Willie Duck v. State of Mississippi ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00362-COA
WILLIE DUCK APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/21/2015
TRIAL JUDGE: HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: RONNIE LEE HARPER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF MORE
THAN TWO GRAMS BUT LESS THAN TEN
GRAMS OF A CONTROLLED SUBSTANCE
WITH INTENT TO SELL OR DISTRIBUTE
AND SENTENCED AS A HABITUAL
OFFENDER TO SERVE TWENTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
WITHOUT ELIGIBILITY FOR PAROLE,
PROBATION, OR ANY REDUCTION OR
SUSPENSION OF SENTENCE
DISPOSITION: AFFIRMED - 04/11/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
LEE, C.J., FOR THE COURT:
¶1. Willie Duck was convicted in the Adams County Circuit Court of possession of more
than two grams but less than ten grams of a controlled substance with intent to sell or
distribute. After a bifurcated hearing, Duck was sentenced as a habitual offender to serve
twenty years in the custody of the Mississippi Department of Corrections (MDOC). Duck
raises the following issues: (1) he was not properly sentenced as a habitual offender; (2) he
was entitled to a new trial; (3) the trial court failed to grant a mistrial; (4) newly discovered
evidence entitled him to a new trial; (5) the evidence was insufficient to support the verdict;
and (6) ineffective assistance of counsel. Finding no merit, we affirm.
FACTS
¶2. On September 19, 2014, the Adams County Sheriff’s Department, working with the
Metro Narcotics Unit, staged a drug buy using a confidential informant. According to
Officer Shane Daugherty, he was contacted by the confidential informant, Jessica Biglane,
concerning a possible drug buy. According to Biglane, Duck had contacted her in order to
sell methamphetamine from Biglane’s house located in Fenwick, Mississippi. Biglane
testified that Duck indicated he needed to leave Natchez, Mississippi, due to a recent
interaction with law enforcement.
¶3. Officer Daugherty, along with Agent David Washington of the narcotics unit, met
with Biglane to provide her with money and to install recording devices in her vehicle.
Biglane was instructed to drive to a local grocery store in Adams County where the agents
would apprehend Duck after the drug buy. Officer Daugherty and Agent Washington
followed Biglane as she picked up Duck and proceeded to the grocery store.
¶4. Agent Washington testified that he, Officer Daugherty, and Lieutenant George Pirkey
approached Biglane’s vehicle after it reached the rendezvous point. Agent Washington
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stated that as Duck was exiting the front passenger side of Biglane’s vehicle, he dropped a
plastic bag on the ground near his feet. Officer Daugherty testified that he could see Duck
sitting in the front passenger side holding cash in one hand and a bag containing white rocks
in his other hand. But Officer Daugherty did not see Duck drop the bag, only that Duck’s
hands were empty by the time he exited the vehicle. Lieutenant Pirkey was waiting in the
area when Biglane’s vehicle arrived at the grocery store. Lieutenant Pirkey testified that he
approached the vehicle with the other agents and saw Duck drop a plastic bag as he exited
the vehicle. Lieutenant Pirkey then retrieved the bag, and Duck was arrested. The substance
in the bag was later tested and determined to be methamphetamine.
DISCUSSION
I. Habitual-Offender Status
¶5. To be sentenced as a habitual offender under Mississippi Code Annotated section 99-
19-81 (Rev. 2015), the State must prove that the defendant had “been convicted twice
previously of any felony or federal crime upon charges separately brought and arising out of
separate incidents at different times and . . . sentenced to separate terms of one (1) year or
more in any state and/or federal penal institution, whether in this state or elsewhere . . . .”
¶6. Duck argues that the evidence the State used to prove one of his prior convictions was
not sufficient.1 Duck had been convicted on July 28, 2000, in Louisiana for possession of
cocaine and had been sentenced to seventeen months. The State submitted a document titled
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Duck does not argue that the evidence was insufficient regarding his other prior
conviction. The State had submitted a certified copy of a sentencing order to show Duck
had been convicted on September 12, 2011, of robbery and sentenced to serve seven years
in the custody of the MDOC.
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“Docket Master, Orleans Parish Criminal District Court,” that listed Duck’s conviction and
sentence. The document was certified by the Deputy Clerk of the Orleans Parish Criminal
District Court. During the sentencing hearing, the State noted that it had requested evidence
of Duck’s conviction in Louisiana, and was advised by the clerk that the particular document
was what they normally provided when asked for evidence of a defendant’s prior convictions.
The trial court found the document was sufficient proof, stating that “while it is not a
sentencing order, it is evidence of his prior conviction.”
¶7. This Court has noted that a judgment of conviction is the “best evidence” of a prior
conviction. Hull v. State, 174 So. 3d 887, 901 (¶43) (Miss. Ct. App. 2015) (citation omitted).
However, other forms of evidence, including certified copies of docket entries, have been
allowed. See Vincent v. State, 200 Miss. 423, 424, 27 So. 2d 556, 556 (1946) (certified
copies of docket entries of conviction were sufficient proof of a prior conviction); see also
Lovelace v. State, 410 So. 2d 876, 879 (Miss. 1982) (certified abstracts of court record were
sufficient proof of a prior conviction). Here, the certified document from Louisiana was
sufficient proof of one of Duck’s prior convictions. This issue is without merit.
II. New Trial
¶8. Duck argues that one of the witnesses, specifically Lieutenant Pirkey, was in the
courtroom during a portion of the State’s opening argument. In the middle of the State’s
opening argument, Duck interrupted and invoked Mississippi Rule of Evidence 615. The
trial court acquiesced and removed the witnesses from the courtroom. Duck contends that
Lieutenant Pirkey’s presence in the courtroom during part of the State’s opening argument
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was a deliberate attempt to tailor his testimony to the State’s evidence; thus, he should be
granted a new trial. However, Duck has not produced any evidence to substantiate this claim,
nor has he shown any prejudice resulting from Lieutenant Pirkey’s presence in the courtroom
prior to the rule being invoked. We cannot find any error by the trial court in refusing to
grant Duck’s motion for a new trial.
III. Motion for Mistrial
¶9. Duck next argues that the trial court should have granted his motion for a mistrial.
We review a trial court’s denial of a motion for mistrial under our familiar abuse-of-
discretion standard. Pulphus v. State, 782 So. 2d 1220, 1223 (¶10) (Miss. 2001). During the
State’s direct examination, Officer Washington testified as to what occurred after Duck
exited the vehicle and dropped the bag. Regarding the bag, Officer Washington testified that
“it was partially open . . . . That’s when we realized it was crystal [methamphetamine].”
Duck objected and moved for a mistrial on the ground that the State had not yet produced
testimony that the substance was indeed methamphetamine. The trial court sustained Duck’s
objection but denied his motion for a mistrial. The trial court noted that a prior witness,
Officer Daugherty, had testified that the substance found in the bag that Duck dropped field-
tested positive for methamphetamine. We can find no abuse of discretion by the trial court
in denying Duck’s motion.
IV. New Evidence
¶10. Duck argues that after trial while he was in the county jail, Officer Washington saw
Duck and stated, “I got you!” Duck contends this statement is proof that he was framed by
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the police; thus, he is entitled to a new trial. Duck raised this issue in his posttrial motion,
which the trial court denied. Other than his bare assertion, Duck has not shown how this
“newly discovered evidence” would have produced a different result at trial. See URCCC
10.05(3). We find no merit to this issue.
V. Insufficient Evidence
¶11. Lastly, Duck argues that the evidence was insufficient to support the guilty verdict.
At the close of the State’s case, Duck moved for a directed verdict, which the trial court
denied. Duck did not present any evidence on his behalf. When determining whether the
State presented legally sufficient evidence to support the verdict, “the critical inquiry is
whether the evidence shows beyond a reasonable doubt that [the] accused committed the act
charged, and that he did so under such circumstances that every element of the offense
existed[.]” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). If, viewing the evidence
in the light most favorable to the State, any rational trier of fact could have found, beyond
a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the
conviction. Id. “During the trial, the jury is charged with the responsibility of weighing and
considering the conflicting evidence of the witnesses and determining whose testimony
should be believed.” Winters v. State, 814 So. 2d 184, 187 (¶9) (Miss. Ct. App. 2002)
(citation omitted).
¶12. Here we find sufficient evidence to support the verdict. Both Agent Washington and
Lieutenant Pirkey saw Duck exit the vehicle and drop a bag containing a substance that was
later determined to be methamphetamine. Officer Daugherty saw Duck holding this bag
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prior to exiting the car. This issue is without merit.
VI. Ineffective Assistance of Counsel
¶13. Duck briefly asserts his trial counsel was ineffective for failure to object to two
leading questions that the State asked Officer Daugherty. During Officer Daugherty’s
testimony, the State had asked him what he had heard through the recording device planted
in Biglane’s vehicle. The State was trying to establish that Biglane had exited the vehicle.
Q: And how did you know [Biglane] wasn’t still in the van?
A: Lieutenant Pirkey informed me that she had gotten out of the vehicle
and went into the store.
Q: I believe y’all were listening?
A: Yes.
Q: And were able to hear that also?
A: I could hear [Biglane] getting out of the vehicle. Yes, sir.
¶14. To establish ineffective assistance of counsel, Duck must satisfy the two-pronged test
set forth in Strickland v. Washington, 466 U.S. 668, 686 (1984), and adopted by the
Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468, 476-77 (Miss. 1984). Duck
must demonstrate: (1) counsel’s performance was deficient and (2) that the deficiency
prejudiced the defense. Braggs v. State, 121 So. 3d 269, 272 (¶9) (Miss. Ct. App. 2013).
“The Strickland test is applied with deference to counsel’s performance, considering the
totality of the circumstances to determine whether counsel’s actions were both deficient and
prejudicial.” Id. at 273 (¶11) (citing Conner v. State, 684 So. 2d 608, 610 (Miss. 1996)).
¶15. Generally, ineffective-assistance claims are raised during postconviction proceedings.
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Archer v. State, 986 So. 2d 951, 955 (¶15) (Miss. 2008). However, a claim of ineffectiveness
may be raised on direct appeal “if such issues are based on facts fully apparent from the
record.” M.R.A.P. 22(b). If the record cannot support a claim of ineffectiveness, then the
appropriate action is to deny relief, preserving the appellant’s right to argue the same issue
through a petition for postconviction relief. Braggs, 121 So. 3d at 272 (¶9). Here, the issue
is fully apparent from the record.
¶16. “[T]rial counsel’s failure to object to leading questions, without proof that prejudice
resulted, does not amount to ineffective assistance of counsel.” Bullard v. State, 923 So. 2d
1043, 1047 (¶13) (Miss. Ct. App. 2005). According to the record, Duck’s trial counsel did
raise other objections throughout trial, indicating that his decision not to object to the two
leading questions was a matter of trial strategy. See id. Furthermore, Duck has not proved
that prejudice resulted from these leading questions. This issue is without merit.
¶17. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF MORE THAN TWO GRAMS BUT LESS
THAN TEN GRAMS OF A CONTROLLED SUBSTANCE WITH INTENT TO SELL
OR DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY
YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR ANY
REDUCTION OR SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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