Leo Harris v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 92-CT-00297-SCT
LEO HARRIS
v.
STATE OF MISSISSIPPI
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: 3/10/92
TRIAL JUDGE: HON. ISADORE W. PATRICK
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: W. RICHARD JOHNSON
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: NA
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 2/6/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 3/4/97
EN BANC.
SMITH, JUSTICE, FOR THE COURT:
¶1. Harris, on Petition for Writ of Certiorari, asks that this Court reverse a unanimous Court of
Appeals decision by which that court affirmed his conviction and sentence of sixteen years for
possession of cocaine with intent to distribute. His petition lacks any basis for review; we write today
only in recognition of the need to develop guides and standards for this state's new appellate system.
¶2. The Court of Appeals initially issued an opinion which would have reversed Harris' conviction,
but one day later, recalled that opinion sua sponte and issued another opinion affirming. The only
issue raised by Harris is whether the Court of Appeals erred in recalling its initial opinion one day
after it was handed down but prior to the issuance of the mandate. He cites no authority on that
question, and this Court has held that it need not address issues submitted without supporting
authority. Matter of Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993). Thus, this Court
should not and does not consider Harris's claim on this one asserted ground for certiorari.
¶3. As Mississippi's present appellate system is still in its infancy, we have had little opportunity
through case law to develop the standards of certiorari review which were established in the statutes
and in the Mississippi Rules of Appellate Procedure. It is hoped that today we will contribute to that
development. Certiorari is not a matter of right, and is to be considered only after the petitioner has
sought review of the Court of Appeals decision by way of a petition for rehearing in that court, filed
within fourteen days of entry of its judgment, unless additional time is allowed. That petition is a
jurisdictional prerequisite for certiorari review by this Court. To hold otherwise would be to deny
finality to Court of Appeals decisions, contrary to the express declaration of finality in M.R.A.P.
17(a) and Miss. Code Ann. § 9-4-3(2)(Supp. 1996).
¶4. While the jurisdiction of the Court of Appeals is limited solely to those cases assigned to it by this
Court, once such an assignment is made, that court considers and disposes of each case not by way of
a preliminary review but as a fully empowered appellate court. Except as to those cases which by
statute must be retained by this Court, no litigant has a right to further review by certiorari. Although
Rule 17(a) provides a list of issues as to which review will ordinarily be limited, this Court may grant
or decline to grant certiorari solely in its discretion. Furthermore, it is the obligation of the petitioner
to state in the petition for certiorari the precise basis on which review is sought. See M.R.A.P. 17(a),
(b). One who seeks successive review from this Court must comply with the formal and temporal
requirements of the rules.
¶5. Harris did not seek a timely rehearing, nor has he set forth any cognizable ground for certiorari.
After recalling its first opinion, the Court of Appeals issued a subsequent opinion which was entered
on May 16, 1995. Having become informed of that decision, Harris on June 22, 1995 filed a pro se
motion with this Court seeking suspension of the Rules under M.R.A.P. 2(c). In that motion Harris
stated that his attorney had failed to advise him of the later decision, which he learned of through the
news media. That motion was assigned to the Court of Appeals upon finding that it was in the nature
of a motion for leave to file a petition for rehearing out-of-time. Thereafter, on September 22, 1995,
Harris filed with the Court of Appeals a pro se motion which he characterized as a motion to show
cause, in which he asserted that his lawyer "appears to have relinquished his duty to represent Mr.
Harris any further in this matter." The Court of Appeals, treating that motion too as one seeking
leave for an out-of-time petition for rehearing, denied it. That order was entered on October 31,
1995. On December 8, 1995, Harris, pro se, filed his petition for certiorari.
¶6. Harris's case has received a full appellate review by the Court of Appeals on the record and briefs
of counsel. He was entitled to and had appellate counsel before that court. That was his right. Miss.
Code Ann. § 99-35-101 (Supp. 1994), provides that any person convicted in circuit court has a right
to appeal to the Supreme Court, except when the conviction is upon a plea of guilty. Harden v.
State, 460 So. 2d 1194, 1200 (Miss. 1984). Under our present appellate scheme, all appeals are to
this Court, but are subject to assignment to the Court of Appeals. Miss. Code Ann. §§ 9-4-1 to 17
(Supp 1996). (See discussion of the appellate structure in Marshall v. State, 662 So. 2d 566 (Miss.
1995)). Furthermore, where states have incorporated appellate review as an integral part of the
system for final adjudication of guilt or innocence, that review is raised to the plane of federal due
process and equal protection. Evitts v. Lucey, 469 U.S. 387, 392 (1985); Griffin v. Illinois, 351
U.S. 12, 18 (1956).
¶7. Harris urges that his failure to seek timely rehearing and certiorari was the result of his attorney's
failure to notify him of the decision by the Court of Appeals. In effect, he argues that the rules should
be suspended due to ineffectiveness of his counsel who he charges with failure to properly represent
him after this case was reviewed by the Court of Appeals. In this, his underlying premise--that he is
entitled to counsel in pursuing further discretionary review by this Court--is flawed. The right to
appointed counsel in criminal proceedings is not without limits; it is in fact limited by the statute
which defines that right, Miss. Code Ann. § 99-15-15 (Rev. 1994). That section declares:
When any person shall be charged with a felony, misdemeanor punishable by confinement for
ninety (90) days, or more, or commission of an act of delinquency, the court or the judge in
vacation, being satisfied that such person is an indigent person and is unable to employ counsel,
may, in the discretion of the court, appoint counsel to defend him.
Such appointed counsel shall have free access to the accused who shall have process to compel
the attendance of witnesses in his favor.
The accused shall have such representation available at every critical stage of the proceeding
against him where a substantial right may be affected.
(emphasis added).
¶8. The crucial portion of the statute, for present purposes, is the limitation of appointment of
counsel to those stages where a substantial right of the defendant is involved. Neither the protection
guaranteed by the United States Constitution nor the examples found in sister states which allow only
discretionary appellate review mandate appointment of counsel for such further review, or for its
perfection. After a careful examination of those authorities, we conclude that this Court should not
require continued assistance of appointed defense counsel where the defendant in criminal
proceedings seeks certiorari.
¶9. In Ross v. Moffitt, 417 U.S. 600 (1974) (citing Douglas v. California, 372 U.S. 353 (1963)), the
United States Supreme Court held that although the Fourteenth Amendment requires appointed
counsel on the first appeal for indigent defendants, it does not require appointed counsel to indigent
defendants seeking discretionary, second-tier, appellate review. See Wainwright v. Torna, 455 U.S.
586 (1982) (holding that since, under Ross the appellant had no constitutional right to counsel on a
discretionary appeal, he was not deprived of effective assistance of counsel by his retained counsel's
failure to timely file an application for certiorari in the Supreme Court of Florida). In Ross, having
found that the North Carolina appellate system provides for review by the Court of Appeals as a
matter of right and further review by the Supreme Court as discretionary, the Court then looked to
the state statute providing for appointment of counsel and found that, as interpreted, it did not go
beyond the mandate of Douglas, requiring appointment only as to appeals which are matters of right.
In Wainwright, it was urged that the appellant's retained counsel had promised to seek certiorari in
the Supreme Court of Florida, that he failed to file the petition, and that it was Torna's reliance on
that promise and the attorney's failure to fulfill it that prevented Torna from filing a timely pro se
petition. The United States Supreme Court declared directly and clearly that because he had no
absolute right to further appeal to the Supreme Court of Florida, he was not constitutionally entitled,
constitutionally, to counsel and could not, therefore, be deprived of a constitutionally based right to
effective counsel. Id. at 587-88. More recently, the United States Supreme Court, in Austin v.
United States, 115 S. Ct. 380 (1994), held that appointed counsel is under no obligation to file a
petition for certiorari if such petition would be frivolous, and in fact, that such filings are forbidden by
the Supreme Court's own rules. The United States Supreme Court also stated in Anders v.
California, 386 U.S. 738 (1967) that an appellant's right to have a brief filed on his behalf by an
attorney did not extend to forums for discretionary review. Austin, 115 S. Ct. at 381. See also
United States v. Ferrell, 730 F. Supp. 1338 (E.D. Pa. 1989) (alleged failure to notify appellant that
Third Circuit had affirmed conviction could not rise to the level of a constitutional violation).
¶10. States with systems of discretionary further review by their highest courts, generally conclude,
in the absence of a special state statute or rule, that there is no right to counsel beyond the initial,
mandatory, appellate consideration. Alabama guarantees, as a right, an appeal to the Court of
Criminal Appeals of Alabama. However, since certiorari to her Supreme Court is discretionary,
Alabama holds that there is no meritorious claim of ineffective assistance of counsel by failure of the
attorney to file a petition for writ of certiorari. Jackson v. State, 612 So. 2d 1356 (Ala. Cr. App.
1992); Cunningham v. State, 611So. 2d 510 (Ala. Cr. App. 1992).
¶11. Regarding the issue of whether counsel is even required to file a petition for rehearing, in Kinsey
v. State, 545 So. 2d 200 (Ala. Cr. App. 1989), the Court of Criminal Appeals of Alabama held that
rehearing before that court is likewise a matter of discretion to which the right of counsel did not
attach. The court, relying on Ross and Wainwright found the dispositive question to be "whether a
rehearing in the Alabama Court of Criminal Appeals is a matter of right or a matter of discretionary
review." The court noted that by statute all persons convicted of criminal offenses have a right to
appeal to the Court of Criminal Appeals; and that any subsequent review is by writ of certiorari to the
Supreme Court of Alabama. The court concluded that "a rehearing by this Court lies somewhere
between a defendant's first appeal as a matter of right and a subsequent discretionary review."
Kinsey, 545 So. 2d at 203.
¶12. In Patty v. State, 652 So. 2d 337 (Ala. Crim. App. 1994) it was also held that failure to file a
petition for rehearing before the Court of Criminal Appeals would not provide a claim of ineffective
assistance of counsel in view of the discretionary nature of rehearings. The case at bar is markedly
similar to Kinsey. As in Kinsey and Patty, our appellate rules contemplate discretionary second-tier
appellate review; there is no Mississippi statute or rule which grants rehearing as a matter of right.
¶13. In 1974, the Supreme Court of Florida held that an attorney's failure to seek a writ of certiorari
or alternatively to notify his client of his right to apply for it does not constitute a violation of the
client's right to appeal. In so doing, that Court specifically held that certiorari is limited to specific
situations and is discretionary with the Court. Rhome v. State, 293 So. 2d 761 (Fla.1974). Shortly
thereafter, the Fifth Circuit took a contrary view where a prisoner sought federal habeas corpus relief
from a conviction in state court. Pressley v. Wainwright, 540 F.2d 818 (5th Cir. 1976), cert. denied,
430 U.S. 987 (1977). Pressley's conviction had been affirmed by a split panel of the Florida District
Court of Appeals. His court-appointed counsel failed to file a timely petition for certiorari, and thus,
failed to preserve his right to review under the Florida Rules of Appellate Procedure. Holding that
Pressley's right to petition for certiorari was frustrated by ineffective assistance of counsel, the Fifth
Circuit, affirming the federal district court, conditionally granted the writ of habeas corpus.
¶14. Torna v. Wainwright, 649 F.2d 290 (5th Cir. 1981), grew out of the assertion that the failure of
counsel to file a timely petition for certiorari with the Supreme Court of Florida was a deficiency so
gross as to render the proceedings fundamentally unfair. The United States District Court denied
Torna's petition for habeas corpus, finding that the attorney's action only prevented Torna from
applying for further discretionary review, and the Fifth Circuit reversed, citing its own decision in
Pressley. Torna v. Wainwright, 649 F.2d 290 (5th Cir. 1981). In reversing the Fifth Circuit Court of
Appeals, the United States Supreme Court said:
In Ross v. Moffitt this Court held that a criminal defendant does not have a constitutional right
to counsel to pursue discretionary state appeals or applications for review in this Court.
Respondent does not contest the finding of the District Court that he had no absolute right to
appeal his convictions to the Florida Supreme Court. Since respondent had no constitutional
right to counsel, he could not be deprived of the effective assistance of counsel by his retained
counsel's failure to file the application timely. The District Court was correct in dismissing the
petition.
Wainwright, 435 U.S. at 557-58. (citations omitted) Under these decisions, a party, in Florida has
neither a state based nor a federally constitutionally mandated right to claim a violation of his
appellate rights when his attorney has failed to preserve his opportunity to seek discretionary review
by the Supreme Court of Florida.
¶15. In Georgia, certiorari was granted in Wooten v. State, 266 S.E.2d 927 (Ga. 1980) in order to
decide whether appointed counsel has the duty to apply for a writ of certiorari after the conviction
has been affirmed by the Court of Appeals. Citing Strozier v. Hopper, 216 S.E. 2d (Ga. 1975) and
Ross v. Moffitt at 417 U.S. 616, the Georgia Supreme Court found that there is no such duty.
Wooten, 266 S.E.2d at 927
¶16. In Foy v. State, 844 P.2d 744 (Kan. 1993), the Court of Appeals of Kansas, relying on
Wainwright, rejected Foy's claim of ineffective assistance of counsel based upon the failure of his
appointed attorney to inform him that he could seek review in the Supreme Court of Kansas. Foy's
claim that he had been denied a due process right of access to the state's appellate courts was also
denied. The court also held that Foy had no constitutional right to pursue a discretionary appeal to
the Supreme Court of Kansas and was not deprived of effective assistance of counsel by counsel's
failure to file a petition for review.
¶17. In Talley v. Maggio, 451 So. 2d 1358 (La. Ct. App. 1984), referring to the state constitution
and right to counsel, the Court of Appeals of Louisiana found that the failure of appellate counsel to
inform the appellant when to apply for further review through rehearing or writs does not constitute
ineffective assistance of counsel. The court also found that although there was a right to judicial
review under the Louisiana constitution, Talley "had already received the benefit of that right by his
appeal to the Court of Appeals." The court concluded that since there was no constitutional right to
further review, the failure to inform Talley of when to apply for such review was not a deprivation of
the right to counsel.
¶18. Colorado reaches a different conclusion, but only after consideration of her own statutes and
rules. There, although review on certiorari may be considered discretionary, the filing of a petition for
rehearing and a petition for certiorari are rights, and an attorney's failure to pursue the filing
constitutes ineffective assistance. People v. Valdez, 789 P.2d 406 (Colo. 1990) (holding that, in that
case, the failure was not prejudicial.) See also People v. Williams, 736 P.2d 1229 (Colo. 1986)
(recognizing that the filing of a petition for rehearing is a matter of right.) In Valdez v. Gunter, 768
F. Supp. 299 (D. Colo., 1991), the United States District Court for the District of Colorado reviewed
Valdez's claim on a petition for habeas corpus. That court held that whatever right there may be to
file the petitions under state law, such right was not mandated by the federal constitution.
¶19. In Tennessee, through legislation, rule making and decisions, a system exists whereby a
defendant in a criminal case is given some degree of right to counsel on certiorari review. In
Hutchins v. State, 504 S.W.2d 758 (Tenn. 1974) the Supreme Court of Tennessee held that under its
statutes, particularly T.C.A. 40-2018 (Orig. ed.) providing that appointed counsel shall represent the
defendant "at all stages" of the proceedings before the appointing court and upon "any appeal," the
right to appellate counsel extends through certiorari review. The court observed the similarity of that
language and that of Fed. Rules Crim. Proc. 44(a) (requiring counsel "at every stage of the
proceeding . . . through appeal") and the Criminal Justice Act, 18 U.S.C.§ 3006A(c) (also requiring
counsel "at every stage" through appeal including ancillary matters), and correctly pointed out that
the federal courts have held that language to guarantee counsel through certiorari review. Soon
thereafter, that court observed that Hutchins, decided, of course, prior to Ross, rested "on the
implicit expectation that the United States Supreme Court would require that the state track the
federal system by mandating lawyer prepared certiorari petitions for indigent defendants at the second
tier discretionary level." State v. Williams, 529 S.W.2d 714, 716 (Tenn. 1975). In 1976 the statute
was amended to provide that "appointed counsel . . . is not required to pursue the matter through a
second tier discretionary appeal, by applying to the supreme court for writ of certiorari." Acts 1965,
ch. 217, § 5; 1796, ch. 645, § 1; T.C.A. 40-2018 (Orig. ed.); T.C.A. 40-14-203 (Rev. 1990);
Tolliver v. State, 629 S.W.2d 913 (Tenn. 1981). In Tolliver, it was held that, due to the express
provisions of Rule 14 of the Tennessee Supreme Court Rules, an indigent's counsel is required, in
order to withdraw after a final adverse decision in the Court of Criminal Appeals, to take certain
formal steps including advising the defendant of the right to file a pro se application for permission to
appeal to the Supreme Court of Tennessee.
¶20. In Texas, there is also no right to counsel on petition for certiorari. Peterson v. Jones, 894
S.W.2d 370 (Tex. Crim. App. 1995) (holding that court appointed-counsel who files a petition for
certiorari is not entitled to compensation); Ex parte Jarrett, 891 S.W.2d 935 (Tex. Cr. App. 1994);
Ayala v. State, 633 S.W.2d 526 (Tex. Crim. App. 1982). Texas, however, does subscribe to the
minority view that there is a duty on the part of appellate counsel to advise the client of his right to
seek certiorari pro se, and that failure to so notify will constitute a deprivation of his right to apply
for such additional review. Jarrett, 891 S.W. 2d at 939.
¶21. Mississippi has neither statute nor rule which would compel the appointment of counsel in a
second-tier review. Rule 6(b)(1) of the Mississippi Rules of Appellate Procedure concerns appointed
counsel on appeal being required to continue unless relieved by order of the trial court prior to
perfection of the appeal, or by order to this Court after perfection of the appeal. Rule 46 addresses
withdrawal of appellate counsel. These rules do not, however, address the duty of counsel as to
discretionary second-tier appellate review. If it should be determined that such continued
representation is to be required, that should be accomplished by amendment of Rule 6 or by statute,
not by stretching the application of existing rules.
¶22. Appointed counsel is not required by our constitution, statutes, or rules at the post-conviction
relief stages of the appellate process, even though there is a right to file such proceedings. In Neal v.
State, 422 So. 2d 747 (Miss. 1982), this Court held that an appellant's right to counsel exists only
during the direct appeal; thus, an indigent prisoner seeking post-conviction relief was not entitled to
appointed counsel. Why, having refused to extend the right to counsel on post-conviction relief cases,
would this Court proceed to extend counsel to the discretionary second-tier appellate level, such as
the filing of petitions for rehearing before the Court of Appeals and petitions for writ of certiorari
before this Court? Unnecessarily adopting such a practice would absolutely overwhelm the public
defenders, especially those in small, less populated, rural counties.
¶23. In summary, there is no right based in the United States Constitution to counsel on discretionary
successive review of a state appellate court's decision. Although in federal prosecutions there is such
a right, that right is grounded not in constitutional guarantees but specifically in the Criminal Justice
Act and federal rules. There being no right to counsel in state discretionary review, there can be no
challenge to the adequacy of counsel at that stage. The majority view, and in our judgment the
prudent one, is that, in the absence of a specific state statute or rule, the failure of counsel to advise
his client of the possibility of further review does not require suspension of the rules for an out-of-
time consideration of a party's petition for writ of certiorari.
¶24. Those members of the Court dissenting from this opinion would suspend the rules in order to
review an issue which was well considered by the Court of Appeals and as to which Harris does not
seek certiorari review. Specifically, they are concerned that Harris may have been improperly denied
the right to impeach a key witness during his trial. Only under the most extreme case should this
Court ever consider addressing issues never assigned within the petition for certiorari, if we address
the issues at all. It is only out of respect for their views that we write on that issue.
¶25. The issue herein surfaced due to an overnight revelation by Harris to his counsel of matters
which had been known to Harris for several days--that is, of a prior conversation with Elmer Durrell,
a State witness, wherein supposedly Durrell told Harris that the district attorney's office was
pressuring him to testify by threatening him with revocation of his probation. Harris also revealed to
counsel, for the first time, that he in fact had a taped recording of one of these conversations with
Durrell. Harris, completely aware of all this, had remained silent during the direct and cross-
examination of Durrell and never told defense counsel about these prior conversations with Durrell or
the existence of the tape recording. After Durrell completed his testimony and had been cross-
examined, he was excused by the court, without objection by the defendant. In addition to ruling that
some foundation for the impeachment should have been laid by Harris's counsel, the trial court also
held that Harris's failure to timely advise his counsel of the existence of the tape substantially caused
or contributed to this problem to such a degree that Harris could not then complain that his rights
were violated. This failure negates any argument that Harris was deprived of his rights.
¶26. In Government of Virgin Islands v. Martinez, 642 F. Supp. 1571 (D. Virgin Island 1986),
where Martinez failed to disclose facts concerning a confession made four days prior to trial to his
attorney, the court held, "[t]he bottom line is that the confession was material to Martinez's defense
solely because of his own untruthfulness. Under these facts, the established rule in this circuit is that
independent discovery of the [nondisclosed Brady material] . . . negates any argument that the
defendant was deprived of rights assured by the Constitution." Martinez, 642 F.Supp. at 1583.
¶27. Harris's counsel could not lay a foundation for impeachment of Durrell solely because of the
fault of Harris. Defense counsel Johnson admitted to the trial judge that he did not know about the
prior conversations until after his cross-examination of Durrell. Johnson stated, "Otherwise, I would
have cross-examined him on the stand about it." Nor did defense counsel reveal the tape pursuant to
discovery requirements when trial commenced again the following day. He simply waited and
attempted during Harris's direct testimony to elicit this information. Obviously concerned by the fact
that Durrell had been released as a witness and had left the courtroom, as well as by the fact that
Harris apparently had known this for days and failed to tell his own counsel, the trial judge noted that
the impeachment testimony could not be offered "--unless you wanted to call Mr. Durrell back -- and
you didn't tell me to keep him, so I didn't keep him." (emphasis added)
¶28. The Court of Appeals correctly held that the trial judge committed no error in excluding Harris's
impeachment testimony and the tape in view of his failure to lay a proper predicate and failure to
disclose the tape. Under Rule 613 of the Mississippi Rules of Evidence, impeachment no longer
requires the detailed prior examination of the party with a disclosure of the exact place, time, and
persons present on the occasion of a prior inconsistent statement. However, this still requires a
reasonable predicate to be laid and that extrinsic evidence be admitted for impeachment only where
"the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded
an opportunity to interrogate him thereon, or the interest of justice otherwise requires." M.R.E.
613(b).
¶29. The dissent would have us declare that the decision of the Court of Appeals is in conflict with
Marcum v. Mississippi Valley Gas Co., Inc., 587 So. 2d 223 (Miss. 1991) (overruled by Whigham
v. State, 611 So. 2d 988 (1992))and Whigham v. State, 611 So. 2d 988 (Miss. 1992). But under
both Marcum and Whigham there must be either some degree of predicate established or an
opportunity for the declarant to fully explain or deny the supposed inconsistent statement, if that
inconsistent statement is to be admitted in the first place. In Whigham, the Court stated that counsel
for the appellant "surely knew prior to trial about the statements defendant sought to introduce" and
that Whigham's counsel thus had the opportunity to lay a foundation for the introduction of evidence
of a prior inconsistent statement. Id. at 994. Yet, in contrast, Harris's counsel was unaware of
Durrell's statement and the tape at the time Durrell was on the stand; he thus had no opportunity to
lay a foundation. As the Comment to Rule 613 states, it is "to allow for such eventualities as the
witness becoming unavailable by the time the statement is discovered, [that] a measure of discretion
is conferred upon the judge." It would be inappropriate and unwise for us to speculate as to whether
Durrell could have been recalled as there is no evidence of any attempt to ascertain Durrell's
availability for recall.
¶30. Rather than engaging in speculation, we should examine exactly what the record does reveal. In
fact, the record reflects that Durrell had been released by the court at the conclusion of his testimony
on the previous day. The record does not reflect an objection by Harris to Durrell's release as a
witness. The case was recessed at that time until the following day. This is precisely a situation in
which the trial judge "has discretion of admitting a pretrial inconsistent statement of a witness into
evidence for which no predicate was laid of the witness, but only after the court has seen to it that the
witness is available for recall, and given an opportunity to deny." Whigham, 611 So. 2d at 994.
Here, the trial court released Durrell the previous day, without objection. In addition, because Harris
had withheld vital information from his attorney, the trial judge's exercise of his discretion was
proper. This is especially applicable where there was no compliance with discovery to the State. The
fault for this entire situation lies with Harris. We can see no reason why the State should be penalized
for Harris's negligence or, if it was such, his tactical decision not to advise his counsel of the
conversation or the tape.
¶31. In his brief before the Court of Appeals, Harris recasts the impeachment issue as one of a denial
of cross-examination. In fact, considering the merits of the issue under the facts of this case, Harris
was neither denied adequate cross-examination nor erroneously denied an opportunity to impeach the
State's confidential informant. The record reflects that, not only was counsel afforded opportunity for
complete cross-examination, counsel extensively and very effectively elicited from Durrell facts
concerning Durrell's arrest, conviction, probation, an additional warrant for his arrest, pressure from
the district attorney's office, the implication that his probation could be revoked if his testimony was
not favorable, and that the prosecutor might not prosecute if Durrell testified against Harris. Counsel
even accomplished the seemingly impossible. He succeeded in getting Durrell to confess to selling
cocaine. This was a very effective cross-examination, which clearly presented the issues of
involvement, motivation and bias of Durrell to the jury.
¶32. The decision of the Court of Appeals is affirmed.
¶33. AFFIRMED.
PRATHER, P.J., ROBERTS AND MILLS, JJ., CONCUR. DAN LEE, C.J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. PITTMAN, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
McRAE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED IN PART BY LEE, C.J. BANKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND IN PART BY LEE, C.J. AND
McRAE, J.
DAN LEE, CHIEF JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶34. I agree with the majority's analysis of a litigant's right to certiorari and the majority's finding that
a litigant has no constitutional right, under the United States Constitution, to counsel on discretionary
successive review of a state appellate court's decision. I also agree that this Court should not address
issues upon which the petitioner does not seek certiorari review. However, in the instant case, the
Court chooses to address the issue of evidentiary requirements, although not addressed by Harris on
petition for certiorari, and it is with this issue that I must part ways with today's majority. As to the
evidentiary requirements issue, I join in and adopt the reasoning found in Part I of Justice Banks'
dissent.
¶35. Accordingly, I respectfully concur in part and dissent in part.
PITTMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶36. I concur with the majority's ruling on Issue I. However, I do not join that portion of the opinion
analyzing the issue of whether Harris may have been improperly denied the right to impeach a key
witness during his trial. It is not necessary for us to speak to this issue, because we are denying the
out-of-time appeal.
¶37. Accordingly, I do not join that portion of the opinion.
McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶38. I join the majority in results only on Issue I with regard to an indigent's right to counsel for his
first appeal of right. However, I write separately to state that the right to counsel does not extend to
a discretionary appeal taken after an opinion has been rendered in an appeal of right to this Court.
Further, although we need not address the evidentiary rule since we are denying the out-of-time
appeal, I join Justice Banks on his Issue I.
¶39. The constitutional right to appeal an unfavorable decision by the lower court is satisfied by the
filing of a direct appeal to this Court. Because the Court of Appeals is an arm of this Court, the
constitutionally mandated right of appeal is satisfied regardless of whether this Court hears the case
or deflects it to the Court of Appeals for consideration. For that reason, I join the majority's Issue I in
results only. Moreover, in looking to our Constitution to ensure that a criminal defendant's rights are
protected, it is increasingly apparent that this and other decisions of this Court are presenting
roadblocks to those seeking to pursue further relief in either the state or federal courts. State
remedies must be exhausted before perfecting an appeal in the federal court system. Today's decision,
however, does not make clear that a decision by the Court of Appeals is a final decision from which
an appeal may be made in federal court or that the filing of a motion for post-conviction relief, a civil
matter, should not be considered a requisite part of exhausting one's state remedies before proceeding
in federal court.
¶40. Because of our statutes, an indigent criminal defendant has no right to appointed counsel when
seeking a rehearing or petitioning for certiorari from the Court of Appeals to this Court. To go
beyond the mandate of the Mississippi Constitution of 1890 and the "minimum federal requirements"
articulated in Ross v. Moffitt, 417 U.S. 600 (1974), by extending the right to counsel to discretionary
appeals only invites the review of all adverse criminal decisions emanating from the Court of
Appeals, regardless of appointed counsel's or the public defender's opinion of the merits of the case.
¶41. There is nothing in the Mississippi Constitution, art. 3, sec. 26 that requires, either expressly or
impliedly, the assistance of appointed counsel in a discretionary proceeding once an opinion has been
rendered in an appeal of right to this Court or the Court of Appeals. In Ross, the United States
Supreme Court, likewise, found nothing in the Equal Protection or Due Process Clauses of the
Fourteenth Amendment to the United States Constitution which mandated such representation. As
that Court stated:
The duty of the State under our cases is not to duplicate the legal arsenal that may be privately
retained by a criminal defendant in a continuing effort to reverse his conviction, but only to
assure the indigent defendant an adequate opportunity to present his claims fairly in the context
of the State's appellate process.
Ross, 417 U.S. at 616. Finding that North Carolina's system for review of Court of Appeals cases by
the State's Supreme Court provided an indigent defendant with an adequate opportunity to gain an
audience with the State's highest court, the United States Supreme Court noted that the critical issue
in North Carolina's determination of whether certiorari should be granted "as we perceive it, is not
whether there has been a 'correct adjudication of guilt' in every case," but "whether 'the subject
matter of the appeal has significant public interest,' whether 'the cause involves legal principles of
major significance to the jurisprudence of the State,' or whether the decision below is in probable
conflict with a decision of the Supreme Court." Ross, 471 U.S. at 615. Similarly, whether we would
have rendered an opinion different from that of the Appellate Court on an adjudication of guilt by the
trial court is not a guiding factor, rather "[s]uccessive review of a decision of the Court of Appeals by
the Supreme Court will ordinarily be granted only for the purpose of resolving substantial questions
of law of general significance." Rule 17(a), Mississippi Rules of Appellate Procedure (emphasis
added). Consistent with the certiorari review criteria noted with approval in Ross, M.R.A.P. 17(a)
further provides that:
Review will ordinarily be limited to:
(1) cases in which it appears that the Court of Appeals has rendered a decision which is in
conflict with a prior decision of the Court of Appeals or published Supreme Court decision;
(2) cases in which it appears that the Court of Appeals has not considered a controlling
constitutional provision;
(3) cases which should have been decided by the Supreme Court because:
(i) the statute or the rules require decision by the Supreme Court, or
(ii) they involve fundamental issues of broad public importance requiring determination by the
Supreme Court.
Notwithstanding the presence of one or more of these factors, the Supreme Court may decline
to grant a petition for certiorari for review of the decision of the Court of Appeals. The Court
may, in the absence of these factors, grant a writ of certiorari.
Consistent with Ross, therefore, it cannot be said that by not requiring appointed counsel to initiate
and represent an indigent defendant in a discretionary appeal, we are depriving that defendant the
opportunity for meaningful appellate review.
¶42. The majority finds that rehearing and certiorari proceedings are "critical stages . . . where a
substantial right may be affected" pursuant to Miss. Code Ann. § 99-15-15. In Ross, the Court,
distinguishing the need for counsel in the trial phase as distinguished from the appeals process, stated
it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking
not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made
by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect
him against being 'haled into court' by the State and stripped of his presumption of innocence,
but as a sword to upset the prior determination of guilt. This difference is significant for, while
no one would agree that the State may simply dispense with the trial stage of proceedings
without a criminal defendant's consent, it is clear that the State need not provide any appeal at
all. McKane v. Durston, 153 U.S. 684, 38 L. Ed. 867, 14 S. Ct. 913 (1894).
Ross, 417 U.S. at 610-611 (emphasis added). Moreover, the Ross Court indicated that "[t]he fact
that an appeal has been provided does not automatically mean that a State then acts unfairly by
refusing to provide counsel to indigent defendants at every stage of the way." Id. at 611 (emphasis in
original). By the same token, once an appeal has been heard by this Court or the Court of Appeals,
since we have a deflective court system, the mandate to provide counsel to indigent defendants
ceases. However, counsel, in his discretion, may elect to continue representation of his client by filing
a petition for rehearing or certiorari. Whether to so proceed should be within the attorney's discretion
rather than encouraging the court system to become further clogged by endless appeals.
¶43. In State v. Barnes, 517 S.W.2d 155 (Mo. 1974), where the Missouri Supreme Court found that
it was not necessary to appoint a new attorney to represent an indigent client to assist in the pursuit
of a motion for rehearing in the appellate court system, it was stated that:
on a criminal appeal a motion for rehearing may be used, in the language of the Ross [v.
Moffitt] case, as a "sword to upset [a] prior determination of guilt," but in practice it serves no
such function. Statistical inquiry among the three districts of the Court of Appeals reveals that
during the period roughly corresponding with the last reporting period, July 1, 1973, to June
30, 1974, some 298 criminal opinions were filed. Motions for rehearing or alternative motions
for rehearing for transfer to the Supreme Court were filed in 71 of these 298 cases. Only two
such motions were sustained. It is therefore clear, at least to us, that on a criminal appeal a
motion for rehearing is merely an exhaustion device to seek discretionary review in the highest
court of this state.
Barnes, 517 S.W. 2d at 169. Our two-tier appellate court system is still in its infancy. However,
particularly where discretionary appeals are concerned, I suspect that we will find in practice that it,
too, does not serve as the proverbial "sword to upset [a] prior determination of guilt."
¶44. Neither our Rules of Appellate Procedure nor our Rules of Professional Conduct require an
attorney to file a discretionary appeal. Rule 1.4 of the Rules of Professional Conduct require an
attorney only to keep his client informed, to respond to his requests for information and to explain
matters to the extent necessary to help him make informed decisions. At best, that obligates the
attorney to inform his client of a court's decision on his appeal and the ramifications of that decision.
For these reasons, I join the Issue I of the majority opinion in results only and Issue I of Justice
Banks' opinion.
LEE, C.J., JOINS THIS OPINION IN PART.
BANKS, JUSTICE, DISSENTING:
¶45. Because I disagree with the majority opinion in both its application of the evidentiary
requirements of prior inconsistent statements as well as its conclusions about the duties of appointed
counsel, I respectfully dissent.
I.
¶46. During the defense case, Harris' attorney sought to impeach the testimony of Elmer Durrell by
introducing evidence of a prior statement in which he had indicated that the prosecutor had
threatened to revoke his probation if Durrell did not provide testimony in this case inculpating Harris.
Because Harris' attorney was unaware of this statement while Durrell was testifying as a witness for
the State, he was of course unable to introduce the statement or elicit a specific predicate in support
of its later introduction during that cross-examination. The cross-examination of Durrell did,
however, include the following exchange:
Q. Well, why you come in here today and testify under oath that you sold cocaine?
A. Because that's what I, you know--they subpoenaed me here as a witness. They wanted me to
tell the truth, so I'm telling you.
Q. You are on probation, aren't you?
A. Yes, sir.
Q. Anybody forced you to give this testimony?
A. No, sir.
Q. When was the first time that you talked to the D.A.'s office about this testimony?
A. They subpoenaed me--what's today? Monday? I got a subpoena Thursday or Wednesday of
last week. I'm not sure.
Q. When did you talk to them for the first time?
A. Thursday.
Q. You talked to them Thursday?
A. (Nodded head up and down).
Q. Did they tell you they had a warrant for your arrest?
A. No, sir.
Q. Did you know that there was a warrant for your arrest?
A. No, sir.
Q. Did anybody talk to you about having your probation revoked?
A. No, sir.
Q. So they wanted you to come in here and testify--did they know that you were going to say
that you sold cocaine?
A. What do you mean, did they know?
Q. Did you tell them that you had sold cocaine earlier that day?
A. They asked me what had happened.
Q. Did you tell them you sold cocaine earlier that day?
A. Uh-huh (Indicating yes).
Q. Did they tell you they were going to prosecute you for that?
A. No, sir.
Q. So they told you if you'd come to testify, they weren't going to prosecute you for selling
cocaine?
A. Nothing was ever said about that.
Q. You told them you sold cocaine that day?
A. Back in '90. Yeah.
Q. Well, did you understand there was a time limit where they couldn't prosecute you anymore?
A. No, sir.
¶47. Upon learning of Durrell's prior inconsistent statement that he had in fact been coerced into
implicating Harris, Harris' attorney promptly attempted to get that statement introduced extrinsically,
during his direct examination of Harris. In response to the State's objection, Harris' lawyer explained
that Harris had just informed him of the prior inconsistent statement. Harris had also just produced to
his attorney a tape recording of this conversation. Harris' lawyer wished to examine Harris about this
conversation "without getting into the tape." He explained that since he had not known about the
conversation or the tape at the time of his cross-examination of Durrell, he could not inquire about
the conversation at that time.
¶48. The trial court ruled that Harris' testimony concerning the conversation was inadmissible
hearsay. The court found that the testimony might have been admissible for impeachment purposes,
had the proper foundation been laid. Because Durrell had not been specifically asked whether he had
told Harris that he was being pressured by the district attorney's office to testify, the impeachment
testimony was held inadmissible. The trial court also ruled the tape inadmissible, apparently on the
same basis as its exclusion of Harris' testimony concerning the conversation.
¶49. In contrast with the majority opinion, I agree with Harris that his rights to confront, cross-
examine, and impeach witnesses against him were violated by the trial court's refusal to allow him to
testify about his conversation with Durrell. Because the State's case against him was so heavily
dependent on Durrell's unimpeached testimony that linked him with the cocaine, I would hold the trial
court's refusal to allow Harris to impeach Durrell by disclosing Durrell's motivation for testifying to
be reversible error.
¶50. The use of a witness' prior statements for impeachment is governed by M.R.E. 613, which
provides in part:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a
prior inconsistent statement by a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is afforded an opportunity to
interrogate him thereon, or the interests of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Prior to the adoption of the Mississippi Rules of Evidence, Mississippi courts adhered to the
formalism of The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), requiring that a detailed
foundation be laid before evidence of a contrary out-of-court statement could be admitted. A witness
had to be asked "whether or not on a specific date, at a specific place and in the presence of specific
persons he made a particular statement." Whigham v. State, 611 So. 2d 988, 994 (Miss. 1992)
(citing pre-Rules case Harrison v. State, 534 So. 2d 175, 179 (Miss. 1988)).
¶51. However, the traditional foundation requirements have been modified by the modern rule of
evidence. Marcum v. Mississippi Valley Gas Co., 587 So. 2d 223, 226 (Miss. 1991).(1) The new rule
gives "substantial latitude [to] an attorney seeking to impeach with prior inconsistent statements." Id.
at 227. As the Comment to Rule 613 states:
Subsection (b) preserves the foundation requirement in The Queen's Case with some
modifications when impeachment is by extrinsic evidence. The traditional insistence that the
attention of the witness be directed to the statement on cross-examination is relaxed in favor of
simply providing the witness an opportunity to explain and the opposite party the opportunity
to examine the statement, with no specification of any particular time or sequence.
...
In order to allow for such eventualities as the witness becoming unavailable by the time the
statement is discovered, a measure of discretion is conferred upon the judge.
¶52. In Marcum, this Court found reversible error in a trial court's exclusion of a pretrial inconsistent
statement by one of the defendant/appellee's witnesses. We rejected the argument that the exclusion
had been proper due to the plaintiff/appellant's failure to lay a foundation for extrinsic evidence,
specifically, to cross-examine the witness concerning the conversation in which the statement
allegedly occurred. We held that the plaintiff/appellant's failure to raise the subject on cross-
examination of the witness should not have precluded the appellant from raising the apparent
inconsistency by way of extrinsic evidence. Adopting authority analyzing the identical Federal Rule of
Evidence 613(b), we stated that "the prior [inconsistent] statement may be brought out by a second
witness without prior inquiry of the witness who made it. It is only necessary that the impeached
party have an opportunity to explain or deny the statement at some point during the trial." Marcum,
587 So. 2d at 226.
¶53. More recently, in Whigham v. State, 611 So. 2d 988 (Miss. 1992), we found no error in a trial
court's exclusion of testimony sought to be introduced by the defendant for the purpose of
impeaching one of the State's witnesses. The defendant wished to have one of his witnesses testify
about pretrial inconsistent statements made by one of the State's witnesses. In that opinion, we
upheld the trial court's exclusion of the testimony, noting that the State's witness was given no
opportunity to explain or deny the pretrial statements, not having been asked about them while on the
stand, and having already been excused. We noted that the defense counsel had surely known about
the statements prior to trial. Whigham, 611 So. 2d at 994. We nevertheless expressly reserved the
possibility of situations in which a prior inconsistent statement should be admitted notwithstanding
the fact that the proper foundation had not been laid:
There may be instances in which a pretrial inconsistent statement of a witness will not be known
until after the witness has left the stand. In such an instance a trial judge in the interest of justice
may permit the introduction of such statement, but only after making sure that the witness is
available for recall and is given an opportunity to explain or deny the statement.
Id.
¶54. In Whigham, the defendant sought to introduce a prior inconsistent statement of a witness who
had been excused. Significantly, we noted in Whigham that counsel for the appellant "surely knew
prior to trial about the statements" defendant sought to introduce. Thus, counsel to Whigham had the
opportunity to lay a foundation for the introduction of evidence of a prior inconsistent statement. In
contrast, in this case Harris' counsel was unaware of both the prior inconsistent statement or the tape
of that statement at the time Durrell was on the stand; he thus had no opportunity to lay a foundation.
This fits precisely the exception to ordinary foundation requirements that is described in Whigham,
in which the trial court "has the discretion of admitting a pretrial inconsistent statement of a witness
into evidence for which no predicate was laid of the witness, but only after the court has seen to it
that the witness is available for recall, and given an opportunity to deny." Whigham, 611 So. 2d at
994.
¶55. In short, Whigham does not overrule that aspect of Marcum that applies to Harris' case. Under
Marcum, Durrell's testimony could have been "brought out by a second witness without prior
inquiry of the witness who made it," Marcum, 587 So. 2d at 226, because Durrell may well "have
[had] an opportunity to explain or deny the statement at some point during the trial." Id. (emphasis
added). Consequently, I would hold that the trial court erred in excluding Harris' testimony
concerning Durrell's pretrial statements on the grounds that no foundation had been laid. Under the
mandate of both Marcum and Whigham, Durrell could have been recalled and thus provided with an
opportunity to explain or deny the impeaching statements, which could then have been admitted.(2)
¶56. There is no evidence in the record that the trial court made any attempt to ascertain Durrell's
availability for recall prior to excluding his prior inconsistent statement. Indeed, the record suggests
only that Harris' counsel consented to Durrell's release as a witness before he knew about the prior
inconsistent statement. I cannot, as the majority has, construe this void in the record as if Harris'
counsel had the opportunity to lay the foundation, but nevertheless opted against it. Nor do I
construe it to mean that Durrell was unavailable for recall. I would thus hold that the exclusion of
Harris' testimony was an abuse of the discretion by trial court. See Tillis v. State, 661 So. 2d 1139,
1142 (this Court applies abuse of discretion standard in reviewing trial court ruling on admissibility of
evidence).
¶57. Given the critical significance of Durrell's testimony in the prosecution of Harris, the principle of
fundamental fairness entitled Harris to an opportunity to impeach Durrell with evidence that his
inculpatory testimony was the product of coercion by the district attorney. See Hill v. State, 512 So.
2d 883, 885 (Miss. 1987) (holding that trial court should have permitted further inquiry into witness'
expectations of lenient treatment from prosecutor in exchange for his testimony where state relied
heavily on witness' testimony); Fuselier v. State, 468 So. 2d 45, 51 (Miss. 1985) (defense entitled to
present evidence of agreement to jury where such would tend to impeach or show bias in the
testimony of the witness); Barnes v. State, 460 So. 2d 126 (Miss. 1985) (defense is entitled to
impeach or show bias in the testimony of a witness). I would therefore find the trial court's exclusion
of Harris' testimony to be reversible error.
II.
¶58. I also disagree with the majority opinion in its analysis of the responsibilities of counsel
appointed to represent the indigent on appeal, and would hold that court-appointed counsel are
required to notify their clients about the status of their appeals and the possibility of additional action.
¶59. On March 21, 1995, the Court of Appeals issued a unanimous opinion reversing and remanding
Harris' conviction and sentence on the grounds that the trial court had improperly denied Harris an
opportunity to impeach Elmer Durrell. On March 22, 1995, the Court of Appeals, on its own motion,
entered an order withdrawing the opinion and judgment of the previous day and further stating that
an opinion and judgment would be entered at a later date.(3) On May 16, 1995, the Court of Appeals
issued a unanimous decision affirming Harris' conviction and sentence, finding that there had been no
abuse of discretion in the trial court's unwillingness to admit the evidence of Durrell's prior
inconsistent statement. Harris' counsel did not file a petition for rehearing.
¶60. By letter received by this Court Clerk's office on June 6, 1995, Harris, who was incarcerated,
inquired as to the status of his case. He stated that he had learned from a newspaper article that a
decision in his favor had been withdrawn, and that a new opinion would be entered at a later date.
Harris requested a copy of all judgments in his case. The court sent him a letter stating that his case
had been affirmed on May 16, 1995.
¶61. On June 22, 1995, Harris filed a pro se motion for suspension of rules, stating that his lawyer
had not informed him of the Court of Appeals' decision, and that had he known of the decision, he
would have timely appealed to this Court. Harris requested that, pursuant to M.R.A.P. 2(c), this
Court suspend the rules to give him "a fair opportunity to petition the court for a wrong done to
him."
¶62. By order dated July 26, 1995, this Court assigned Harris' motion to the Court of Appeals,
finding that the motion "appears to be in the nature of a request for leave to file a petition for
rehearing out of time," and that the Court of Appeals retained jurisdiction of the matter. On
September 22, 1995, Harris filed a pro se motion to show cause, headed in the Court of Appeals,
which stated that his lawyer "appears to have relinquished his duty to represent Mr. Harris any
further in this matter." Harris also requested that the Court of Appeals identify its reasoning and
otherwise show cause for its actions. On October 31, 1995, the Court of Appeals issued an order
finding that Harris' motion to show cause should be treated as a motion for permission to file an out-
of-time petition for rehearing, and, as such, denied it, citing M.R.A.P. 40(a). A second order that day
dismissed as moot Harris' motion to suspend the rules. On December 8, 1995, Harris filed his pro se
petition for a writ of certiorari.
¶63. Absent the filing of a petition for rehearing, this Court lacks jurisdiction to entertain a petition
for certiorari to review the Court of Appeals' judgment. See M.R.A.P. 17(b).(4) Thus, if appellant's
counsel does not file a petition for rehearing, the appellant may be precluded from seeking review by
this Court through a petition for writ of certiorari, even a petition filed pro se. A fortiori, if an
appellant's counsel fails to inform his client that his intermediate appeal has been disposed of, that
client will quite obviously miss the opportunity to pursue any further review that he may have
independently undertaken, given the fourteen-day time period during which additional appeals are
allowed.(5)
¶64. Before I address whether the law in the State requires appointed counsel to continue their
representation of indigent defendants past the first tier of review, I must first note that I strongly
believe that advising a client of the disposition of his first appeal of right is a duty that attends an
attorney's competent representation of him at that level of appeal. Therefore, I firmly believe that the
Sixth Amendment right to counsel and his effective assistance comprehends counsel informing his
client that his cause was lost. Even if an indigent defendant has no federal constitutional right to seek
further review of his claims, his federal and state constitutional right to effective assistance of counsel
during the pursuit of that first appeal includes being informed of its disposition, just as it included
being informed of all other significant events in the course of the proceedings against him. Strickland
v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674 (1984) (defense counsel has the "particular
duties to consult with the defendant on important decisions and to keep the defendant informed of
important developments in the course of the prosecution"); Douglas v. California, 372 U.S. 387(1963) (extending Sixth Amendment right to counsel and effective assistance of counsel to indigent
defendants on their first appeal of right).
¶65. I also believe, contrary to the majority, that the law governing our system of appointment of
counsel entitles indigents to appointed counsel in the pursuit of second-tier review, by way of
petitions for rehearing or petitions for certiorari. The procedural history of Harris' case illustrates
how inaction on the part of appellate counsel following a Court of Appeals decision can easily result
in the forfeiture of not only an appellant's right to further review, but an appellant's right to apply for
further review. Such consequences violate the appellant's rights to effective assistance of counsel and
due process under state law, and is entirely inconsistent with the responsibility of law practice.
¶66. The right to counsel in criminal cases is guaranteed by Art. 3, § 26 of the Mississippi
Constitution, which provides in part that "[i]n all criminal prosecutions the accused shall have a right
to be heard by himself or counsel, or both." See also Watson v. State, 196 So. 2d 893, 894 (Miss.
1967).(6) The accused is entitled to counsel not only at trial, but also on appeal from a conviction on
the merits. Jones v. State, 355 So. 2d 89, 91 (Miss. 1978). If the accused is indigent and unable to
afford an attorney, then he is entitled to a court-appointed attorney at trial and on appeal. Id.(7)
¶67. Appointment of counsel for indigents is governed by Miss. Code Ann. § 99-15-15 (1972), which
provides:
When any person shall be charged with a felony, misdemeanor punishable by confinement for
ninety (90) days, or more, or commission of an act of delinquency, the court or the judge in
vacation, being satisfied that such person in an indigent person and is unable to employ counsel,
may, in the discretion of the court, appoint counsel to defend him. (8)
Such appointed counsel shall have free access to the accused who shall have process to compel
the attendance of witnesses in his favor.
The accused shall have such representation available at every critical stage of the proceeding
against him where a substantial right may be affected.
See also Miss. Code Ann. § 99-15-17 (1972) (statute setting forth the amount of compensation
allowed to appointed counsel for trial and appellate work); Wilson v. State, 574 So. 2d 1338 (Miss.
1990) (upholding constitutionality of the limits on compensation set by § 99-15-17).
¶68. The right to counsel on appeal is further secured by M.R.A.P. 6(b) which governs the
appointment of counsel in criminal appeals. Under Rule 6(b)(1), appointed trial counsel is required to
continue as the defendant's counsel on appeal, unless relieved by order of this Court, the Court of
Appeals, or the trial court, prior to perfection of the appeal. M.R.A.P. 6(b)(2) provides that an
appellant without counsel on appeal, who is entitled to counsel on the basis of his indigence, and who
has not waived the appointment of counsel, will be appointed counsel by the trial court upon request
of this Court or the Court of Appeals.
¶69. M.R.A.P. 6 does not address the question of whether appointed counsel is to continue
representation on direct appeal after affirmance of a conviction by the Court of Appeals--that is,
whether there is a right to counsel in second-tier or discretionary appellate review. Since second-tier
appellate review did not exist prior to the recent establishment of the Court of Appeals, this Court
has not yet addressed this question.
¶70. The United States Supreme Court has addressed this question as it pertains to the federal
constitutional right to counsel, and concluded in Ross v. Moffitt , 417 U.S. 600 (1974), that while the
Fourteenth Amendment requires that indigent defendants be provided with appointed counsel on the
first appeal of right it does not require that states provide appointed counsel to indigent defendants
seeking discretionary, second-tier appellate review.(9) The Court in Ross noted that it was
fortified in this conclusion by [their] understanding of the function served by discretionary
review in the North Carolina Supreme Court. The critical issue in that court, as [they] perceive
it, is not whether there has been "a correct adjudication of guilty" in every individual case . . .
but rather whether "the subject matter of the appeal has significant public interest," whether
"the case involves legal principles of major significant to the jurisprudence of the State," or
whether the decision below is in probable conflict with a decision of the Supreme Court.
Ross, 417 U.S. at 61 (citations omitted).
¶71. As this Court has previously noted, we are not limited to "minimum federal requirements . . .
and may construe our own Constitution and laws to afford greater protections for an accused."
Killingsworth v. State, 490 So. 2d 849 (Miss. 1986). While Ross v. Moffitt may hold that an
appellant has no federal constitutional right to appointed counsel for the pursuit of a discretionary
review, I would find that the right to counsel secured by Article 3, Section 26 of our State
constitution includes the right to assistance of counsel in seeking rehearing in the Court of Appeals,
as well as seeking a writ of certiorari in this Court.(10)
¶72. I would also find that such assistance of counsel is further mandated by Miss. Code Ann. § 99-
15-15, which provides that the indigent "shall have . . . representation available at every critical stage
of the proceeding against him where a substantial right may be affected." Review by this Court,
although discretionary, is without question a stage of a criminal defendant's case at which a
substantial right may be affected. A decision by the Court of Appeals or this Court may well be
reversed on petition for rehearing; a decision by the Court of Appeals may be reversed by this Court
on review by writ of certiorari. Indeed, our Rules of Appellate Procedure prescribe the scope of
review in our court as significantly broader than the North Carolina scheme that prompted the United
States Supreme Court's decision in Ross v. Moffitt: according to our Rules of Appellate Procedure,
our review is proper not only where the cases pose issues of broad public importance, but is also
proper in cases in which the Court of Appeals has rendered its decision in conflict with prior
decisions, and cases in which the Court of Appeals has not considered a controlling constitutional
provision. Additionally, we may grant certiorari for any other reason, including mere error correction.
M.R.A.P. 17(a). In light of the substantial role of this Court's review in adjudicating and
administering our criminal justice system, I would find that rehearing and certiorari proceedings are
"critical stages . . . where a substantial right may be affected" and thus are attended by a right to
counsel in the pursuit thereof.
¶73. Additionally, I note the United States Supreme Court's decision in Evitts v. Lucey, 469 U.S. 387(1985), in which it held that where a state has created appellate courts as "an integral part of the . . .
system for finally adjudicating the guilt or innocence of a defendant . . . the procedures used in
deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses
of the Constitution." 469 U.S. at 392 (citing Griffin v. Illinois, 351 U.S. at 18). As I have previously
discussed, discretionary review through rehearing or certiorari is an "integral part" of our appellate
system in that it exists to correct errors, as well as to enunciate and reconcile the criminal law. I
would thus find that application for rehearing or certiorari cannot, consistent with the concept of due
process enunciated in Evitts v. Lucy, be denied to appellants who cannot afford to retain further
counsel.
¶74. Moreover, I discern an important distinction between actual review on rehearing or by writ of
certiorari, and the application for such review. Notwithstanding the discretionary aspect of our grant
of certiorari review, all litigants are entitled to seek discretionary review through a petition for
rehearing or for writ of certiorari. Thus, an application for rehearing or for certiorari is a right that all
litigants automatically enjoy. Because the application for rehearing or for certiorari is a substantial
right that our statutory scheme confers upon litigants, it ought not to be limited to those appellants
able to retain counsel.
¶75. The Supreme Court of Colorado has recognized that application for discretionary review is a
matter of right, and thus carries with it a right to counsel. In holding that an appellant was entitled to
effective assistance of counsel in filing a petition for writ of certiorari after affirmance by an
intermediate appellate court, the Supreme Court of Colorado stated:
It has long been recognized that this court in the exercise of its appellate jurisdiction has
absolute discretion to grant or deny a petition for writ of certiorari to review a final judgment of
a lower tribunal. We have also recognized that under our rules of appellate procedure, as
authorized by the grant of appellate jurisdiction contained in article VI, sec. 2(2) of the
Colorado Constitution, a petition requesting this court to exercise its appellate jurisdiction to
review a lower court judgment is an application of right. Thus Valdez had a right to file his
application for certiorari review by this court of the judgment of the Court of Appeals. He
therefore had a right to obtain counsel and to rely upon such counsel's skill for the purpose of
preparing and filing that application.
People v. Valdez, 789 P.2d 406, 408 (citations omitted). See also Colorado v. Williams, 736 P.2d
1229 (Colo. Ct. App. 1986) (review by petition for writ of certiorari to the Supreme Court of
Colorado is application of right, not discretion; thus, defendant had right under state constitution to
effective assistance of counsel in the filing of a petition for rehearing in the Court of Appeals, which
is prerequisite for application for writ of certiorari).
¶76. A number of other jurisdictions have deployed various authorities in noting that an appellant's
right to file a petition for discretionary review may be jeopardized or even forfeited if appellate
counsel does not maintain an active role of representation after an affirmance by an intermediate
appellate court. In Hutchins v. State, 504 S.W.2d 758 (Tenn. 1974), the Supreme Court of
Tennessee reviewed in post-conviction proceedings a claim of ineffective assistance of counsel,
where the appellant's court-appointed attorney had not filed a petition for writ of certiorari to the
state supreme court after affirmance of the direct appeal by the Court of Criminal Appeals. The court
stated:
Under the facts in this case, the defendant's rights were violated at that stage of the proceedings
at which his court-appointed attorney should have advised him of his additional avenues of
appeal, and of the action the lawyer planned to take in the case. The attorney apparently
abandoned his client without advice of any kind. Under these facts, the defendant was
completely cut off from further appeal. Because of his attorney's action he was even denied to
opportunity to file a pro se petition for certiorari before the statutory ninety days expired for
filing the petition. His deprivation was just as complete as if he were required to pay for that
which he could not afford, such as a filing fee or a transcript. Burns v. Ohio, 360 U.S. 252[1959]; Griffin v. Illinois, 351 U.S. 12 [1956].
504 S.W.2d at 758.
¶77. Likewise, in Ex Parte Jarrett, 891 S.W.2d 935, 939 (Tex. Crim. App. 1994), the court found
that while an appellant had no right to review by the Court of Criminal Appeals, the "appellant's right
to file a petition for discretionary review may not be abridged by the actions of counsel." Therefore,
the court held, pursuant to the state's rules of appellate procedure, counsel had a duty to notify the
appellant of the actions of the appellate court; to advise the appellant of the effect of the court's
opinion; to advise appellant of the possibility of review by certiorari; to express his professional
judgment as to possible grounds for review and their merit; and to delineate advantages and
disadvantages of further review. The court stated its rationale:
[F]ailure to notify the appellant of the right to file a petition for discretionary review prejudices
the rights of the appellant and constitutes a violation of the constitutional right to effective
assistance of counsel. Appellant has no right to review, but Tex. R. App. P. 200 presumes
appellant has a right to prepare and file a petition for discretionary review . . . . [W]e have held
that due to the very fact that this provision exists there is a right to make a request to this
Court. Therefore, if this right is abridged or denied through the misfeasance or nonfeasance of
counsel there is an abridgment of the Sixth and Fourteenth Amendments through which the
State benefits and the individual's rights are constitutionally curtailed.
891 S.W.2d at 956. See also State v. Williams, 529 S.W.2d 714 (Tenn.) (holding that Hutchins had
not been overruled by Ross v. Moffitt); Pinkston v. State, 668 S.W.2d 676 (Tenn.Crim.App. 1984)
(unilateral termination of a direct appeal following first-tier review entitled appellant to relief in form
of delayed appeal, despite Wainwright v. Torna, since the Supreme Court of Tennessee had adopted
"a different path as a matter of state law"); Moultie v. State, 542 S.W.2d 835 (Tenn.Crim.App.
1976) (noting that the lawyer's duty under ABA Standards to keep his client informed of the
developments in the case is vital when the defense progresses to the point of actual termination).
¶78. Given the facts of this case, I am particularly concerned about the distinct probability that an
appellant's right to discretionary review will be forfeited unless counsel is required to actively
continue his representation after losing a first appeal. Even assuming that, unlike Harris, an appellant
has been timely advised of the Court of Appeals' decision, and has also been advised of the option of
filing for rehearing, he is unlikely to possess the knowledge necessary to identify and present any
issues appropriate for rehearing without the assistance of counsel. It would be highly unrealistic to
expect the appellant to prepare such a petition within the fourteen-day period, particularly if the
appellant were incarcerated. In short, an unrepresented appellant is simply not in a position to
preserve his right to seek discretionary review during the fourteen-day period in which petitions are
ordinarily received. Absent counsel, he is highly likely to forfeit the opportunity to file a petition for
rehearing, and with it, the opportunity to file a petition for certiorari.
¶79. It is counsel's obligation to ensure that his client's right to appeal is preserved. Holland v. State,
656 So. 2d 1192, 1198 (Miss. 1995); Triplett v. State, 579 So. 2d 555 (Miss. 1991); Myers v.
Mississippi State Bar, 480 So. 2d 1080 (Miss. 1985), cert. denied, 479 U.S. 813 (1986). In Triplett,
a retained attorney had failed to perfect his client's appeal for lack of payment and the attorney failed
to request permission to withdraw from the case. We found that because the attorney had failed to
protect his client's right to appeal, the appellant had been denied effective assistance of counsel:
Having contracted to pursue an appeal, it is incumbent upon an attorney to fulfill those
obligations. Cf. Allison v. State, 436 So. 2d 792 (Miss. 1983). If grounds for withdrawal or
termination exist, the attorney must seek the court's permission to properly withdraw from
representation, but incumbent upon the attorney is the duty to take all necessary steps to
protect the defendant's right of appeal.
It is true that subsequent to trial and conviction of their clients, trial counsel may find
themselves on the horn of dilemma, unsure whether or not to appeal. But the answer lies in the
cloak of responsibility adorned by every criminal trial attorney when employment is accepted or
appointment is made by the court. Unilateral withdrawal is manifestly not the solution. The
problems of withdrawal may be more difficult than the British Army from Dunkirk, but the
requirements prerequisite to termination of attorney/client relationship remain paramount. Our
rules and case law mandate written court permission to withdraw from representation prior to
completion of the contract. Nothing less will suffice.
579 So. 2d at 558.(11)
¶80. In Holland v. State, 656 So. 2d 1192 (Miss. 1995), we found that an attorney who neglected to
renew a motion for directed verdict, request peremptory instruction, or file j.n.o.v. motion, waived
for appeal the sufficiency of evidence issue. We held that in so doing, the attorney failed "to preserve
defendant's entire line of defense on appeal," thus depriving defendant "of any meaningful appeal."
We held this to be a denial of the Sixth Amendment right to effective assistance of counsel, citing
Triplett for the proposition that "it is incumbent upon the attorney to take all necessary steps to
protect the defendant's right of appeal." 656 So. 2d at 1198 (citing Triplett, 579 So. 2d 555, 558).
¶81. Our statutory procedures governing withdrawal of counsel further illuminate our concern that
litigants not be unwittingly thwarted in their attempts to assert their rights. M.R.A.P. 46(c) provides
as follows:
(c) Withdrawal. An attorney who appears before the Supreme Court or the Court of Appeals
in an appeal or other proceeding may withdraw from the representation only with the approval
of the appropriate court. If an attorney desires to withdraw, the attorney shall file a motion
giving the attorney's reasons for desiring to withdraw and requesting approval of the
appropriate court. Such motion shall be served upon the attorney's client and upon all parties.
The motion shall be accompanied by an appearance form of substitute counsel or a signed
statement by the client indicating that the client agrees to proceed pro se, or shall explain why
neither can be obtained.
¶82. Thus, I interpret the combined force of our statutory and decisional law to require appointed
counsel to preserve their clients' rights to pursue appeals and rehearings. I find this to be the fairer
and better reasoned approach to this gap in our positive law. I therefore dissent from the majority's
analysis in this regard.
CONCLUSION
¶83. In conclusion, not only would I find Leo Harris' right to counsel to extend beyond the Court of
Appeals' decision on his first appeal, I reiterate my opinion that their judgment was incorrect. Leo
Harris was denied the crucial opportunity to impeach Elmer Durrell with evidence of a pretrial
statement by Durrell that indicated that his incriminating testimony was coerced by the district
attorney. Because I would find this limitation of Harris' defense to be reversible error, I respectfully
dissent from the majority's affirmance of Harris' conviction and sentence.
SULLIVAN, P.J., JOINS THIS OPINION. LEE, C.J., AND McRAE, J., JOIN THIS
OPINION IN PART.
1. In Marcum, we noted that numerous authorities have observed this modification of traditional
foundation requirements. See Weinstein, ¶ 613[01] to [05]; S. Saltzburg & K. Redden, Federal Rules
of Evidence Manual, 424-31(3d ed. 1982); McCormick on Evidence, § 34 (3d ed. 1984). Marcum,
587 So. 2d at 226.
2. Even had Durrell not been available for recall, Harris' testimony concerning Durrell's pretrial
statements could have been admitted within the discretion of the judge. As the Comment to Rule 613
notes, "[i]n order to allow for such eventualities as the witness becoming unavailable by the time the
statement is discovered, a measure of discretion is conferred upon the judge."
3. In a letter to this Court's Clerk dated March 29, 1995, Harris' lawyer stated that pursuant to the
Clerk's instructions, he had destroyed the March 21st opinion mailed to him. Thus, Harris' counsel
was plainly aware of the Court of Appeals' withdrawal of the first opinion and entry of the second
opinion.
4. Pursuant to M.R.A.P. 2(c), the requirements of any of the Mississippi Rules of Appellate
Procedure may be suspended for good cause.
5. I recognize that Harris' counsel may have declined to seek further review through a petition for
rehearing, and a petition for writ of certiorari based on his opinion that grounds for rehearing and
certiorari were lacking. Such decisions are a matter of professional judgment. I have no wish to single
out for reproach the attorney in this case, especially since neither the Mississippi Rules of Appellate
Procedure nor the Mississippi Code sections concerning appointment of counsel indicate whether
appointed counsel is required to file a petition for rehearing, and a petition for certiorari if the
appellant so requests.
6. Of course, the right to appointed counsel at trial is also guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution. Gideon v. Wainwright, 372 U.S. 335 (1963).
7. The United States Supreme Court has long held that there is no constitutional right to an appeal
from a criminal conviction. McKane v. Durston, 153 U.S. 684 (1894). However, if a state has
created appellate courts as "an integral part of the . . . system for finally adjudicating the guilt or
innocence of a defendant," the procedures used in deciding appeals must comport with the
requirements of the Due Process and Equal Protection clauses. Evitts v. Lucey, 469 U.S. 387, 392
(1985); Griffin v. Illinois, 351 U.S. 12, 18 (1956).
8. The discretion of the trial court to decline to appoint counsel to represent an indigent defendant
charged with a noncapital felony was eliminated by Gideon v. Wainwright, 372 U.S. 335 (1964). See
Conn v. State, 251 Miss. 488, 170 So. 2d 20 (1964).
9. The United States Supreme Court has relied on Ross v. Moffitt in holding that where there is no
right to counsel, there can be no right to effective assistance of counsel, and thus no violation of such
right. See Wainwright v. Torna, 455 U.S. 586 (1982) (since, under Ross v. Moffitt, appellant had no
constitutional right to counsel on a discretionary appeal, he was not deprived of effective assistance
of counsel by his retained counsel's failure to timely file an application for certiorari in the Supreme
Court of Florida.)
10. In Neal v. State, 422 So. 2d 747 (Miss. 1982), we held that an appellant's right to counsel exists
only during the course of his direct appeal, and thus an indigent prisoner seeking post-conviction
relief was not entitled to appointed counsel. We adhere to that holding today.
11. We also held in Triplett that where a defendant becomes indigent, an attorney must advise him
clearly of his right to file a pauper's affidavit and proceed in forma pauperis.