                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2013-CT-00305-SCT

MICHAEL DEON TAYLOR a/k/a MICHAEL D.
TAYLOR a/k/a MICHAEL TAYLOR

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           09/21/2012
TRIAL JUDGE:                                HON. WILLIAM E. CHAPMAN, III
TRIAL COURT ATTORNEYS:                      THOMAS R. MAYFIELD
                                            GEORGE MCDOWELL YODER, III
                                            CATOUCHE BODY
COURT FROM WHICH APPEALED:                  MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     DAMON RAMON STEVENSON
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:                          MICHAEL GUEST
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND REMANDED-07/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Michael Deon Taylor was convicted in 2012 of possessing stolen property. He was

sentenced as a habitual offender to ten years in prison. Taylor testified in his own defense at

trial. During cross-examination, the State questioned Taylor extensively about his numerous

past felony convictions without objection from defense counsel. We find that defense

counsel’s failure to object to the expansive inquiry into Taylor’s prior convictions constituted
ineffective assistance of counsel apparent from the record before us on direct appeal. We

reverse Taylor’s conviction and remand for a new trial.

                         FACTS AND PROCEEDINGS BELOW

¶2.    Alex Walker, the owner of a tree service, called for a service technician to repair an

inoperable skid steer. The serial number reported back to the office by the technician

revealed that the skid steer was listed as stolen. The sheriff’s department went to the location

of the skid steer and questioned Walker, who initially stated that he had purchased the skid

steer from a white man with a jack-o-lantern tattoo. Meanwhile, photographs of an identical

skid steer had been found on Michael Deon Taylor’s phone while he was under arrest for an

unrelated crime. When Walker was shown a photograph of Taylor the day after Walker was

initially questioned by the authorities, he changed his story to say that he purchased the skid

steer from Taylor in exchange for a combination of cash and two vehicles. Photographs of

those two vehicles were also found on Taylor’s phone.

¶3.    Taylor was tried and convicted of possessing stolen property. Prior to trial, Taylor’s

defense attorney filed a Motion in Limine requesting:

       That all evidence regarding his past criminal history be excluded. The
       probative value of this information is greatly outweighed by the prejudice it
       would have on the defendant.

       The State and its witnesses should not be allowed to in anyway solicit, induce,
       entice or make know[n] to the jury any evidence concerning “his past criminal
       history.”

The judge delayed a ruling on the motion until the point in the trial when Taylor made his

final decision to testify in his own defense. Immediately prior to Taylor’s testimony, Taylor’s



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attorney withdrew his previous motion regarding introduction of Taylor’s prior felony

convictions. A bench conference was held prior to the start of Taylor’s testimony:

      [DEFENSE]:           I was going to admit that he’s a convicted felon.

      STATE:               He’s got at least three. I was going to –

      THE COURT:           Are we at the point now? You’re moving past your
                           motion.

      [DEFENSE]:           I understand. When I put him on the stand, I made it
                           there.

      THE COURT:           He is withdrawing his motion.

      STATE:               Okay. That’s cool.

The defense proceeded with direct examination of Taylor, in which Taylor volunteered

information of one past felony:

      ...

      [DEFENSE]:           Why are you in Madison County’s custody?

      A.     Because I violated my probation.

      Q.     Why were you on probation?

      A.     A cocaine charge. I had a sale of cocaine.

      Q.     All right. Let’s back up to this skid steer.

      ...

The State opened its cross-examination with the following line of questioning:

      Q.     What felony crimes have you been convicted of?

      A.     Well, I have a – do you want the year, too?



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Q.   I’ve got the year. I just want to see if you remember.

A.   I have a house burglary, which was in – a house burglary and the
     alteration of motor vehicle I.D., which is I changed numbers on a car
     before in ’93. I have a convicted felon with a firearm.

Q.   What year was that?

A.   The convicted felon with a firearm was – I think I caught it like in 2000
     maybe or 2001, but I got convicted of it in 2004 maybe or something
     like that.

Q.   What else?

A.   I have a grand larceny.

Q.   Where was that from?

A.   Covington.

Q.   Go ahead. What else?

A.   I have two cocaines. Those were my last convictions, was I had two
     drug charges.

Q.   Okay. So let me make sure I’ve got them all here. You were convicted
     of you said auto theft?

A.   Yes. No changing numbers on an auto – changing VIN numbers. Let
     me put it like that.

Q.   Still a felony?

A.   Yes, sir.

Q.   Then you were convicted of a felon in possession of a firearm?

A.   Yes, I was.

Q.   You were convicted of possession of a stolen firearm in Madison
     County, Mississippi, were you not?



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A.   That’s the same charge.

Q.   That you were convicted of sale of cocaine?

A.   Yes.

Q.   Where was that?

A.   Here.

Q.   And you were convicted of possession of cocaine?

A.   Yes.

Q.   Where was that?

A.   That was here.

Q.   How many times is that? Twice?

A.   Yeah. I understand what you’re saying. It was like under one sentence,
     though.

Q.   Okay. So we’ve got six felonies so far?

A.   Yes.

Q.   Then you got a burglary conviction in Covington County in
     January 2012?

A.   No, it was grand larceny.

Q.   Well, let’s see what it was. Okay? I’ll specifically ask you, Mr. Taylor,
     if on – Well, may I hand him this document to refresh his memory?

THE COURT:          Certainly

STATE:       Look at that and read particularly this up here with your name
             up here. Tell the jury what you were convicted of in January of
             2012 in Covington County, Mississippi?

A.   It was a burglary of an automobile.

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         Q.     So how many felonies is that, seven or eight?

         A.     No, it’s either six or seven. Some of them I got at one time. It was like
                two I got at one time.

         Q.     Mr. Taylor, when did you have time to do much of anything else?

¶4.      At no point did Taylor’s attorney raise an objection to this line of questioning. Taylor

was convicted and sentenced to ten years as a habitual offender. The Court of Appeals

affirmed the merits of Taylor’s conviction and sentence while leaving the question of

ineffective assistance of counsel without prejudice for a post-conviction-relief claim.1 We

granted certiorari review to address Taylor’s claim of ineffective assistance of counsel.

                                         DISCUSSION

¶5.      Whether a defendant has received ineffective assistance of counsel is a question of

law reviewed de novo under two prongs: “[f]irst, the defendant must show that counsel’s

performance was deficient . . . Second, the defendant must show that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). While post-conviction proceedings are often the most

appropriate forum for review of ineffective assistance of counsel, we “may nevertheless

reach the merits of the ineffectiveness issue where . . . the record affirmatively shows

ineffectiveness of constitutional dimensions . . . . ” Read v. State, 430 So. 2d 832, 841 (Miss.

1983).




         1
       Michael Deon Taylor v. State, No. 2013-DA-00305-COA, 2014 WL 3586254
(Miss. Ct. App. July 22, 2014), reh’g denied (Nov. 4, 2014), cert. granted (Feb. 3, 2015).
Judge Irving dissented, joined by Chief Judge Lee and Judges Ishee and James, in part.

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¶6.    Mississippi Rule of Evidence 404(b) provides that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show that he

acted in conformity therewith . . . .” Mississippi Rule of Evidence 609(a)(1)(B) provides that

       [f]or the purpose of attacking the character of truthfulness of a witness,
       evidence that a party has been convicted of [a crime punishable by death or
       imprisonment in excess of one year] shall be admitted if the court determines
       that the probative value of admitting the evidence outweighs its prejudicial
       effect to the party . . . .

The comment to the rule provides that “convictions offered under 609(a)(1) to impeach a

party must be analyzed under the guidelines set forth in Peterson v. State, 518 So. 2d 632

(Miss. 1987) to determine if the probative value is great enough to overcome the presumed

prejudicial effect to the party. And findings should be made on the record by the judge.”

M.R.E. 609 cmt.

¶7.    We find that Taylor’s right to a fair trial was compromised by defense counsel’s

withdrawal of the Motion in Limine regarding Taylor’s criminal history and by failure to

object to the State’s extensive cross-examination regarding Taylor’s prior convictions. When

evaluating whether counsel’s performance was deficient, trial counsel “is entitled to the

presumption that his actions fell within the ambit of sound trial strategy, [but] that

presumption is not absolute.” Herrington v. State, 102 So. 3d 1241, 1246 (Miss. Ct. App.

2012). In a criminal trial on the lone charge of possession of stolen property, where the

State’s prime witness previously had changed his story to police about which individual he

purchased the stolen property from, we cannot conceive a trial strategy that would justify

failure to object to the introduction and detailed description of the defendant’s seven or eight



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previous felony convictions. The State’s extensive cross-examination regarding Taylor’s

numerous past felony convictions was clearly more prejudicial than probative in a case that

largely turned on the respective credibility of Taylor and the State’s main witness.

¶8.    A defendant’s choice to testify in his or her own defense does not eliminate the

protection of Mississippi Rule of Evidence 404(b). Neither does a defendant’s willingness

to stipulate to felon status to satisfy impeachment under Rule 609(a)(1)(B). To the contrary,

the strategic goal of such stipulation is to curtail the prejudice that might arise if a more

detailed and expansive record of prior bad acts is allowed in. See Herrington v. State, 102

So. 3d 1241 (Miss. Ct. App. 2012). We agree with Judge Irving’s dissent in the Court of

Appeals opinion that “ it appears that Taylor’s counsel thought that by placing Taylor on the

stand, the prosecution was entitled to inquire, without any limitation, into the details of all

of the prior convictions that Taylor had.” This erroneous assumption had a highly prejudicial

effect on Taylor’s defense. We also note the lack of a judicial finding in the record that the

impeachment evidence under Rule 609 was more probative than prejudicial.

                                      CONCLUSION

¶9.    We hold that Taylor was denied his constitutionally guaranteed right to effective

assistance of counsel due to his attorney’s failure to object to the introduction of Taylor’s

numerous past felony convictions on cross-examination. The prejudicial effect of these

admissions clearly outweighed any probative value in allowing them. We reverse the

judgment of the Court of Appeals, and reverse Taylor’s conviction in the Circuit Court of

Madison County and remand for a new trial.



                                              8
¶10.   REVERSED AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, PIERCE, KING
AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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