                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2005-KA-01350-SCT

DEWAYNE HARRELL a/k/a DWAYNE HARRELL

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         07/23/2004
TRIAL JUDGE:                              HON. MIKE SMITH
COURT FROM WHICH APPEALED:                PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   WILLIAM E. GOODWIN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOHN R. HENRY
DISTRICT ATTORNEY:                        DEE BATES, JR.
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 01/25/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE COBB, P.J., DIAZ AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:


¶1.    Convicted of aggravated assault and sentenced to twenty years’ imprisonment and the

payment of restitution, court-appointed attorney’s fees, and court costs, Dewayne Harrell

appeals, contending that his trial counsel was ineffective. Because Harrell has failed to

demonstrate that counsel’s performance was deficient and that it prejudiced him, this Court

affirms.

                       FACTS AND PROCEDURAL HISTORY
¶2.    Approximately six months prior to November 16, 2001, Dewayne Harrell (“Harrell”)

and Marvin Bates (“Bates”) were involved in a physical altercation with each other at an

Exxon station in McComb, Mississippi. The next time Harrell and Bates came into contact

with one another was November 16, 2001.          Bates and his cousin, Fernando Chesser

(“Chesser”), left a pool hall to get their lunch. After retrieving their lunches, Bates and

Chesser were walking down a street toward the home of an acquaintance. While they were

crossing the street, a car occupied by Harrell, Vasco Hale (“Hale”) and Lashorn Harrell

(“Lashorn”) pulled up. Harrell exited the vehicle with a bottle, which he threw at Bates, who

successfully dodged it. These facts are admitted by both parties.

¶3.    An altercation ensued, and Bates was shot. The testimony is disputed as to who shot

Bates. Bates and Chesser claim Harrell pulled a gun out of his shirt and shot Bates. Harrell

claims the fight was a “free for all” and that he did not shoot Bates, and as soon as Harrell

and Lashorn heard the shots, they ran away. Harrell claims he has never owned a gun and

that Chesser, who is Bates’s cousin and friend, shot Bates.

¶4.    Bates, as well as a witness, Shamekia Jackson (“Jackson”), called the police. When

the police arrived to investigate, Bates told Detective Randy Perryman (“Perryman”) of the

Magnolia Police Department that he had been shot by Harrell.

¶5.    A Pike County Grand Jury indicted Harrell for aggravated assault. Harrell filed an

Affidavit of Indigency and Application for Appointment of Counsel. Thomas Welch, Jr.,

(“Welch”), of the Pike County Public Defender’s Office was appointed as counsel for

Harrell. Further, Harrell waived his arraignment and entered a plea of not guilty.

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¶6.    Harrell was found guilty of aggravated assault by a jury. At the sentencing hearing,

another public defender, Nelson Estess (“Estess”), acted as counsel for Harrell. Harrell was

sentenced to twenty years in prison and was ordered to pay restitution in the amount of

$52,184.67 to Federated Mutual Insurance; $39,162.51 to Southwest Mississippi Regional

Medical Center; $10,000 to the Crime Victims’ Compensation Fund; and $2,500 for court

appointed attorney’s fees.

¶7.    The circuit court denied Harrell’s Motion for Judgment Notwithstanding the Verdict,

or in the Alternative, Motion for New Trial. The order was prepared and presented by

counsel for Harrell, although the Motion for JNOV, or in the Alternative, Motion for New

Trial is not included in the record. Harrell timely filed this appeal and asserts that he was

denied effective assistance of counsel.

                                STANDARD OF REVIEW

¶8.    The Sixth Amendment to the United States Constitution guarantees the right to

assistance of counsel. U.S. Const. amend. VI. “Any defendant convicted of a crime may raise

the issue of ineffective assistance of counsel on direct appeal, even though the matter has not

first been presented to the trial court. The Court should review the entire record on appeal.”

Read v. State, 430 So.2d 832, 841 (Miss. 1983). This Court has stated:

       Mississippi has recognized that a strong presumption of competence exists in
       favor of the attorney. Mohr [v. State], 584 So.2d [426,] 430 [(Miss. 1991)].
       The test is one of reasonableness; counsel must have provided “reasonably
       effective assistance.” Strickland [v. Washington], 466 U.S. [668,] 687, 104
       S.Ct. 2052[, 80 L.Ed. 2d 674 (1984)]. For a defendant to prevail on a claim of
       ineffectiveness, counsel’s representation must have fallen ‘below an objective
       standard of reasonableness.” Id. at 688....

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Havard v. State, 928 So.2d 771, 780-81 (Miss. 2006).

                                         ANALYSIS

       Whether Harrell received effective assistance of counsel

¶9.    “The benchmark for judging any claim of ineffectiveness [of counsel] must be

whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v. Washington,

466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This Court has noted:

               Judicial scrutiny of counsel’s performance must be highly deferential....
       [A] fair assessment of attorney performance requires that every effort be made
       to eliminate the distorting effects of hindsight, to reconstruct the circumstances
       of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
       perspective at the time. Because of the difficulties inherent in making the
       evaluation, a court must indulge a strong presumption that counsel’s conduct
       falls within the wide range of reasonable professional assistance; that is, the
       defendant must overcome the presumption, that, under the circumstances, the
       challenged action ‘might be considered sound trial strategy.’

Byrom v. State, 927 So.2d 709, 714 (Miss. 2006) (citations omitted).

¶10.   A claim for ineffective assistance of counsel must meet the two-prong test outlined

in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984). See Bennett v. State, 933 So.2d 930, 943 (Miss. 2006); Sipp v. State, 2006 Miss.

LEXIS 326, 334 (Miss. 2006); Byrom v. State, 927 So.2d at 714. This Court has stated:

       The test is two pronged: The defendant must demonstrate that his counsel’s
       performance was deficient, and that the deficiency prejudiced the defense of
       the case. Strickland, 466 U.S. at 687; Washington v. State, 620 So.2d 966
       (Miss. 1993). ‘This requires showing that counsel’s errors were so serious as
       to deprive the defendant of a fair trial, a trial whose result is reliable. Unless
       a defendant makes both showings, it cannot be said that the conviction or death
       sentence resulted from a breakdown in the adversary process that renders the

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       result unreliable.’ ‘In any case presenting an ineffectiveness claim, the
       performance inquiry must be whether counsel’s assistance was reasonable
       considering all the circumstances.’

Ransom v. State, 919 So.2d 887, 889 (Miss. 2005) (citations omitted).

¶11.   “To determine the second prong of prejudice to the defense, the standard is ‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’ Mohr v. State, 584 So.2d 426, 430 (Miss. 1991).

This means a ‘probability sufficient to undermine the confidence in the outcome.’Id.” Id. at

890.

¶12.   Harrell claims he was denied effective assistance of counsel for the following reasons:

(a) No witnesses were subpoenaed to court on his behalf; (b) no preparation by counsel until

the eve of trial and no formal motion for a continuance was made by counsel; (c) improper

voir dire and no request for a mistrial when jurors allegedly had improper contact with

Harrell’s family; (d) no motion for JNOV or new trial was filed by the defense; and (e) he

was not given an opportunity for allocution at his sentencing hearing, as his attorney did not

appear at the sentencing hearing.

       (a) Harrell claims no witnesses were subpoenaed on his behalf

¶13.   Harrell contends there was no witness list or subpoena requests filed on his behalf. In

an Omnibus Order, when asked if Harrell may, will or will not call witnesses, Harrell stated,

“He may testify,” “he may call additional witnesses” and “character witnesses may be

called.” The State filed a witness list and requested subpoenas for nine witnesses to appear.

The State’s witness list states that counsel for Harrell received a copy. Welch confirmed he

                                              5
received this list and on it were the two witnesses which he intended to call, Hale and

Lashorn. When the trial judge asked Welch whether he issued subpoenas for these witnesses,

Welch responded that the State had issued subpoenas for them. The State confirmed the

witnesses were on their witness list. Prior to trial, it was discovered Hale had moved to New

York City and could not be located. When counsel for Harrell discovered Hale was not

available, he made a motion for continuance as he asserted Hale was important to Harrell’s

defense. This motion was denied by the trial court. The testimony of Hale was previously

recorded, and the tape was preserved. The State argued the testimony of Hale supported the

prosecution, although admittedly not as strongly as some of the other witnesses. Hale never

exonerated Harrell from responsibility for the shooting in his recorded testimony. Harrell has

failed to establish that the failure to ensure Hale testified prejudiced his defense.

¶14.   At trial, the State called seven witnesses. Jackson, an eyewitness, testified she heard

a gunshot and saw Bates running from Harrell. She called 911 to report someone had been

shot. During her interview by the police, Jackson stated she saw Harrell with a gun. Chesser

testified he saw Harrell pull a gun and shoot Bates. The State also called Dr. William Dixon,

who treated Bates when he arrived at the hospital. Dr. Dixon testified that when he took

Bates’s medical history for treatment, Bates told him he had been shot by Harrell. The State

also called Officer Perryman, who was at the scene and interviewed witnesses, and Magnolia

Police Officer Robert Holmes, who also interviewed witnesses. The State then called the

victim, Bates, who testified Harrell shot him. Additionally, the State called Lashorn as an




                                               6
adverse witness. He testified it was not Harrell who shot Bates. Harrell took the stand in his

defense and denied that he shot Bates.

¶15.   Defense counsel knew two of Harrell’s witnesses were under subpoena by the State.

The State argues Welch was justified in relying on the State’s witness list and subpoenas to

bring these witnesses to court and this could be considered strategy pursuant to Byrom v.

State. Further, “[c]ounsel’s choice of whether to call witnesses and ask certain questions falls

within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel

claim.” Jackson v. State, 815 So.2d 1196, 1200 (Miss. 2002) (citation omitted). It can be

persuasively argued that such action was strategically employed to conceal the defendant’s

intent to utilize the State’s witnesses in his defense. Furthermore, there is no guarantee that

Hale would have testified even if he appeared, as he could have exercised his privilege not

to testify. Harrell asks this Court to assume or speculate that: (1) Hale would not have

exercised his Fifth Amendment right; (2) Hale would have testified; and (3) that Hale’s

testimony would convince a jury of Harrell’s innocence in light of overwhelming evidence

to the contrary. Harrell has failed to satisfy either prong of the Strickland test, as his defense

was neither prejudiced by counsel’s failing to subpoena these witnesses, nor does this Court

have facts to support a finding that his defense prejudiced by Hale’s failure to appear.

       (b) Harrell claims there was no preparation by counsel until the eve of
       trial. Harrell states counsel should have made a Motion for Continuance
       if counsel was unprepared.

¶16.   Counsel for Harrell stated to the trial judge, “At approximately 9:00 yesterday, July

14, I was under the impression that Mr. Harrell’s case would be tried next week. At

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approximately 10:00 or 10:30 yesterday morning, I was informed that his trial would be held

on Friday at 9:00. I brought Mr. Harrell in. We discussed his case again, made trial

preparations and told him to call me this afternoon.” (Emphasis added). Trial in this matter

was held on Thursday, July 15, 2004. Counsel for Harrell stated Harrell did not know until

the night before his trial had been moved from Friday to Thursday.

¶17.   This case was set for trial on two occasions prior to July 15th. The case was continued

on one occasion by agreement of both parties and on another occasion by the trial court due

to an ongoing civil trial. The State stated to the trial judge, “But we have been ready and I

think the defense has been ready, at least on that prior occasion.” When asked by the judge

if counsel for Harrell was ready to proceed to trial, counsel announced ready.

¶18.   Aside from the foregoing conversation with the trial judge, Harrell offers no proof that

counsel failed to prepare, or that he had only prepared on the eve of trial. The paucity of

evidence presented does not evince that counsel for Harrell was not prepared. Without

support in the record, Harrell fails to establish that the performance of his counsel was

deficient according to Strickland.

       (c) Harrell claims proper voir dire of the jury was not made and there was
       no request for a mistrial when jurors had improper contact with Harrell’s
       family.

¶19.   Harrell asserts that his counsel did not conduct a proper voir dire of the jury and that

this had a detrimental effect when it was later discovered Harrell’s father was friendly with

two of the jurors and actually went to lunch with them during the trial.



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¶20.   During voir dire of the jury, the trial judge asked if anyone knew Harrell or his family.

There were seven potential jurors who raised their hands. Each of these seven were properly

questioned by the judge and asked how they knew Harrell and his family, and if they could

be fair and impartial in trial. Each of the jurors, with the exception of one who was

subsequently excused, responded they could be fair and impartial during trial. Further during

voir dire, the State asked potential jurors if they knew Harrell or specifically, Harrell’s

mother. Five potential jurors raised their hands, and each was asked about their relationship

with Harrell’s mother was and if they could be fair and impartial during trial. Each of the

jurors responded they could be fair and impartial. The jury was further asked by the trial

court, as well as the State, if they knew any of the potential witnesses or attorneys and if any

had a relationship with one of these witnesses or attorneys, would this relationship affect

their ability to be fair and impartial. Each of the jurors who knew the attorneys or potential

witnesses stated this would not affect their ability to be fair and impartial.

¶21.   During voir dire, counsel for Harrell did not ask any questions. He stated to the jury,

“Ladies and Gentlemen, the judge has asked some good questions. The D.A. has asked a

bunch of good questions. I really don’t have an awful lot to ask you.” In Burns v. State, this

Court quoted the Fifth Circuit’s stance on this issue as, “[g]enerally, the Fifth Circuit

considers an attorney’s actions during voir dire to be a matter of trial strategy, which ‘cannot

be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics are shown

to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.’” Burns v.

State, 813 So.2d 668, 675-76 (Miss. 2001) (quoting Teague v. Scott, 60 F.3d 1167, 1172 (5th

                                               9
Cir. 1995)) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). Counsel for

Harrell actively participated in exercising peremptory challenges and striking jurors for

cause. After review of the record, including voir dire of the jury, it cannot be said that

counsel’s conduct during voir dire permeated the entire trial with obvious unfairness.

¶22.   Additionally, Harrell claims his counsel erred by not asking for a mistrial when two

jurors were dismissed for having improper contact with Harrell’s father. The trial judge

properly instructed the jury not to mingle with any spectators, witnesses, or the attorneys.

However, during trial, two jurors were seen getting out of the car with Harrell’s father, after

having had lunch with him. The trial judge stated neither of the jurors responded they knew

Harrell’s family during voir dire. The trial judge asked all jurors if they had had any contact

with Harrell’s father and they answered no. The trial judge asked Harrell’s father to point out

the two jurors, which he did. The two jurors stated they did not know they could not have

contact with Harrell’s father. The judge reprimanded Harrell’s father and removed him from

the courtroom for the duration of the trial. The trial judge dismissed the two jurors and again

warned the remaining jurors not to have any contact with the participants in the trial, nor their

family members. Counsel for Harrell unsuccessfully objected to their removal (outside the

presence of the remaining jurors). This motion was denied by the trial judge who stated he

saw no prejudice.

¶23.   Harrell asserts his counsel should have asked for a mistrial. “This Court reviews

motions for mistrial under an abuse of discretion standard.” Parks v. State, 930 So.2d 383,

386 (Miss. 2006) (citation omitted). “The trial court must declare a mistrial when there is an

                                               10
error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s

case, however, the trial judge is permitted considerable discretion in determining whether a

mistrial is warranted because the judge is best positioned to measure the prejudicial effect.”

Id. (citations omitted). Since the trial court found that no prejudice resulted from counsel’s

failure to move for a mistrial, this failure does not constitute ineffective assistance by

counsel. We cannot say the trial court abused its discretion.

       (d) Harrell claims no motion for JNOV or new trial was filed by his
       defense counsel.

¶24.   Included in the record is an order by the trial court denying Harrell’s Motion for

JNOV, or in the alternative, Motion for New Trial. This order was prepared and presented

by counsel for Harrell. A Motion for JNOV, or in the alternative, Motion for New Trial, is

not included in the record. However, an order in the record denying such evidences the trial

court considered and rejected Harrell’s request. This issue is without merit.

       (e) Harrell claims he was not given an opportunity for allocution at his
       sentencing hearing and his attorney did not appear at the sentencing
       hearing.

¶25.   Harrell claims his counsel was ineffective because Welch did not attend Harrell’s

sentencing hearing. However, Harrell was represented by another public defender, Estess.

During the sentencing hearing, there were no witnesses or mitigating circumstances

presented on behalf of Harrell. In his brief to this Court, Harrell offers no proof that he would

have called witnesses or desired to present mitigating circumstances. Harrell offers no

evidence in support of his contention that Estess was ineffective during the sentencing


                                               11
hearing. This Court has held that Harrell “must allege matters [regarding ineffective

assistance] with specificity and detail.” Perkins v. State, 487 So.2d 791, 793 (Miss. 1986).

Harrell offers only an unsupported assertion that he was prejudiced because his counsel

“failed to show up.” Therefore Harrell has failed to prove that “under the totality of the

circumstances, prejudice resulted from a deficiency in counsel’s performance.” Earley v.

State, 595 So.2d 430, 433 (Miss. 1992) (quoting Barnes v. State, 577 So. 2d 840, 841 (Miss.

1991) (emphasis in original).

¶26.   Further, Harrell claims he was not given an opportunity to make a statement at his

sentencing hearing. This Court has held, “Allocution is not a matter of right.” Id. During

sentencing, neither Harrell nor Estess requested that Harrell be allowed to make a statement.

This Court has held counsel was not ineffective when the defendant was not afforded

allocution, because neither the defendant nor his counsel requested that the defendant make

a statement prior to sentencing. The Court found the defendant was not entitled to allocution

as he made no indication he desired to make a statement. See Berry v. State, 288 So.2d 457,

460 (Miss. 1974). Because allocution is not a right, this claim fails to rise to the level of

ineffectiveness as set forth in Strickland.

¶27.   The claims by Harrell that he was denied ineffective assistance of counsel during his

sentencing hearing fails to meet the two-prong test outlined in Strickland.

                                      CONCLUSION

¶28.   “The right to effective counsel does not entitle the defendant to have an attorney who

makes no mistakes at trial. The defendant just has a right to competent counsel.” Mohr, 584

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So.2d at 430. After review of the record and the claims made by Harrell, this Court concludes

that Harrell has failed to prove his counsel was (a) deficient and (b) that this deficient

performance deprived him of a fair trial. See Strickland, 466 U.S. at 687. Additionally,

Harrell failed to show a “reasonable probability that ‘but for counsel’s unprofessional errors,

the result of the proceedings would have been different.’” Ransom, 919 So.2d at 889

(citations omitted). Accordingly, Harrell’s assertions of ineffective assistance of counsel are

without merit. This Court affirms the trial court’s judgment.

¶29. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED.       APPELLANT IS ORDERED TO PAY
RESTITUTION IN THE AMOUNT OF $52,184.67 TO FEDERATED MUTUAL
INSURANCE, $39,162.51 TO SOUTHWEST MISSISSIPPI REGIONAL MEDICAL
CENTER, $10,000.00 TO THE CRIME VICTIMS’ COMPENSATION FUND,
COURT APPOINTED ATTORNEY’S FEES IN THE AMOUNT OF $2,500.00 AND
COURT COSTS.

    SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.




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