Markeith D. Fleming v. State of Mississippi , 2015 Miss. App. LEXIS 201 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KA-01858-COA
MARKEITH D. FLEMING A/K/A MARKEITH APPELLANT
DARRELL FLEMING
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/17/2013
TRIAL JUDGE: HON. C.E. MORGAN III
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, MURDER, AND
SENTENCED TO LIFE, AND COUNT II,
AGGRAVATED ASSAULT, AND
SENTENCED TO TWENTY YEARS, WITH
THE SENTENCES TO RUN
CONSECUTIVELY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
DISPOSITION: AFFIRMED - 04/14/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1. This appeal proceeds from a judgment of conviction for murder and aggravated
assault entered against Markeith Fleming following a jury trial in the Attala County Circuit
Court on September 16-17, 2013. The trial court sentenced Fleming to life imprisonment on
the charge of murder and ordered him to serve a twenty-year sentence for aggravated assault,
with the sentences to run consecutively. The trial court denied Fleming's motion for a
judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Fleming now
appeals, arguing that (1) the trial court erred in denying his motion for a continuance; (2)
Fleming received ineffective assistance of counsel; and (3) the verdict was against the
overwhelming weight of the evidence. Finding no error, we affirm.
FACTS
¶2. On September 1, 2012, Derrick Hannah and his cousin, Christopher Graham, were
shot while driving home from Kosciusko, Mississippi. Hannah testified that he and Graham
rode in a TrailBlazer, with Graham as the driver and Hannah riding in the passenger seat.
Hannah testified that a white car pulled beside the TrailBlazer, and the occupants of the white
car started shooting into the TrailBlazer. Graham pulled the TrailBlazer to the side of the
road, parked, and died moments later from gunshot wounds to his neck and chest. Hannah
testified that when he tried to get out of the vehicle, he fell and lacked the ability to get up
due to gunshot wounds to his side and stomach, which left him paralyzed from the chest
down.
¶3. Police at the scene found a bag of what appeared to be marijuana in the lap of the
deceased victim, Graham, and a "palm-size amount" of marijuana on the passenger-side floor
near the door seal. Police recovered a .40 caliber Glock handgun and a spent shell casing by
the driver's (Graham) seat console in the TrailBlazer, and police also discovered four 7.62
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x 39 mm spent shell casings in the road within about 400 feet from the TrailBlazer. Police
recovered no gun from which the 7.62 x 39 casings were allegedly fired. An Attala County
grand jury later indicted and charged Fleming with one count of deliberate-design murder
and one count of aggravated assault.
¶4. At trial, the surviving passenger of the Trailblazer, Hannah, testified that as the white
car approached the Trailblazer on the road, the driver, Graham, said “they about to shoot us,”
and Hannah “looked right quick” and started ducking. Hannah testified that he possessed
“no doubt” that Markeith Fleming was the shooter. Hannah testified that Fleming drove “like
a white [Nissan] Altima.” Hannah also testified that the gun used in the incident was a pistol.
Hannah stated that he and Fleming went to school together, and that he had previously seen
Fleming in that type of vehicle. Hannah stated that he knew of no reason why Fleming might
want to shoot him or Graham, nor did he know of anyone else who might have reason to
shoot them. Hannah claimed that shooting lasted for thirty or forty seconds, but admitted
“that's a guess about how long the shooting lasted.” When asked if more than one person
was in the white car, Hannah responded: “It might have been, but I didn't see nobody else
though.”
¶5. Another witness, Fleming's cousin, Latanya Love, arrived at the scene to help Graham
and Hannah. Love testified that about fifteen minutes before she arrived at the scene, a white
car driving erratically approached her on the same road, and that she let the car pass and
turned around to talk to a friend. Love identified the car as a Nissan Maxima, but stated that
the car did not belong to Alesia Seals, Fleming's girlfriend.
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¶6. Love further testified that an unidentified man flagged her down and directed her to
Hannah and Graham when she resumed her travel down the road. Love walked over to
Hannah and tended to him until medical personnel arrived. Love testified that she asked
Hannah what happened, and he told her “them M.F.'s shot me.” On direct examination, the
State asked Love if Hannah told her who shot him, and Love responded, “he just said
Maurice - - Markeith. He didn't say he shot me. He just said his name.” Love testified that
“everybody around that was coming on the scene kept saying that.” On cross-examination,
Love explained that Hannah gave no name to her but only told her that "them M.F.'s shot
me," and she testified that she provided this information in her initial statement to police.
She testified that police later went to her house after her initial statement, and told her to
rewrite a statement. Love testified that she only told the police that others on the scene were
saying “Markeith,” but she testified that the police told her to write that Hannah identified
Markeith Fleming as the shooter.
¶7. Officer Jimmy Nunn of the Attala County Sheriff's Department testified that he was
dispatched to the scene, where Hannah told Officer Nunn that Fleming had shot him. Officer
Randy Blakely, an investigator for the Attala County Sheriff’s Department, testified that
Fleming came to the police station later that evening, and Officer Blakely obtained a signed
waiver-of-rights form and interrogated him. Fleming told Officer Blakely that he was at his
girlfriend's house in Winona, Mississippi, during the incident. Fleming stated that he had
been at his girlfriend’s house since 10:00 p.m. the night before, and that he did not go to
Attala County the day of the shooting.
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¶8. Officer Jimmie Dale Thomas of the Mississippi Highway Patrol testified that Fleming
also told police that on September 1, 2012, he called his girlfriend, Seals, at 12:15 p.m. and
told her that he was going to go get her car washed, and he did so at 1:00 p.m. at a Chevron
station. Thomas also testified that Fleming said he spoke with Seals’s sister after he washed
the car, and they "came back to town." When Officers Blakely and Thomas finished
interviewing Fleming, Officer Blakely asked for a number at which he could reach Fleming,
and Fleming provided them a contact phone number. Officer Blakely then used the number
to obtain phone records for that number from AT&T. Officer Thomas also took Fleming's
fingerprints at the station.
¶9. Forensic pathologist Erin Barnhart performed an autopsy on Graham. At trial, Dr.
Barnhart testified that Graham suffered gunshot wounds to his nose, torso, chest, and left
hand. Dr. Barnhart recovered two projectiles from Graham's body; one from his central chest
area near the neck, and the other from his lung. Dr. Barnhart’s internal examination revealed
bleeding into the brain, multiple fractures to the rib cage, and lacerations to the left lung and
trachea. Dr. Barnhart concluded that the cause of Graham's death was gunshot wounds, and
the manner of his death was a homicide.
¶10. Crime-scene analyst Khristopher Winger of the Mississippi Bureau of Investigation
testified that he discovered numerous bullet holes ("defects") on the exterior and interior of
the TrailBlazer, as well as projectile fragments and glass in the interior. Winger stated that
he found glass and four 7.62 x 39 mm shell casings in the roadway near the TrailBlazer.
Winger also discovered a "palm-size amount" of a “green, leafy substance” on the passenger
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door seal area. Winger collected projectile fragments from the TrailBlazer's front passenger
seat, back-passenger support post, and back driver-side door seal. He also collected the four
shell casings from the road. Winger sent all of this to the Mississippi Crime Laboratory for
testing.
¶11. Winger then went to Seals's house in Winona to analyze the white Nissan Altima for
fingerprints and gunshot residue. He testified that he observed "a clean odor consistent with
recent cleaning" in the Altima's interior. He also testified that the Altima contained personal
items, drinks, electrical cords, clothing, and blankets. Inside the Altima's trunk, Winger
found clothes, shoes, and a bucket containing a towel and a bottle of Palmolive. Winger
swabbed the interior for gunshot residue and dusted the interior and exterior for fingerprints.
He collected four gunshot-residue vials and twelve latent lift print cards from various
locations inside and outside of the Altima, and he submitted all of this to the Mississippi
Crime Laboratory for testing.
¶12. Chad Suggs of the Mississippi Crime Lab performed a gunshot-residue test on the
four vials Winger collected from Seals’s car. Suggs explained that of the four vials, one of
them—from the back passenger seat—contained “a particle indicative of gunshot residue.”
Suggs explained, “[however, that] this indicative particle does not possess the combination
of morphological characteristics and elemental composition necessary to identify it as
gunshot residue to the exclusion of all other environmental particles.” He testified that this
particle “did not possess the shape nor the elemental composition to say that it is positive for
gunshot residue.” No particles of gunshot residue were found on the other three submissions.
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¶13. Forensic scientist Brian McIntyre was asked to analyze the four 7.62 x 39 mm shell
casings that police recovered from the roadway to determine whether they were fired from
the same gun. He testified that three of the cartridge cases were fired from one gun. The
fourth cartridge case possessed characteristics consistent with the others, but McIntyre could
not scientifically say that it was fired from the exact same gun.
¶14. Forensic scientist Jamie Bush testified as an expert in latent fingerprint examination
and comparison. Bush analyzed the twelve latent prints that Winger collected from the
Altima and compared them to Fleming's prints collected by Officer Thomas after Fleming's
interview. Bush testified that he found sixteen latent prints of value. He identified two of
these prints as Fleming's—one his right middle finger, the other his right ring finger. Both
prints were lifted from above the Altima's front passenger door. Bush testified that the
remaining prints did not belong to Fleming, meaning "there was at least two people's" prints
on the Altima. Bush agreed that it is possible for prints to remain present for two months.
Bush also testified that the latent lifts did not contain any swipe marks, which, if present,
would indicate "a recent swiping of liquid across the surface."
¶15. As its final witness, the State called AT&T design engineer Thomas Gandy. Gandy
testified that he was in charge of designing and optimizing AT&T's cell towers and "RF
network" for Alabama, Mississippi, and the Florida panhandle. Through Gandy, the State
introduced detail records of the mobile number that Fleming provided to police. Among
other things, these records included call and text records, mobile numbers, times, and
descriptions of calls, as well as AT&T’s “location area code,” which identifies a large
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“general area” that the cell phone is in, the numbers indicating the sector and actual tower
that the call came from, and the degrees of latitude and longitude for the site at which the call
was made. Gandy testified that “this information tells us where the mobile [phone] is located
in reference to the cell site,” and it provides a “general idea of which direction the mobile
[phone] is located.” Gandy explained that when a call or text is placed, a signal travels to the
tower with the strongest signal, not necessarily the closest tower. This provides "the general
area" where the phone is located when a call or text is placed. Gandy acknowledged that
numerous variables could affect which tower a phone connects with; for instance, if the
nearest tower is overloaded, the call or text could be shifted to another tower. Gandy
explained that in more rural areas, a phone may connect with a tower up to eight or ten miles
away; and in more urban areas, phones usually connect to towers within two miles.
¶16. Using AT&T's records and his knowledge of AT&T's cell-tower network, Gandy
testified that his analysis indicated that Fleming’s cell phone started in Winona that morning,
moved south through Possum Neck, Mississippi, and then into the Kosciusko area at about
10:00 a.m., where it remained until about noon, and then traveled back north to Winona.
¶17. At the conclusion of Gandy's testimony, the trial court made the following remarks
for the record:
I want to put this in the record.
Mr. Gandy testified on behalf of AT&T. He was the subject of the motion for
continuance. The records that he testified to were furnished to the defendant
by the State in March. Obviously, somebody was going to have to testify to
those records at that time.
It was alleged on the motion for continuance that Mr. Gandy was an expert and
8
that the defense needed time to respond to an expert. Mr. Gandy was neither
offered as an expert, nor did he give any expert opinion in this case. He merely
testified to the records that the defendant had in March. And therefore, there
is no expert testimony to respond to.
The State rested its case-in-chief at the conclusion of Gandy's testimony. Fleming exercised
his right not to testify, and he called no witnesses. After deliberations, the jury returned a
verdict finding Fleming guilty of both murder and aggravated assault. The trial court denied
Fleming's motion for a JNOV or, in the alternative, a new trial. On appeal, Fleming argues
that (1) the trial court erred in denying his motion for a continuance; (2) Fleming received
ineffective assistance of counsel; and (3) the verdict was against the overwhelming weight
of the evidence.
STANDARD OF REVIEW
¶18. This Court’s review of a trial court's actions regarding discovery issues is limited to
an abuse-of-discretion standard. Wyatt v. City of Pearl, 876 So. 2d 281, 283 (¶6) (Miss.
2004) (citing Byrom v. State, 863 So. 2d 836, 849 (¶20) (Miss. 2003)). “The decision to
grant or deny a motion for a continuance is within the sound discretion of the trial court and
will not be reversed unless the decision results in manifest injustice.” Boone v. State, 973
So. 2d 237, 241 (¶13) (Miss. 2008) (quoting Ross v. State, 954 So. 2d 968, 1007 (¶91) (Miss.
2007)). We also acknowledge that Uniform Rule of Circuit and County Court 9.04 provides
guidelines for discovery in order to prevent unfair surprise or ambush by the other party. See
Ben v. State, 95 So. 3d 1236 (¶36) (Miss. 2012); Shaw v. State, 139 So. 3d 79, 86 (¶24)
(Miss. Ct. App. 2013). The Mississippi Supreme Court has addressed these guidelines,
finding that a violation of Rule 9.04 is harmless error unless it affirmatively appears on the
9
face of the record that the violation caused a miscarriage of justice.
¶19. To prove ineffective assistance of counsel, a defendant 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 defendant bears the burden of
proof to show both prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under
Strickland, a strong presumption exists that counsel's performance falls within the range of
reasonable professional assistance. Strickland, 466 U.S. at 689. To overcome this
presumption, “[t]he defendant must show that there is a reasonable probability that, but for
the counsel's unprofessional errors, the result of the proceeding would have been different.”
Id. at 694.
¶20. When an appellant raises a claim of ineffective assistance of counsel on direct appeal,
the claim 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 fails to reverse on other grounds and is unable to conclude that
the defendant received ineffective assistance of counsel, we should affirm “without prejudice
to the defendant's right to raise the ineffective assistance of counsel issue via appropriate
post-conviction proceedings.” Id.
¶21. “In reviewing a challenge to the weight of the evidence, this Court will overturn a
verdict only when it is so contrary to the overwhelming weight of the evidence that to allow
10
it to stand would sanction an unconscionable injustice.” Graham v. State, 120 So. 3d 382,
389 (¶26) (Miss. 2013) (citing Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)). “The
evidence is viewed in the light most favorable to the verdict.” Id.DISCUSSION
I. Motion for a Continuance
¶22. In February 2013, Fleming filed two motions for discovery requesting, among other
things, the names and addresses of all witnesses, including expert witnesses, that the State
proposed to offer at trial, as well as the contents and substance of any statement or opinion
of each witness. In March 2013, the State filed its first discovery response, which included
a copy of extensive AT&T phone records relative to the cell phones at issue in this case, but
the response identified no one from AT&T who would testify to these records at trial.
¶23. On August 13, 2013, the State filed a supplemental discovery response identifying
Michael Lynchard as custodian of records for AT&T. The State’s response disclosed that
the State expected Lynchard to testify as the custodian of the phone records for AT&T.
Three days later, the State filed a request for subpoenas that included Thomas Gandy, also
an AT&T employee. The State then filed a subpoena for Gandy on August 19, 2013.
¶24. Then on August 28, 2013, approximately two weeks before trial, the State filed a
second supplemental discovery response that designated Gandy for the first time as a witness
for the State, and disclosed the following as the substance of his proposed testimony:
“Thomas Gandy, AT&T Engineer—testify at trial regarding AT&T cell towers and cell
tower locations. Also testify to calls and text messages made to and from telephone number
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[****] on September 1, 2012, including cell towers utilized by said numbered phone on said
date.” The State also provided an attached map of cell towers and diagram of calls and
towers, as well as Gandy’s curriculum vitae.
¶25. On September 13, 2013, Fleming filed a motion for a continuance requesting time to
retain an expert to review the AT&T records and determine if a valid rebuttal to Gandy’s
testimony existed. The trial court heard the motion on September 16, 2013, the day of the
trial, and the trial court denied Fleming’s motion for a continuance. The trial court explained
that the State had complied with discovery and provided the defense with the AT&T records
in its first discovery response six months prior to the trial, and that Fleming’s counsel “had
to know that somebody was going to testify to it.”
¶26. Fleming argues that he presented sufficient good cause under the circumstances to
warrant a reasonable continuance in order to afford his trial counsel an adequate opportunity
to make beneficial use of the State’s belated disclosure of Gandy as an expert witness, and
to prepare an adequate defense or rebuttal to Gandy’s testimony. The record reflects that the
trial judge found that the defense received the cell-phone records six months prior to trial,
and the record shows the State supplemented discovery twice prior to trial as to the witnesses
for these records.
¶27. The State maintains that although Gandy could have been qualified as an expert
witness, the State did not tender Gandy as an expert at trial.1 The State argues that Gandy,
1
At trial, the trial judge stated on the record:
It was alleged on the motion for continuance that Mr. Gandy was an expert
and that the defense needed time to respond to an expert. Mr. Gandy was
12
as a representative of AT&T, simply testified as to what he personally observed after viewing
Fleming’s telephone records, and then Gandy used the latitude and longitude points that were
identified in the phone records to place each call and text to a location on a map. The State
asserts that Gandy never offered an expert opinion based upon a hypothetical question or
otherwise.2
¶28. Uniform Rule Circuit and County Court 9.04(G) provides:
Upon a showing of cause, the court may at any time order that specified
disclosures be restricted or deferred, or make such other order as is
appropriate, provided that all material and information to which a party is
entitled must be disclosed in time to permit the party's attorney to make
beneficial use thereof.
The supreme court has held that the “decision to grant or deny a motion for a continuance is
within the sound discretion of the trial court and will not be reversed unless the decision
results in manifest injustice.” Boone, 973 So. 2d at 241 (¶13) (citing Ross, 954 So. 2d at
1007 (¶91)).
¶29. While cognizant of our above-stated standard of review, we also acknowledge that the
record before us shows that the cell-phone records were admitted without objection, and
Fleming filed no pretrial motion to suppress the disclosed AT&T phone records. The cell-
phone records included the following: the date, the connection time, the seizure time, the
originating number, the terminating number, the elapsed time of the call, the mobile serial
neither offered as an expert, nor did he give any expert opinion in this case.
He merely testified to the records that the defendant had in March.
2
Compare M.R.E. 702 (testimony by experts) and M.R.E. 701 (opinion testimony by
lay witnesses).
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number, the number assigned to the phone from AT&T’s switching system, and the
description of the type of call (mobile, land line, etc.). The phone records also contained a
list of call item numbers and times; the tower names that the phone company assigned; and
a call map showing the location, latitude, and longitude of each of AT&T’s towers relative
to calls and texts made and received. The transcript shows Gandy provided testimony to
explain the information in these cell-phone records previously disclosed by the State to the
defense six months prior to the trial. We acknowledge that the record reflects that the
defense received notice of Gandy as a potential witness for the State approximately two
weeks before trial.
¶30. Uniform Rule Circuit and County Court 9.04 addresses disclosure of witnesses prior
to trial. Mississippi Rule of Evidence 701, which governs testimony by lay witnesses, states:
If the witness is not testifying as an expert, the witness's testimony in the form
of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness, (b) helpful to the clear
understanding of the testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702 [of the Mississippi Rules of Evidence].
¶31. In the recent case of Collins v. State, 2013-KA-00761-COA, 2014 WL 4977498, at
*10 (¶42) (Miss. Ct. App. Oct. 7, 2014), this Court found no error where a lay witness
testified at trial regarding cell-phone records in evidence. The Collins court observed that
the witness provided no expert testimony based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. Collins, 2014 WL 4977498, at *10 (¶42). The
witness in Collins used the cell-phone records to plot the latitude and longitude coordinates
of cell phone communications set forth in those records and to plot the geographic location
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of the cell phones identified in these records at the time each communication was made. Id.
at *9 (¶38). Similar to this case, the witness also testified that the resulting map indicated
that the two cell phones at issue therein moved geographically closer to each other as the
night progressed. Id. The Collins court opined:
A reasonably competent layperson, given a small amount of information, could
easily examine a cell-phone record and determine the identity of the cell tower
that handled a particular call. That same layperson, given a map of cell towers
in the area, could identify the approximate location of the cell phone at the
time the call was made or received.
Id. at *10 (¶42) (citing Russ v. Safeco Ins. Co. of Am., No. 2:11CV195-KS-MTP, 2013 WL
1310501, at *29 (S.D. Miss. Mar. 26, 2013) (district court discussed whether certain
testimony about cell-phone records constituted lay testimony or expert testimony)).
¶32. Uniform Rule of Circuit and County Court 9.04(A)(1) “requires the prosecution to
disclose the names and addresses of all witnesses in chief, and any recorded statements made
by the defendant and/or witness, proposed to be offered by the prosecution at trial.”• Shaw
v. State, 139 So. 3d 79, 86 (¶24) (Miss. Ct. App. 2013) (citing Harris v. State, 37 So. 3d
1237, 1241 (¶17) (Miss. Ct. App. 2010)). “The guidelines from Rule 9.04 were intended to
prevent ‘ambush’ or unfair surprise at trial by either party.” Shaw, 139 So. 3d at 86 (¶24).
The record reflects no abuse of discretion by the trial court herein in its finding of no unfair
surprise or ambush by the State, since the phone records, containing the information
constituting the substance of Gandy’s testimony at trial, were provided to the defense six
months before the trial. See Murray v. State, 20 So. 3d 739, 743 (¶12) (Miss. Ct. App. 2009)
(finding that the State provided sufficient notice of a testifying witness where the substance
15
of the witness’s testimony had been provided to the defense).
¶33. After our review, we find no abuse of discretion in the trial court’s admission of
Gandy’s testimony into evidence at trial. See id.; M.R.E. 702. We also find that the defense
received the cell-phone records six months prior to the trial date, and received notice of
Gandy as a State witness approximately two weeks prior to trial. Accordingly, we find no
abuse of discretion in the trial court’s denial of Fleming’s request for a continuance. See
Wyatt, 876 So. 2d at 283 (¶6).
II. Ineffective Assistance of Counsel
¶34. Fleming next claims that he received ineffective assistance of counsel. Specifically,
Fleming argues that his trial counsel performed deficiently when he allowed the State to
present expert testimony through Gandy without tendering him as an expert, and that as a
result, Fleming’s trial was prejudiced.
¶35. Fleming states that Gandy based his testimony that the phone at issue traveled from
Winona to Kosciusko, and then back, on the day of the incident on specialized knowledge
of cellular-tower-network function and operation, as well as Gandy’s engineering expertise
and experience in the field, which exceeds far beyond that of an “average, randomly selected
adult.” Fleming argues that his trial counsel erred in allowing the State to elicit expert
testimony from Gandy without first tendering him as an expert witness. Fleming asserts that
Gandy’s testimony constituted the sole trial evidence placing him at the scene of the
shooting. Fleming argues that without Gandy’s testimony, a reasonable probability existed
that the jury would have weighed the evidence differently and reached a different result.
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¶36. The State asserts that Gandy only testified as to what he personally observed after
viewing Fleming’s phone records. In providing statements as to what the records contained,
Gandy provided no opinion evidence or expert testimony. As a result, the State did not
tender him as an expert.
¶37. The State further argues that Fleming failed to demonstrate that he needed an expert
to meet the evidence presented by Gandy. The State also claims that Fleming never argued
that the AT&T records were inaccurate, nor did he argue that expert testimony was required
to use the latitude and longitude points identified in the phone records to plot a location on
a map.
¶38. To prove ineffective assistance of counsel, Gandy must show that: (1) his counsel's
performance was deficient, and (2) this deficiency prejudiced his defense. Strickland, 466
U.S. at 687. A strong presumption exists that counsel's performance falls within the range
of reasonable professional assistance. Id. at 689. To overcome this presumption, “[t]he
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.
As stated, when a claim of ineffective assistance of counsel is raised on direct appeal, as in
the case before us, the claim 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, 735 So. 2d at 1101 (¶5). If this Court fails
to reverse on other grounds and is unable to conclude that the defendant received ineffective
17
assistance of counsel, we should affirm “without prejudice to the defendant's right to raise
the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id.
We recognize that review on direct appeal of an ineffective-assistance-of-counsel claim is
confined strictly to the record. Id. at 1102 (¶6).
¶39. In this case, the face of the record fails to reflect any merit to Fleming’s claim of
ineffective assistance of counsel. The record reflects no abuse of discretion by the trial court
in the admission of Gandy’s testimony into evidence at trial. Gandy’s testimony was
rationally based upon the information set forth in the disclosed phone records. The trial court
admitted the phone records into evidence at trial without objection, and Gandy’s testimony
provided a helpful and clear understanding of the records. See Collins, 2014 WL 4977498,
at *10 (¶42); M.R.E. 701. Upon review of the record, Fleming therefore failed to establish
any deficiency of performance by his counsel at trial. See Colenburg, 735 So. 2d at 1101
(¶5). Therefore, in this direct appeal, we find this assignment of error lacks merit without
prejudice to Fleming’s right to raise this issue of ineffective assistance of counsel in
appropriate post-conviction-relief proceedings.
III. Weight of the Evidence
¶40. Fleming argues that the trial court’s refusal to grant him a continuance to prepare for
Gandy’s testimony, as well as the improper admission of Gandy’s testimony since the State
failed to tender him as a witness, resulted in a manifest miscarriage of justice. Fleming
asserts that beyond Gandy’s testimony, the State’s remaining evidence against Fleming “was
weak and self-conflicting.” Fleming states that although Hannah claimed to see Fleming
18
point a gun from the white car, Hannah also admitted that he only “looked right quick” and
started ducking before shots were fired.
¶41. In Graham v. State, 120 So. 3d 382, 389 (¶26) (Miss. 2013), the supreme court stated
the standard for reviewing a challenge to the weight of the evidence, explaining:
[T]his Court will overturn a verdict only “when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Bush, 895 So. 2d at 844. The evidence is
viewed in the light most favorable to the verdict. Id. If the verdict is against
the overwhelming weight of the evidence, the proper remedy is to grant a new
trial, but this remedy should be used only in exceptional cases where the
evidence “preponderates heavily against the verdict.” Id.
¶42. A review of the record herein reflects overwhelming evidence supporting the verdict
of the jury. Further, our review reveals no unconscionable injustice that would result from
allowing the verdict to stand. In summary, the trial transcript contains eyewitness testimony
by Hannah, stating that he saw Fleming driving a white Altima and pointing a gun at the
Trailblazer seconds before shots were fired. Hannah testified that he observed no other
person in the white car with Fleming. The record also reflects that Fleming’s girlfriend drove
a white Altima. Cell phone records presented at trial placed Fleming in the same area as the
murder, shortly before the murder occurred. Accordingly, this assignment of error is without
merit.
¶43. THE JUDGMENT OF THE ATTALA COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE, AND COUNT
II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH THE
SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND
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JAMES, JJ., CONCUR. ROBERTS AND FAIR, JJ., CONCUR IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
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