In order to establish an ineffective assistance of counsel claim,
Logan must satisfy the two-part test established by the United States Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687 (1984). When a defendant asserts that his counsel was ineffective,
he has the burden of proving (1) that his counsel’s performance was deficient and (2) that the
outcome of the trial would have been different but for the deficiency of his counsel’s performance.
Id.
¶21.
Logan’s ineffective assistance of counsel claim, as it relates to his court-appointed attorney,
is based on his contention that he was not informed that the indictment had been amended. The
agreed orders authorizing both amendments were signed by Logan’s court-appointed attorney and
9
the assistant district attorney. Our review of the record reveals that the problem was created when
Logan’s court-appointed attorney filed a motion to withdraw in July 2005 and did not follow-up on
the motion. Meanwhile, Logan retained an attorney in February 2006. Then, in July 2006, Logan’s
court-appointed attorney filed a second motion to withdraw, which the court granted shortly
thereafter. Logan’s retained attorney argued in a posttrial motion that Logan’s court-appointed
attorney was not authorized to agree to the final amendment because at that time he was no longer
Logan’s attorney. The problem was compounded by Logan’s retained attorney’s failure to enter a
formal notice of appearance in the record, despite having made appearances on Logan’s behalf.
¶22.
Notwithstanding the confusion, we fail to see how Logan suffered any prejudice. While he
argues that he did not become aware of the amendments until during the trial, he does not argue that
his defense was adversely affected beyond denying him the opportunity to show that he was in jail
on the date contained in the original indictment. As previously noted, Logan seems to be arguing,
without specifically saying so, that the State should have been required to stick with the erroneous
date contained in the original indictment so that he could have shown that he was in jail on that
particular date and could not have committed the crime on that date. This is contorted logic. The
changing of a date in an indictment to correctly reflect the date of the crime is not in and of itself
a denial of due process. A denial of due process occurs when the defendant has not been given an
adequate opportunity to defend. Here, as we have previously noted, Logan does not argue that had
he known before trial that the correct date was January 5, 2004, instead of June 5, 2004, he still
would have been able to present an alibi defense but that he was deprived of such defense due to
lack of sufficient notice. Logan’s only argument is that the amendment was made without his
knowledge. We point out that the State was free to amend the indictment as long as it complied with
Rule 7.09, and we have already concluded that it did. There is no merit to this issue.
10
¶23.
As for Logan’s ineffective assistance of counsel claim against his retained trial attorney, we
also find that this issue lacks merit. Logan contends that his trial attorney was ineffective for leading
him “to believe that he was being represented and he technically was not.” We have already
discussed the events that led to the confusion as to which attorney represented Logan at which point
in this process; therefore, we see no reason to rehash that discussion.
¶24.
Logan also argues that he suffered reversible error because his trial attorney said during voir
dire that he was a habitual offender:
[ATTORNEY FOR DEFENDANT]: Now, the State of Mississippi is very ably
represented by . . . the District Attorney. I have been retained by Mr. Logan to
represent him. All that either of us can ask of you ladies and gentlemen is that you
listen to the evidence, look at the exhibits and make up your own mind using your
own common sense. And if you have a question, discuss it with your fellow jurors.
And if you don’t feel the defendant has been proven guilty beyond a reasonable
doubt, it’s real simple, you find him not guilty. He’s not on charge for what he did
six or seven years ago; he’s on charge for what happened, as they say, on January 5,
2004. All I can ask you to do -- make them do it. And I thank you.
Logan’s trial attorney did not err in informing the jury of Logan’s habitual offender status, as the
information was included in his indictment. Logan further argues that his counsel’s misconduct was
compounded when a prospective juror stated during voir dire that his home had also been broken
into on the date of the burglaries for which Logan had been charged and that no one had been
apprehended for the crime. We do not fully understand this argument. Perhaps Logan believes that
his counsel’s statement regarding Logan’s prior convictions prompted the juror’s comments and
that he was prejudiced by those comments since his counsel did not request, and the court did not
give, a sua sponte instruction to the jury to disregard the comment. Logan has not provided any
authority to support his contention that the court was required to give a sua sponte instruction.
Therefore, we decline to find error, but even if we were to hold that error occurred, we would find
that it was harmless error, as the evidence of Logan’s guilt is overwhelming.
11
¶25.
Finally, Logan takes issue with the following statement made by his attorney during closing
argument:
[ATTORNEY FOR DEFENDANT]: Now, this presumption of innocence, as the
instructions tells [sic] you, stays with him all the way through the trial until and
unless you become convinced beyond a reasonable doubt that he’s guilty. As long
as you are sitting there saying well, I just don’t know. This looks like he’s guilty.
This looks like he’s not guilty. Then you’ve got to give the benefit of that doubt to
the defendant and say not guilty. I can’t get into each of your heads. I know I listen
[sic] to some things today and said looks like he did it. Well, I don’t know. I guess
all us lawyers do that, tit for tat.
According to Logan, his attorney was, “in effect, bolstering the prosecution’s case.” We disagree
and find no merit to this issue.
¶26.
THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY OF
CONVICTION OF TWO COUNTS OF BURGLARY AND SENTENCE AS A HABITUAL
OFFENDER TO CONCURRENT TERMS OF TWENTY-FIVE YEARS ON EACH COUNT
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COVINGTON
COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
12
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