Jeffery Marcel Robinson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01154-COA
JEFFERY MARCEL ROBINSON
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
05/29/2009
HON. JAMES MCCLURE III
PANOLA COUNTY CIRCUIT COURT
BENJAMIN ALLEN SUBER
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF
COCAINE AND SENTENCED AS A
HABITUAL AND SUBSEQUENT
OFFENDER TO TWELVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PROBATION
OR PAROLE
AFFIRMED: 03/22/2011
GRIFFIS, P.J., MYERS AND CARLTON, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1.
Jeffery Marcel Robinson appeals his conviction on the basis that he received
ineffective assistance of counsel. We find no error and affirm.
FACTS
¶2.
On March 18, 2008, Batesville police officers Michael Hardin and Freddie Payne
were on patrol. They came upon a red pickup truck driven by Robinson. The officers
testified that Robinson’s truck’s stereo was very loud in violation of a Batesville city
ordinance. As a result of this violation, they performed a traffic stop.
¶3.
Officers Hardin and Payne approached the truck and asked Robinson for his driver’s
license. Robinson claimed he had left it at home. Officer Hardin then asked Robinson for
his name, date of birth, and age. Robinson gave an age and a date of birth that were not
consistent. Officer Hardin also testified that Robinson appeared to be very nervous.
¶4.
The officers ordered Robinson to step out of the truck. Officer Payne then performed
a pat-down search to insure that Robinson was not armed. Officer Payne then asked
Robinson for consent to search his person. Robinson consented. Officer Payne discovered
a tightly rolled one-dollar bill in the pocket of Robinson’s pants, which Officer Payne knew
to be associated with cocaine use. The officers then asked Robinson for consent to search
the truck. Robinson consented. They discovered a piece of a plastic sandwich bag with
white powdery residue on it.
¶5.
Officer Payne testified that, based on his experience, he knew that people in
Robinson’s position sometimes hid drugs in their mouths. He ordered Robinson to open his
mouth. Robinson opened his mouth, and Officer Payne could see a white object underneath
Robinson’s tongue. Robinson tried to swallow the object, so Officer Payne grabbed him by
the neck, just underneath the Adam’s apple, to prevent him from swallowing. Eventually,
Robinson spit the object out of his mouth. It was a heat-sealed plastic bag containing an offwhite rock-like substance. The crime laboratory later determined the substance to be 0.3
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gram of crack cocaine.
¶6.
The following day, Officer Payne visited Robinson in jail. Officer Payne testified that
Robinson waived his Miranda rights and confessed that the cocaine belonged to him.
¶7.
Robinson was convicted for possession of at least 0.1 gram but less than two grams
of a Schedule II controlled substance in violation of Mississippi Code Annotated section 4129-139(c)(1)(B) (Rev. 2009). Robinson was sentenced as both a habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev. 2007) and as a subsequent drug offender
under Mississippi Code Annotated section 41-29-147 (Rev. 2009). He was sentenced to
twelve years in the custody of the Mississippi Department of Corrections without eligibility
for probation or parole.
ANALYSIS
¶8.
Robinson argues that his attorney provided ineffective assistance and, thus, deprived
him of his constitutional right to counsel. The basis for Robinson’s claim is that his attorney
did not move for a directed verdict at the close of the State’s case-in-chief and that he did not
request a peremptory jury instruction. Robinson contends that these omissions amount to
ineffective assistance of counsel.
¶9.
To prove ineffective assistance of counsel, Robinson must show that: (1) his counsel’s
performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The burden of proof rests with Robinson to show
both prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under Strickland, there
is a strong presumption that counsel’s performance falls within the range of reasonable
professional assistance. Strickland, 466 U.S. at 689. To overcome this presumption, “[t]he
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defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
¶10.
Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal
should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the
appellate court to make the finding without consideration of the findings of fact of the trial
judge.” Colenburg v. State, 735 So. 2d 1099, 1101 (¶5) (Miss. Ct. App. 1999). If this Court
does not reverse on other grounds and is unable to conclude that the defendant received
ineffective assistance of counsel, it should affirm “without prejudice to the defendant's right
to raise the ineffective assistance of counsel issue via appropriate post-conviction
proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is
confined strictly to the record. Id. at 1102 (¶6).
¶11.
Robinson’s appeal is based on the authority found in Holland v. State, 656 So. 2d
1192 (Miss. 1995). In Holland, the defendant was convicted of possession of cocaine with
intent to distribute. Id. at 1194. His attorney did not move for a directed verdict, request a
peremptory instruction, or file a single post-trial motion. Id. at 1197. Because of those
omissions, the circuit court did not have an opportunity to examine the sufficiency of the
evidence. Id. at 1197-98. On appeal, the Mississippi Supreme Court found that there was
insufficient evidence that the defendant intended to distribute the cocaine. Id. at 1198. In
turn, the supreme court held that the attorney’s failure to raise a sufficiency challenge before
the circuit court amounted to ineffective assistance of counsel. Id. The supreme court found
that there was a reasonable probability that, had the attorney raised a sufficiency challenge,
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the circuit court would have ruled in favor of the defendant. Id.
¶12.
Here, Robinson does not establish a reasonable probability that, had his attorney
moved for a directed verdict or requested a peremptory instruction, the circuit court would
have ruled in his favor. Unlike in Holland, here, there was ample evidence to support
Robinson’s conviction for possession of cocaine. Officers Hardin and Payne testified that
Robinson had the cocaine in his mouth, which the crime lab determined amounted to 0.3
gram. In addition, Officer Payne testified that, on the day following the arrest, Robinson
admitted that the cocaine belonged to him. Thus, had Robinson’s attorney challenged the
sufficiency of the evidence in a motion for a directed verdict or a request for a peremptory
instruction, the circuit court would have been correct to deny the motion and the request.
Robinson has not shown that his attorney’s alleged deficiencies prejudiced his defense.
Thus, he has not met the second prong of the Strickland test.
¶13.
We find that the record before us on appeal is insufficient to address any other
potential claim of ineffective assistance of counsel.
As such, we deny relief on the
ineffectiveness claim made by Robinson in this appeal and affirm his conviction without
prejudice to Robinson so that he may, if he so chooses, present any other potential claim of
ineffective assistance of counsel not apparent in the record before us that he may have.
¶14. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF TWELVE
YEARS AS A HABITUAL AND SUBSEQUENT OFFENDER IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY
FOR PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO PANOLA COUNTY.
LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR.
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