James Brian Buckley v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01244-COA
JAMES BRIAN BUCKLEY
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
07/11/2007
HON. MARCUS D. GORDON
NESHOBA COUNTY CIRCUIT COURT
WESLEY THOMAS EVANS
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
MARK SHELDON DUNCAN
CRIMINAL - FELONY
CONVICTED OF SALE OF COCAINE AND
SENTENCED TO TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND
TO PAY A FINE OF $5,000
AFFIRMED – 10/20/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
James Buckley was convicted by a jury in the Neshoba County Circuit Court of sale
of cocaine. Thereafter, he was sentenced by the court to twenty years in the custody of the
Mississippi Department of Corrections and was fined $5,000. Feeling aggrieved, Buckley
appeals and asserts (1) that the court erred when it refused to grant his motion for a directed
verdict, (2) that he received ineffective assistance of counsel when his attorney did not assert
an insanity defense at trial, and (3) that he received ineffective assistance of counsel when
his attorney failed to use a peremptory strike against a particular potential juror.
¶2.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶3.
On August 29, 2006, Buckley was indicted for sale of cocaine. On March 28, 2007,
he filed a notice of intention to offer a defense of insanity, and on May 22, 2007, the court
ordered a psychiatric examination. On June 25, 2007, Buckley filed a motion to allow
medical treatment in which he asserted that he “had scheduled an appointment with the
Neurology Department at University Medical Center in Jackson, Mississippi[,] on Friday,
June 8, 2007, at 9:00 o’clock, a.m. . . . [and] [t]hat [he] ha[d] been able to reschedule[] this
appointment for Friday, July 6, 2007 . . . .” The motion also contained a request for
transportation to his appointment. The court granted the motion.
¶4.
Buckley’s trial was held on July 9, 2007. During its case-in-chief, the State called
several witnesses. The first witness was Officer Neal Higgason, a former drug enforcement
officer with the Philadelphia Police Department. Officer Higgason testified that on April 6,
2006, he and his partner, Officer Josh Burt, planned a buy of crack cocaine. He further
testified that the plan consisted of using James McKinny, a confidential informant, to
purchase the drugs.
¶5.
According to Officer Higgason, he and Officer Burt met with McKinny around 1:40
p.m. on April 6, just outside the city limits of Philadelphia, Mississippi. Officer Higgason
stated that he searched McKinny’s person while Officer Burt searched McKinny’s vehicle.
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He further stated that no illegal drugs, contraband, weapons, or paraphernalia were found in
McKinny’s vehicle or on his person. Officer Higgason testified that he provided McKinny
with a concealed video camera, twenty-five dollars, an evidence bag, and a body wire.
Officer Higgason stated that the body wire allowed him and Officer Burt to hear what was
going on around McKinny as it was happening. Officer Higgason explained that McKinny
drove his own vehicle, a truck, to purchase crack cocaine.
¶6.
Officer Higgason told the jury about what he and Officer Burt heard when McKinny
arrived at his destination. Specifically, Officer Higgason testified that he heard McKinny
get out of his vehicle, the sound of walking, gravel crunching, a knock on a door, and a voice
say “come in.” He stated that he also heard McKinny tell someone that he needed twentyfive dollars’ worth and that the other person then said he would be right back. The next
sound that Officer Higgason testified to hearing was that of McKinny returning to his
vehicle. According to Officer Higgason, McKinny immediately returned and gave Officer
Higgason the evidence bag with a small white rock that appeared to be crack cocaine.
Officer Higgason stated that he sealed the bag, marked it, and dated it, and that he then
allowed McKinny to mark and date the bag. Officer Higgason further stated that he turned
the evidence bag over to Officer Jimmy Reid, the chief investigator in charge of evidence.
¶7.
The State’s next witness, McKinny, testified that on April 6, he and Officers
Higgason and Burt met to prepare for the drug buy. McKinny stated that during the meeting,
the officers searched him and gave him a video camera and sound recorder. According to
McKinny, he drove his truck to a house in Philadelphia to purchase crack cocaine. McKinny
identified the person who sold him the crack cocaine as Buckley. McKinny stated that he
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went inside Buckley’s home and that he asked for twenty-five dollars’ worth of crack
cocaine. McKinny further stated that Buckley left the room they were in and came back with
the crack cocaine. McKinny testified that, once he got the crack cocaine, he put it in the
evidence bag and that from the time he left Buckley’s house to the time he got back to the
meeting place he did nothing more to the bag. McKinny further testified that the plastic bag
presented to him during trial was the evidence bag that he gave the officers on April 6. He
also identified his handwriting on the bag. According to McKinny, when he got back to the
meeting place, he turned the evidence bag over to Officers Higgason and Burt, and they took
the video and sound equipment from him and searched him again.
¶8.
The State’s next witness, Officer Reid, testified that he received the evidence bag
from Officer Higgason on April 17. He explained that he stored the evidence bag in locked
custody until he delivered it to the Mississippi Crime Laboratory on April 18. Officer Reid
testified that after he received the evidence bag back from the crime lab, he stored it in the
evidence vault and only retrieved it again to bring it to trial.
¶9.
The State next called Brandy Goodman, a forensic scientist with the Mississippi
Crime Laboratory, whose specialty is in the field of drug identification. Goodman testified
that Officer Reid delivered the evidence bag to the crime lab. She further testified that after
testing the sample from the evidence bag, the tests revealed that the sample was “cocaine
based . . . commonly referred to as crack cocaine.”
¶10.
After Goodman testified, the State rested its case. Buckley called Officer Burt as his
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only witness.1 Officer Burt testified that on April 6, he, Officer Higgason, and McKinny met
just prior to the planned buy. Officer Burt stated that he thoroughly searched McKinny’s
truck and installed audio equipment inside of the truck.
¶11.
Buckley rested his case and moved for a directed verdict on the ground that the State
failed to meet its burden of proof. The circuit court overruled the motion. Additional facts,
as necessary, will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Sufficiency of the Evidence
¶12.
In his first issue, Buckley argues that the circuit court erred in overruling his motion
for a directed verdict. Specifically, Buckley argues that the State’s case was based solely on
McKinny’s testimony and that McKinny’s testimony was unreliable and untrustworthy.
Buckley asserts that the videotape shown during the trial was dubious and did not show a
transfer of drugs in exchange for money.2
¶13.
The standard of review for challenging the legal sufficiency of evidence in a criminal
trial is well settled. In Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005), the Mississippi
Supreme Court stated:
[I]n considering whether the evidence is sufficient to sustain a conviction in
the face of a motion for directed verdict or for judgment notwithstanding the
verdict, the critical inquiry is whether the evidence shows “beyond a
1
At this point, Buckley informed the circuit court that he had a motion for a directed
verdict but that he would offer the motion at a more convenient time for the court. The court
allowed Buckley to go forward with his case, and the motion was heard later in the
proceedings.
2
Neither party designated a copy of the videotape for the record on this appeal.
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reasonable doubt that [the] accused committed the act charged, and that he did
so under such circumstances that every element of the offense existed; and
where the evidence fails to meet this test it is insufficient to support a
conviction.” However, this inquiry does not require a court to
[“]ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.[”] Instead, the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979) (citations omitted) (emphasis in original). Should the facts and
inferences considered in a challenge to the sufficiency of the evidence “point
in favor of the defendant on any element of the offense with sufficient force
that reasonable [jurors] could not have found beyond a reasonable doubt that
the defendant was guilty,” the proper remedy is for the appellate court to
reverse and render. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985) (citing
May v. State, 460 So. 2d 778, 781 (Miss. 1984)); see also Dycus v. State, 875
So. 2d 140, 164 (Miss. 2004). However, if a review of the evidence reveals
that it is of such quality and weight that, “having in mind the beyond a
reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in
the exercise of impartial judgment might reach different conclusions on every
element of the offense,” the evidence will be deemed to have been sufficient.
Edwards, 469 So. 2d at 70; see also Gibby v. State, 744 So. 2d 244, 245 (Miss.
1999).
¶14.
We find that there is sufficient evidence to sustain Buckley’s conviction. First,
Officers Higgason and Burt testified that they searched McKinny’s person and vehicle
before the buy occurred. They also testified that the video and sound equipment that they
installed worked properly. McKinny testified that the videotape introduced into evidence
at trial showed him and Officers Higgason and Burt at the pre-buy meeting and also showed
Buckley at the location of the purchase. Officers Higgason and Burt testified that they heard,
over the sound device installed on McKinny, the exchange between Buckley and McKinny
that consummated the sell of the crack cocaine. McKinny testified that he immediately
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placed the drugs that he had purchased from Buckley in the evidence bag and that he did not
tamper with the evidence bag in any way after he placed the drugs in it. It was also
confirmed by the crime lab that the substance in the evidence bag was indeed crack cocaine.
¶15.
It is also important to note that “[i]t is within the province of the jury to accept parts
of the testimony of any witness, and the jury may give consideration to all inferences
flowing from the testimony.” Mangum v. State, 762 So. 2d 337, 342 (¶12) (Miss. 2000)
(citing Grooms v. State, 357 So. 2d 292 (Miss. 1978)). The jurors heard from both sides of
this case and returned a guilty verdict based on the testimonies they accepted as true. After
viewing the evidence in the light most favorable to the prosecution, we find that a rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Accordingly, this issue is without merit.
2. Ineffective Assistance of Counsel
¶16.
In Read v. State, 430 So. 2d 832, 841 (Miss. 1983), the Mississippi Supreme Court
set forth the procedure for an appellate court to follow when a defendant has raised the issue
of ineffective assistance of counsel on direct appeal:
The [c]ourt should review the entire record on appeal. If . . . [after] a review
of the record, . . . [the] [c]ourt can say that the defendant has been denied the
effective assistance of counsel, the [c]ourt should also adjudge and reverse and
remand for a new trial. . . . Assuming that the [c]ourt is unable to conclude
from the record on appeal that defendant’s trial counsel was constitutionally
ineffective, the [c]ourt should then proceed to decide the other issues in the
case. . . . On the other hand, if the [c]ourt . . . affirm[s], it should do so
without prejudice to the defendant’s right to raise the ineffective assistance of
counsel issue via appropriate post-conviction proceedings.
(Citations omitted). Alternatively, if the appellate court affirms, it may still “reach the merits
of the ineffectiveness issue where . . . the record affirmatively shows ineffectiveness of
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constitutional dimensions, or . . . if the parties [have] stipulate[d] that the record is adequate
and the [c]ourt determines that findings of fact by a trial judge[,] able to consider the
demeanor of witnesses, . . . are not needed.” Id.
¶17.
Buckley argues that he received ineffective assistance of counsel for two reasons.
First, Buckley argues that his trial attorney was ineffective because the attorney did not
assert an insanity defense at trial after giving notice of his intention to present such. Second,
Buckley argues that his trial attorney was ineffective because, during voir dire, he failed to
use a peremptory strike against the wife of the Neshoba County Sheriff after previously
challenging her for cause.
¶18.
In regard to Buckley’s contention that his trial attorney failed to present an insanity
defense, we note that Buckley has not presented any evidence to show that an insanity
defense was warranted. In his brief, Buckley alleged that “a few days prior to trial . . . [he]
was under such a severe psychiatric and mental disability, that he was in urgent need of
medical treatment before he would be competent to stand trial.” However, the record only
reflects that Buckley asked the circuit court to allow him to go to a neurological appointment
that he had missed and subsequently rescheduled. There is no evidence in the record to show
that Buckley was insane at the time that he sold the cocaine to McKinny.
¶19.
As for Buckley’s contention that his trial attorney erred in failing to use a peremptory
strike during voir dire against the wife of the Neshoba County Sheriff, we note that
“generally . . . an attorney’s actions during voir dire . . . [are] a matter of trial strategy, which
‘cannot be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics
are shown to be so ill chosen that it permeates the entire trial with obvious unfairness.’”
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Harrell v. State, 947 So. 2d 309, 315 (¶21) (Miss. 2007) (quoting Burns v. State, 813 So. 2d
668, 675-76 (¶22) (Miss. 2001)). There is no evidence to suggest that Buckley’s attorney’s
performance during voir dire so undermined the entire trial proceeding as to constitute an
unfair trial. Further, Buckley offers no evidence to show that his attorney’s performance
during voir dire was so inadequate that the outcome of the trial would not have been the
same.
¶20.
Nevertheless, notwithstanding, the lack of evidence in the record to support Buckley’s
allegations regarding his attorney’s alleged ineffectiveness, we note that the parties have not
stipulated that the record is adequate for us to make a determination with respect to the
ineffective assistance of counsel claim. Therefore, pursuant to Read, we affirm Buckley’s
conviction and sentence but decline to decide his claim of ineffective assistance of counsel.
If he desires to do so, he may file a motion for post-conviction relief raising the issue of
ineffective assistance of counsel.
¶21. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF
CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
AND TO PAY A FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO NESHOBA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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