Bobby Didon v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00928-COA
BOBBY DIDON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/29/2008
HON. PRENTISS GREENE HARRELL
LAWRENCE COUNTY CIRCUIT COURT
WILLIAM E. GOODWIN
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 04/07/2009
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
Following his conviction of child molestation and sentence as a habitual offender of
life imprisonment in the custody of the Mississippi Department of Corrections (MDOC),
Bobby Didon filed a motion for post-conviction relief in the Circuit Court of Lawrence
County, claiming ineffective assistance of counsel. Didon’s motion was denied. Aggrieved
by this ruling, Didon appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
Didon was indicted by a Lawrence County grand jury on December 16, 2003, for the
crime of touching, handling, and fondling a nine-year-old girl. Following that, Didon was
convicted by a jury of child molestation. Didon waived a presentence investigation and was
sentenced to life imprisonment without parole pursuant to Mississippi Code Annotated
section 99-19-83 (Rev. 2007) because of his status as a habitual offender. Didon had
previously been convicted on two counts of sexual battery, indecency with a child, and grand
larceny.
¶3.
Didon filed a notice of appeal with the Mississippi Supreme Court on April 13, 2006,
but he later filed a motion for a voluntary dismissal on August 24, 2006, when it “became
clear that a direct appeal was not supported by the trial record or the post-trial record.” The
Mississippi Supreme Court granted the motion on September 12, 2006. Didon then filed a
motion for post-conviction relief pursuant to the Mississippi Uniform Post-Conviction
Collateral Relief Act, Mississippi Code Annotated section 99-39-1 to - 29 (Rev. 2007) on
July 12, 2007. Following an evidentiary hearing, Didon’s motion for post-conviction relief
was denied on May 5, 2008. Didon now appeals that decision.
STANDARD OF REVIEW
¶4.
Ineffective assistance of counsel is a mixed question of law and fact that this Court
reviews de novo. Sayre v. Anderson, 238 F.3d 631, 634-35 (5th Cir. 2002). Unless clearly
erroneous, this Court credits “the trial court’s express or implied findings of discrete, historic
facts.” Id. at 635.
¶5.
A petitioner who alleges ineffective assistance of counsel must show that his counsel’s
performance was deficient and that this deficient performance resulted in actual prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “Stated somewhat differently, the
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defendant must prove that ‘the lawyer’s errors were of such a serious magnitude as to deprive
the defendant of a fair trial because of a reasonable probability that, but for counselor's
unprofessional errors, the results would have been different.’” Cole v. State, 666 So. 2d 767,
775 (Miss. 1995) (quoting Martin v. State, 609 So. 2d 435, 438 (Miss. 1992)). Furthermore,
judicial scrutiny of counsel's performance must be "highly deferential," and the court must
make every effort "to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's alleged conduct, and to evaluate the conduct from counsel's
perspective at the time." Strickland, 466 U.S. There is a “strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance . . . .” Id.
¶6.
Didon’s motion claims that his trial counsel, Dwayne Deer, provided him ineffective
assistance of counsel. His primary assertions to support this accusation are that Deer failed
to interview witnesses, failed to view a video that was taken at the Children’s Advocacy
Center during an interview with the child victim, and failed to visit the home where the
events occurred. In response, the State asserts that Didon’s appeal is barred because the trial
court lacked jurisdiction to hear Didon’s motion because Didon did not request leave by
Mississippi Supreme Court prior to his filing the post-conviction relief motion in the circuit
court. Additionally, the State claims that Didon is procedurally barred because he failed to
place an adequate record before this Court.
Because jurisdiction is a fundamental
prerequisite in any proceeding, this Court will address that issue first.
ANALYSIS
I.
¶7.
PROCEDURAL BAR
Relying on Lyons v. State, 881 So. 2d 373 (Miss. Ct. App. 2004), the State asserts that
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Didon’s appeal should be dismissed because Didon was not granted leave by the Mississippi
Supreme Court to file his motion for post-conviction relief in the circuit court. However,
Lyons is distinguishable from the case at hand. In Lyons, the appellant filed an appeal
following his trial, but he withdrew the appeal as part of a plea agreement wherein two
counts of sale of a controlled substance were dropped. Id. at 375 (¶3). About a year later,
Lyons filed a motion for post-conviction relief, but the trial judge ruled that Lyons could not
proceed in the trial court because “authority to do so had not been granted by the supreme
court pursuant to Mississippi Code Annotated [s]ection 99-39-7.” Id. at 375 (¶4). The
supreme court affirmed stating, “Lyons’[s] motion for post-conviction relief is procedurally
barred [because] [t]he dismissal of his direct appeal from the supreme court was a final
judgment.” Id. at 376 (¶9). Regarding Lyons’s direct appeal, the supreme court issued a
mandate from the direct appeal stating that there had been proceedings in the supreme court
and the court had issued a “final judgment.” Id. Because the facts in Lyons are somewhat
different from the case at hand, this Court finds that Martin v. State, 556 So. 2d 357 (Miss.
1990) provides a more thorough explanation of the jurisdictional directive of Mississippi
Code Annotated section 99-39-7 and is applicable to the case at hand.
¶8.
Stemming from the revocation of his probation, the defendant in Martin filed a direct
appeal to the Mississippi Supreme Court. Martin, 556 So. 2d at 357. The State then filed
a motion to dismiss Martin’s appeal arguing that an order revoking probation was not directly
appealable. Id. The court granted the motion without prejudice so Martin could institute
post-conviction relief action. Id. Following the dismissal of the direct appeal, Martin
initiated post-conviction relief proceedings in the supreme court, but the court determined
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that the post-conviction proceedings should be dismissed because Martin had filed his
petition in the wrong court. Id. The supreme court stated, “[w]hen we dismissed Martin’s
direct appeal . . . without prejudice to institute post-conviction proceedings . . . we did not
direct in which court said proceedings should be initiated. We assumed that the jurisdictional
directive of section 99-39-7 would be followed, and furthermore, that it would be clear.” Id.
at 358. Recognizing that the jurisdictional directive of section 99-39-7 must have needed
clarification, the court explained as follows:
Section 99-39-7 of the Post-Conviction Relief Act sets forth the circumstances
in which a motion for relief under the Act must be filed originally in the trial
court and in what circumstances the motion must first be filed in the Supreme
Court of Mississippi. The only time that the motion must first be filed in this
Court is when “the prisoner's conviction and sentence have been appealed to
the [S]upreme [C]ourt of Mississippi and there affirmed or the appeal
dismissed. Where the conviction and sentence have been affirmed on appeal
or the appeal has been dismissed, the motion under this chapter shall not be
filed in the trial court until the motion shall have been presented to a quorum
of the justices of the [S]upreme [C]ourt of Mississippi,” . . . .
....
[O]ne could argue that by dismissing Martin’s direct appeal, . . . this Court
thereby became the last court to exercise jurisdiction in this cause and
should, therefore, be the court of first resort for Martin’s post-conviction
petition.
However, implicit in the scheme of the Post-Conviction Relief Act is the
requirement that in order for this Court to acquire exclusive, original
jurisdiction over a petition filed thereunder, this Court must have previously
made some final determination going to the merits of the underlying conviction
and sentence. It is not enough to confer exclusive jurisdiction on this Court
under [section] 99-39-7 that we dismissed an appeal without prejudice for lack
of jurisdiction, and incident to attempted post-conviction proceedings, that we
granted a temporary stay of execution.
....
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The actions taken by this Court in this cause have been merely procedural in
nature, and have in no way touched on the merits of Martin's conviction and
sentence.
Id. at 358-59 (emphasis added). Didon’s situation is similar.
¶9.
After filing his notice of appeal, Didon determined that a better course of action was
to seek redress via a post-conviction relief motion. Didon then filed a motion for voluntary
dismissal with the Mississippi Supreme Court. The dismissal was granted on September 12,
2006, pursuant to Mississippi Rule of Appellate Procedure 42(b). There is nothing in the
record indicating that the supreme court made any decision based upon the merits of Didon’s
case, nor was the case dismissed by the court for any procedural defects such as failure to file
within the statute of limitations. The dismissal notice merely states that “[p]ursuant to
[Mississippi Rule of Appellate Procedure]
42(b),1 appellant’s Motion for Voluntary
Dismissal of Appeal is granted. Costs are taxed to the appellant.” 2 Also, there is nothing in
the record to indicate that Didon withdrew his appeal on the basis of a plea agreement, or that
it was dismissed by the supreme court for filing it in the wrong court. The supreme court’s
actions in this matter were merely procedural. Therefore, just as the trial court in Martin had
exclusive original jurisdiction to hear the post-conviction relief motion, so did the circuit
court in this case when it held an evidentiary hearing and ruled on Didon’s post-conviction
relief motion. See Martin, 556 So. 2d at 359-60. Therefore, the State’s claim that the circuit
1
Mississippi Rule of Appellate Procedure 42(b) states, “[a]fter the appeal has been
docketed with the clerk of the Supreme Court, an appeal may be dismissed on motion of the
appellant upon such terms as may be agreed upon by the parties or fixed by the Supreme
Court . . . .”
2
The case number of Didon’s direct appeal to the supreme court is 2006-KA-00629-
SCT.
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court lacked jurisdiction fails.
II.
¶10.
INEFFECTIVE ASSISTANCE OF COUNSEL
Didon asserts that Deer failed to interview witnesses in preparation for trial. In
addition, he takes issue with the fact that Deer did not elicit testimony from certain family
members during the trial. In an attempt to support this assertion, Didon submits deposition
transcripts of three of his family members that were taken in preparation for Didon’s motion
for post-conviction relief. The family members deposed were Didon’s sister, Kay Colvin
(Kay), his brother-in-law, William Colvin (William), and his wife, Nora Didon (Nora). We
will address each of them in turn.
A.
¶11.
Kay Colvin’s Testimony
Didon contends that the jury would have been swayed by Kay’s testimony relating to
the victim’s interview with the Child Advocacy Center in McComb, Mississippi. Kay stated
that she believed the victim was coaxed by her mother prior to the interview at the Child
Advocacy Center about what she should say during that interview.
In her post-trial
deposition, Kay stated that although she voiced these concerns to Deer, she did not believe
he followed up on her perceptions related to the events of that day. Didon asserts that Kay
should have been allowed to present her opinions to the jury. However, it is impossible for
this Court to scrutinize Deer’s performance relating to that interview because Didon has not
furnished this Court with a transcript of the trial below to determine what testimony was
given or what questions or objections were, or should have been, raised related to the child’s
interview at the Child Advocacy Center.
¶12.
Furthermore, when deciding whether or not to place Kay on the stand, Deer had the
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responsibility of determining what the best trial strategy would be. Supported by Kay’s own
statements, Deer had to weigh any possible benefit of Kay’s testimony against the risk.
Kay’s post-trial deposition reveals that she had accompanied the victim’s mother to press
charges against Didon, and even more disparaging, she later offered the victim’s mother
money for the child as an incentive to drop the charges against Didon. Kay avers that Didon
had told her to do this based upon Deer’s advice, but there is no way to discern the validity
of this statement from the record.
¶13.
Additionally, Kay states that Deer failed to communicate with her, Didon, and other
potential witnesses. However, Kay’s deposition reveals information somewhat contradictory
to this allegation. Kay testified that she accompanied Didon to Deer’s office on “numerous
occasions,” and she sometimes attended the meetings “back [in] the office.” Although Didon
may feel as if these encounters were too few, it is not for this Court to determine how many
interviews would or would not have been sufficient based upon hindsight and one-sided
accounts of what preparation took place. While represented by Deer, two years elapsed
between the time of Didon’s indictment and his trial. If Didon sensed that neither he nor
other witnesses were being interviewed or prepared adequately, he had the opportunity to
seek other counsel.
¶14.
Because deciding whether to call witnesses is a strategic trial decision, the Fifth
Circuit Court of Appeals has held that “complaints of uncalled witness[es] are ‘disfavored’
as a source of Strickland . . . review.” United States v. Harris, 408 F.3d 186, 190 (5th Cir.
2005) (citations omitted). We agree. Furthermore, “counsel’s [choice of whether or not]
to file certain motions, call certain witnesses, ask certain questions, and make certain
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objections fall[s] within the ambit of trial strategy.” Cole, 666 So. 2d at 777. In light of case
law and the facts stated above, this Court finds that Deer’s decision not to call Kay was not
objectively unreasonable, and certainly, it was within the ambit of trial strategy.
B.
¶15.
William Colvin’s Assertions
Just as with Kay, any possible testimony by William, Didon’s brother-in-law, may
have been suspect. William testified in his post-trial deposition that everything he knew
about the Didon home and the events surrounding the incident came from Didon, not from
any first-hand knowledge or experience. Deer may not have called William because
William’s testimony likely would not have been admissible as it was hearsay. William also
declares that after Didon’s trial, Deer confessed that his advocacy was deficient and that
Didon could file a motion asserting ineffective assistance of counsel. William’s allegation
alone is insufficient to support a finding that Deer actually confessed that he had
inadequately represented Didon. There are nearly thirty pages of testimony from William
about what he heard from Didon or Kay concerning the events, but there is nothing in the
record that indicates that Deer has been questioned or given an opportunity to defend or
explain his performance. Nor is there a transcript from the trial or the evidentiary hearing
included in the record that would allow this Court to analyze the prior proceedings and
Deer’s performance. Furthermore, even Didon recognized that the transcript from the trial
would not support a successful appeal.
¶16.
Just as there would have been legitimate doubt with any testimony Kay that could
have given, it is unlikely that the jury would have been persuaded to find differently if
William had testified. As stated, William’s post-trial deposition reveals that he had no
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personal or first-hand knowledge of the events surrounding the incident. The circuit judge
correctly stated in his order denying Didon’s motion for post-conviction relief, “[such]
statements . . . [would have been] offered by persons related either by blood or marriage . .
. [and] [h]ad the jury been presented this information, they would have been aware of
possible bias and inconsistencies found within these statements.”
¶17.
Based upon the post-trial depositions, Didon’s assertion of ineffective assistance of
counsel fails to pass the Strickland two-prong test. Under Strickland, Didon has the burden
of proof to show that his attorney’s performance was deficient, and he must show that such
deficiency was prejudicial to the defense. See Moody v. State, 644 So. 2d 451, 456 (Miss.
1994). Also, as the supreme court has stated, “[t]here is . . . a presumption that counsel’s
decisions are strategic in nature, rather than negligent.” Swington v. State, 742 So. 2d 1106,
1114 (¶23) (Miss. 1999). It is not evident that, but for Deer’s decision to abstain from using
Kay or her husband as witnesses, the outcome of the trial would have been different or that
Deer’s decisions stemmed from anything other than trial strategy.
C.
¶18.
Nora Didon’s Testimony
This leaves the issue of what Nora “could have” testified about at trial.
Uncontradicted by Didon, the State’s brief to this Court states that Nora testified during the
trial as follows: “that the victim and the defendant were in the bedroom together, that she
was cooking in the kitchen most of the time while the victim was there, and that the victim
visited her home on numerous occasions and she could not remember each visit.” 3 Didon
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As stated, the record does not include a transcript of the trial or the evidentiary
hearing from which to test the information set forth in the parties’ briefs. As this Court has
clearly stated, “[a]s with any appeal, it is solely the appellant’s duty to ensure that the record
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now claims that his wife was shy and would not have spoken forthrightly on her own during
the trial. To reiterate, Didon has not provided this Court with a transcript of the trial in which
to analyze whether Nora was questioned appropriately at trial or not, or whether she appeared
hesitant in her answers. Furthermore, Didon has not shown this Court that Nora was denied
the opportunity to testify accurately about what she knew about that day, or that she was
inadequately questioned during the trial. Moreover, in his order denying Didon’s motion for
post-conviction relief, the circuit judge stated, “[he] knew [the trial judge] to be a learned
judge and [was] confident that had this attorney displayed such inability to rise to the level
of undue prejudice against the Defendant, the presiding Judge would have acted
accordingly.” It stands to reason that such a learned judge would have noticed if Nora was
not responding properly to questions and whether she acted appropriately.
¶19.
Nora now wants to change her testimony. In her post-trial deposition, she stated that
because of the layout of the home, she would have been able to see into the bedroom every
time she went anywhere in the house. She testified in the deposition that she was “up and
down all the time,” and “[e]ven if [she] went into the kitchen, [she] was only there a minute
. . . .” As stated, the record does not support the assertion that Nora was denied the
is sufficiently populated to support the error claimed. [And] [i]f the record is found lacking
in this regard, the lower court's order must stand.” Ross v. State, 936 So. 2d 983, 985 (¶4)
(Miss. Ct. App. 2006) (internal citations omitted). Accordingly, if there was an inaccurate
representation of Nora’s trial testimony, it was incumbent upon Didon to refute the appellee’s
account of Nora’s trial testimony in a reply brief or, better yet, by providing a transcript of
the actual trial. However, we remind the appellee that it too has a duty to provide necessary
portions of the record if it deems them necessary. Mississippi Rule of Appellate Procedure
10(b) provides that “the appellee shall, within 14 days after the service of the designation and
the statement of the appellant, file with the clerk and serve on the appellant and the court
reporter a designation of additional parts to be included.”
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opportunity to give a precise account at trial. If Nora was given the opportunity to testify
again she would vouch for her husband by stating that she was present and that she knew that
no molestation had occurred. Although this Court cannot divine which of Nora’s testimonies
are accurate, Didon is not entitled to another bite at the apple because his witness failed to
give complete and truthful testimony at trial.
¶20.
Didon also takes issue with the fact that Deer did not visit the home where the incident
occurred, nor did he ask Nora to create a drawing of the home, which could have been shown
to the jury. Given the nature and content of Nora’s testimony, it is not persuasive that any
such drawing would have affected the outcome of the trial.
¶21.
To prevail in his ineffectiveness argument, “[a] defendant . . must . . . state with
particularity what the investigation would have revealed and specify how it would have
altered the outcome of trial . . . [or] how such additional investigation would have
significantly aided his cause at trial.” Cole, 666 So. 2d at 776 (internal citations and
quotations omitted). Although Didon has “particularly” stated that he believes that his wife
should have been questioned differently and his relatives allowed to testify at trial, this Court
is not persuaded, based upon the evidence presented in the post-trial depositions, that Didon
was prejudiced by Deer’s decisions.
¶22.
“Hindsight . . . is always 20/20. It is easy to criticize counsel with the aid of
‘backfocal’ lenses.” Id. But, mere hindsight judgment does not provide a window of
opportunity to retry a case. Id. When ruling on Didon’s post-conviction relief motion, the
circuit judge stated that “[w]hile Deer’s performance might not have been as good as it could
have been, it [is] very suspect that it actually reache[d] the level of incompetency. Even
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though deficient, . . . Deer’s actions did not reach a level of prejudice to be deemed outcome
determinative.” As this Court has stated, a trial court’s denial of a motion for post-conviction
relief should not be reversed “absent a finding that the trial court’s [decision] was clearly
erroneous.” Holland v. State, 956 So. 2d 322, 325 (¶6) (Miss. Ct. App. 2007) (citation
omitted). Based upon the record and applicable case law, this Court finds that Didon has
failed to meet his burden under Strickland to show that Deer’s performance was deficient and
that deficiency prejudiced his defense. Accordingly, this Court affirms the judgment of the
circuit court.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. MAXWELL,
J., NOT PARTICIPATING.
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