Tyrone Hairston v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-KA-00422-COA
TYRONE HAIRSTON
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:
APPELLEE
03/02/2010
HON. JAMES T. KITCHENS JR.
LOWNDES COUNTY CIRCUIT COURT
W. DANIEL HINCHCLIFF
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF GRAND LARCENY AND
SENTENCED AS A HABITUAL
OFFENDER TO TEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PROBATION
OR PAROLE
AFFIRMED: 08/30/2011
09/26/2011: GRANTED; AFFIRMED IN
PART, REVERSED AND REMANDED IN
PART - 01/17/2012
MANDATE ISSUED:
EN BANC.
ISHEE, J., FOR THE COURT:
MODIFIED OPINION ON MOTION FOR REHEARING
¶1.
The motion for rehearing is granted, and our original opinion is withdrawn, with this
opinion substituted in lieu thereof.
¶2.
Tyrone Hairston was convicted in the Lowndes County Circuit Court of grand
larceny, and sentenced as a habitual offender to ten years in the custody of the Mississippi
Department of Corrections (MDOC), without eligibility for probation or parole, for stealing
$1,200 from his cousin, Charles Pratt. Hairston appealed, claiming: ineffective assistance
of counsel due to his attorney’s statements during trial in which the attorney admitted that
Hairston took the money. In our original opinion we found that the attorney’s statements did
not rise to the level required to reverse a judgment for ineffective assistance of counsel, and
we affirmed the judgment of the circuit court. Upon rehearing, Hairston asserts that an
intervening decision by the Mississippi Supreme Court reversed prior case law. We agree.
Based on the intervening decision, Gowdy v. State, 56 So. 3d 540 (Miss. 2010) (rehearing
denied March 31, 2011), a criminal indictment cannot be amended to reflect habitualoffender status after the jury has returned a guilty verdict; therefore, Hairston’s sentence as
a habitual offender constitutes an illegal sentence. Accordingly, we affirm Hairston’s
conviction of grand larceny, but we reverse and remand this case for re-sentencing consistent
with this opinion.
FACTS AND PROCEDURAL HISTORY
¶3.
On January 18, 2008, Pratt, Hairston’s cousin, hosted a gathering at his house in
Columbus, Mississippi. Hairston and his girlfriend were present. All of the guests were
drinking alcohol. At some point, Pratt went to sleep on his couch. When he woke up the
next morning, Hairston and his girlfriend were gone, along with $1,200 in cash Pratt had put
in his wallet the night before. Pratt notified the police, and Hairston was apprehended. The
police retrieved $1,200 in cash from Hairston. After being questioned by the police, Hairston
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admitted that he had taken the money, but he insisted that he intended to give the money back
to his cousin.
¶4.
At trial, Pratt testified that he had received $1,600 in cash as a tax refund, which he
put in his wallet. Before he went to sleep that night, he placed the wallet in the back pocket
of his pants. He remembered only Hairston and Hairston’s girlfriend being present when he
went to sleep on the couch. When he awoke, he noticed that money was missing from his
wallet, so he called the police and informed them that he believed his cousin, Hairston, had
stolen the money.
¶5.
Officer Spence Wallingford, with the Columbus Police Department, testified that he
located Hairston at a hotel after the call had been placed about the stolen money. Along with
Officer Travis Robertson, Officer Wallingford interviewed Hairston and Hairston’s girlfriend
at the hotel. Hairston initially stated that he did not know anything about the stolen money,
but he later recanted his story and admitted that he had taken the money. Hairston then
handed Officer Wallingford the cash, which he had been keeping in a duffel bag. Hairston
was immediately arrested.
¶6.
At trial, Officer Robertson corroborated Officer Wallingford’s testimony. Officer
Robertson stated that after Hairston was arrested and taken into custody, he interviewed
Hairston at the police station. Hairston admitted that he had taken the money, and he gave
a sworn statement as to his version of the events that took place at Pratt’s house. Hairston
claimed that after drinking heavily that night, Pratt “started talking and fussing because he
was drunk.” Pratt’s comments made Hairston angry, so Hairston and his girlfriend decided
to leave. Before he left, Hairston saw Pratt’s pants draped on the back of the couch, and
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noticed that Pratt’s wallet was in Pratt’s pants. Hairston then took $1,200 in $100 bills out
of the wallet; then he left Pratt’s house. Hairston and his girlfriend went to a hotel to spend
the night. Hairston claimed that he did not spend any of the money and never had any
intention of spending the money.
¶7.
At the beginning of Hairston’s defense, Hairston’s attorney made the following
comment during his opening statement: “Sometimes you have a good set of facts, and
sometimes you just don’t have such a good set of facts.” He also indicated that Hairston
would testify in his defense and tell his side of the story.
¶8.
During Hairston’s testimony, he stated that Pratt became drunk and verbally abusive
that night, so Hairston and his girlfriend decided to leave and stay at a hotel. Hairston also
stated that two other men were present that night, and there was “activity” going on that
Hairston did not want to be around, since he had been drug-free for approximately five years.
The men left, and Hairston assumed that they were going to a liquor store to buy more liquor.
At that time, Pratt was “passed out” on the couch. Hairston noticed Pratt’s pants on the
couch, and Pratt’s wallet was in the pants. In an effort to protect his cousin from the men
coming back and stealing the money, Hairston testified that he took the money for
safekeeping. Hairston stated that he had planned to return the money the next morning after
Pratt had woken up. Hairston left Pratt’s house shortly before midnight; he was apprehended
at the hotel the next morning a little before 7:00 a.m.
¶9.
During his closing argument, Hairston’s attorney stated that his client did not deny
taking the money, but it was the jury’s job to decide whether Hairston actually “stole the
money.” A jury found Hairston guilty of grand larceny, and Hairston was sentenced as a
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habitual offender to ten years in the custody of the MDOC, without eligibility for probation
or parole. Hairston now argues that he received ineffective assistance of counsel because his
attorney made improper statements regarding his guilt during the defense’s closing argument.
STANDARD OF REVIEW
¶10.
When discussing a claim of ineffective assistance of counsel, this Court follows the
two-prong analysis originally set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). Stringer v. State, 454 So. 2d 468, 476 (Miss. 1984). In
order to prove ineffective assistance of counsel, Hairston must show the following: “First,
. . . that counsel’s performance was deficient. . . . Second, . . . that the deficient performance
prejudiced the defense.” Liddell v. State, 7 So. 3d 217, 219 (¶6) (Miss. 2009) (quoting
Strickland, 466 U.S. at 687). In order to prevail on a claim of ineffective assistance of
counsel, an appellant must demonstrate that his counsel's performance was deficient, and, but
for that deficiency, the outcome of the case would have been different. Strickland, 466 U.S.
at 687. Further, this Court “must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.” Liddell, 7 So. 3d at 219 (¶6)
(citation omitted).
DISCUSSION
I.
¶11.
INEFFECTIVE ASSISTANCE OF COUNCIL
Hairston argues that his counsel improperly conceded Hairston’s guilt at trial. In
order to determine whether Hairston’s counsel was deficient in his performance, it is
necessary to review the specific comments made by the attorney. During his opening
statement, Hairston’s attorney made the following remarks to the jury:
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Thank you, Your Honor. As I’ve said earlier, I’m always humble [sic] by the
privilege and ever mindful of the responsibility that I have as a citizen of
Lowndes County to the jurors here. Sometimes you have a good set of facts,
and sometimes you just don’t have such a good set of facts, [b]ut we do the
best we can with what we have.
We’re going to put Mr. Hairston on the stand. Apparently he took the money.
We’re going to put Mr. Hairston on the stand and let him tell you his story, and
I think that would be my opening statement, Your Honor.
Hairston’s attorney later stated the following in his closing argument:
Now, we’ve made no -- well, it’s undisputed that [Hairston] took the money,
that he claims that he was going to take it to keep somebody from getting it.
Okay. When he got to the hotel, he apparently checked into the hotel
sometime that night relatively late. Preparing to go to work the next morning[,
m]ixed his money with the $1[,]200 that belonged to Mr. Pratt. [sic] Put it in
a glass case and put it in his duffel bag. Got up the-- [sic] paid for the room
apparently out of his money because Mr. Pratt’s $1[,]200 was still there and
was recovered along with the balance of Mr. Hairston’s money.
He paid for the room. I don’t know if they stopped and ate or anything. But
regardless of what they did, the $1[,]200 that belonged, undisputedly
belonged[,] to Mr. Pratt was still there, okay.
Now, the next morning, you know, did he have the opportunity to go spend it,
to steal it, if you will. I don’t think he had a window of opportunity to do that
because the police came over something before 7:00. Was he going to do that?
I don’t know. That’s your job. That’s not mine. But the point of the matter
is, the law says that he unlawfully, willfully, and feloniously[] take, steal[,] and
carried [sic] away whatever it is the grand larceny is charged. In this case the
$1[,]200.
We know, that as I’ve said, that he got the money. We know that Mr. Pratt got
his $1[,]200 back. He didn’t get $1[,]200 back in [$]20s or [$]5s or pay you
next week. He got his $1[,]200 back sometime relatively the [sic] early the
next morning. It was receipted [sic] to him by Officer Robertson. So we know
he got his money back.
What we don’t know and what is your job to do is to determine if Mr. Hairston
stole the money. Did he steal it? I don’t know. That’s your job, okay. I think
there’s a mark [sic] difference. But what I think doesn’t matter. . . .
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Any rate, here we are. Now it’s your turn. You’ve heard the facts. You’ve
heard the testimony, and you’ve heard all the arguments and fights and so forth
and so on about what happened. Now it’s your turn. Thank you very much.
¶12.
While the comments made by Hairston’s attorney may not be considered to be a
vigorous defense on Hairston’s behalf, we do not find that these comments rise to the level
of ineffective assistance of counsel. Hairston admitted to the police officers at the hotel and
later, on the witness stand, that he had taken Pratt’s money. Yet he was able during his live
testimony to provide his own explanation to the jury as to why he took the money. Thus, it
was not improper for Hairston’s attorney to state that Hairston admitted that he had taken the
money, as Hairston himself made that same admission on the witness stand. However,
Hairston’s attorney failed to support that admission with an explanation and defense as to
why Hairston took the money.
¶13.
Nonetheless, Hairston has failed to prove that, but for the attorney’s comments, the
outcome of the trial would have been different. It appears that the jury simply did not accept
Hairston’s claim that he was only holding Pratt’s money for safekeeping. As such, Hairston
cannot satisfy the second prong required by Strickland. Accordingly, we affirm the trial
court’s judgment.
II.
¶14.
ILLEGAL SENTENCE
During the briefing of this case, the supreme court issued Gowdy. In Gowdy, the
supreme court held that an indictment cannot be amended to reflect habitual-offender status
after a jury returns a guilty verdict. 56 So. 3d at 546 (¶22). In the present case, the jury
returned a guilty verdict on February 10, 2010. The record shows that over a year prior to
trial, on May 12, 2008, Hairston disclosed on a pre-sentencing report that he had three prior
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felony convictions: one count of burglary and two counts of sale of marijuana. All three
convictions were in Lowndes County, but the record is silent as to why he was not originally
indicted as a habitual offender, or why the indictment was not amended prior to trial and after
Hairston had declined to accept at least two plea offers by the State. On the day after the
trial, February 11, 2010, the State moved to amend the indictment to reflect habitual-offender
status. The circuit court granted the motion to amend on the following day, February 12,
2010. The circuit judge held a sentencing hearing on March 1, 2010, and stated he had set
the date to allow the parties time to “investigate” habitual-offender status. The following
day, on March 2, 2010, the circuit court sentenced Hairston to ten years as a habitual
offender. At the time the circuit judge sentenced Hairston, the supreme court had not decided
Gowdy; therefore, at that time, there was no prohibition against amending an indictment after
a jury verdict to reflect habitual-offender status. While this issue was not raised in the briefs
on the merits, which were filed before Gowdy issued, upon rehearing we find that this Court
has no choice based on the holding in Gowdy but to affirm Hairston’s conviction, but we
reverse and remand the case to the circuit court for re-sentencing.
¶15. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF GRAND LARCENY IS AFFIRMED, THE SENTENCE IS
REVERSED, AND THIS CASE IS REMANDED FOR RE-SENTENCING. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON,
MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.
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