                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2008-KA-00021-SCT

BRENDA LIDDELL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           10/25/2007
TRIAL JUDGE:                                HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED:                  TUNICA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    W. DANIEL HINCHCLIFF
                                            LESLIE S. LEE
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                          LAURENCE Y. MELLEN
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 03/05/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., DICKINSON AND LAMAR, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    In this felony drug-sale case, the defendant claims she received ineffective assistance

of counsel at trial. Because we find her trial counsel’s actions fell within the large ambit of

“reasonable professional assistance,” we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2.    Mississippi Bureau of Narcotics Agent Luis Hawkins, Tunica Police Officer Chris

Smith, and a confidential informant (“C.I.”) set up a drug buy at Brenda Liddell’s home. The

officers equipped the C.I. with a camera and microphone and sent him to Liddell’s home to

buy an ounce of cocaine. When he arrived, Liddell told him that she did not have any
cocaine ready to sell, but to come back in a couple of hours. The C.I. returned to the post-

buy location, where Hawkins and Smith instructed him to return to Liddell’s house and buy

whatever she was selling.

¶3.    The C.I. returned to Liddell’s house and asked her if she had any “footballs.” 1 Liddell

responded that she did, and the C.I. bought the twenty-three dosage units that she had.

Although the C.I. discussed the transaction with Liddell, Catherine “Doll” Bogan actually

handed him the pills and took the money. The C.I. then asked Liddell when she would have

some cocaine ready, and she responded “in about twenty or thirty minutes.” The C.I. left

Liddell’s house with the Xanax and reported back to Hawkins and Smith.

¶4.    While at the post-buy location, the C.I. received a call from Liddell telling him to

“come on.” He returned to Liddell’s house to buy the cocaine. Liddell instructed the C.I.

to place the $800 on the counter, and to retrieve the cocaine from a glass bowl on the table.

Liddell took the $800 from the counter and put it in the pocket of her bathrobe. The C.I.

returned to the post-buy location and turned the cocaine over to Hawkins and Smith.

¶5.    Liddell was indicted on two counts of “unlawfully, wilfully and feloniously and

without authority of law selling, transferring or delivering” a controlled substance. Wilbert

Johnson was appointed as her public defender. At trial, the State called Agent Hawkins as

a witness. He testified that he recognized Liddell’s voice on an audio recording of the drug

transaction. The jury acquitted Liddell of Count I – the sale of the Xanax – but found her

guilty of Count II, the sale of cocaine. She was sentenced to ten years in prison, with five

years suspended. Liddell filed a motion for judgment notwithstanding the verdict (JNOV),

       1
           Agent Hawkins testified that this phrase is slang for Xanax (chemical name, alprazolam).

                                                  2
or in the alternative, for a new trial, which the trial judge denied. She timely filed a notice

of appeal. Her public defender subsequently was allowed to withdraw as counsel, and the

Office of Indigent Appeals was substituted as counsel on appeal. Liddell argues on appeal

that the trial court erred when it failed to sua sponte order a mistrial due to ineffective

assistance of counsel.

                                          ANALYSIS

¶6.    The United States Supreme Court established the now-familiar standard for

determining whether a defendant received ineffective assistance of counsel in Strickland v.

Washington, 466 U.S. 668 104 S. Ct. 2052, 80 L. Ed. 674 (1984):

       A convicted defendant’s claim that counsel’s assistance was so defective as to
       require reversal of a conviction or death sentence has two components. First,
       the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. 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 result unreliable.

Id. at 687. “The benchmark for judging any claim of ineffectiveness 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.” Id. at 686. The Supreme Court

also stated:

       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

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       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.”

Id. at 689. “In considering a claim of ineffective assistance of counsel, an appellate court

must strongly presume that counsel’s conduct falls within a wide range of reasonable

professional assistance, and the challenged act or omission might be considered sound trial

strategy. In other words, defense counsel is presumed competent.” Bennett v. State, 990 So.

2d 155, 158 (Miss. 2008).

¶7.    Liddell argues that her trial attorney provided ineffective assistance of counsel in three

instances: (1) when he allowed Agent Hawkins to testify that it was Liddell’s voice on the

audio recording without proper authentication or predicate, and then provided the

authentication himself on cross; (2) when he elicited on cross examination the C.I.’s many

previous trips to Liddell’s house and neighborhood to purchase drugs; and (3) when he

stipulated to “Doll” Bogan’s 2 conviction.

       Agent Hawkins’s Testimony

¶8.    Liddell first argues that her attorney was deficient when he allowed Agent Hawkins

to identify her voice on the audio recording of the drug transaction without proper predicate

or authentication. Specifically, Liddell states that “[u]ntil the State laid the predicate that

Hawkins was familiar with [her] voice, it was error to admit the testimony that [she] was

speaking or that it was her voice on the recordings.” Additionally, Liddell argues that her

attorney’s elicitation of the authentication on his cross-examination of Agent Hawkins was

deficient. Her arguments fail for two reasons.

       2
           Bogan was also indicted, tried, and convicted.

                                                  4
¶9.    First, Agent Hawkins’s testimony that it was Liddell’s voice he heard on the recording

is not subject to the authentication requirement of MRE 901. The State was not trying to

admit the audiotape itself into evidence. Thus, no authentication of the tape itself was

required. Accordingly, the failure to object to the authentication of Agent Hawkins’s

testimony was not ineffective assistance of counsel. Additionally, the failure of Liddell’s

attorney to require the State to “lay the predicate” for Agent Hawkins’s testimony is harmless

error, as we are not left to guess whether Agent Hawkins had personal knowledge of

Liddell’s voice, as he testified to that effect on cross-examination.

¶10.   Liddell’s second argument regarding her attorney’s handling of Agent Hawkins’s

testimony is inconsistent with her first argument. She argues on one hand that her counsel’s

failure to object to Agent Hawkins’s testimony was deficient, while on the other hand she

argues that his attempt to do so on cross-examination was deficient as well.3 Inconsistency

aside, Liddell’s argument must fail, as she did not establish the second prong of the

Strickland test, that is, that she was prejudiced by her attorney’s statements on cross.

Strickland, 466 U.S. at 687. Even assuming that his elicitation of Agent Hawkins’s previous

dealings with Liddell was so deficient as to meet the first prong, plenty of other evidence

exists – such as the clear, unequivocal testimony of the C.I., Smith, and Hawkins – to support

the jury’s verdict. In other words, her attorney’s cross-examination of Agent Hawkins did

not “deprive Liddell of a fair trial,” or result in a trial that was “unreliable.”


       3
        The following dialogue transpired between Liddell’s attorney and Agent Hawkins on cross:
“Q: You had heard [Liddell’s] voice before? A: I have. Q: How did you – on the telephone or in
person? A: Are you asking me specifically how I – ? Q: How you heard her voice? A: Did you just
open the door for me to step through? Q: Uh, I asked you a question. A: Okay. Well, the – I
recognized her voice from previous sale cases.”

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       The C.I.’s Previous Trips to Liddell’s House

¶11.   Liddell next argues that her attorney erred during his cross-examination of the C.I. by

eliciting testimony about several previous drug buys from Liddell. However, we can not rule

out the possibility that the cross-examination was a “sound trial strategy,” designed to raise

reasonable doubt in the minds of the jurors as to whose drugs the C.I. actually purchased.

In fact, during closing argument, Liddell’s attorney stated:

       He [the C.I.] testified to you truthfully somewhat, crack ring. All around.
       People in and out. I counted eight until I put my hand down. And somebody
       in a wheel chair, John. . . . [Y]ou don’t go thinking, well, she probably did.
       Maybe she did. Well, she was in the wrong place at the wrong time. Man,
       they got a lot of bad stuff going on. She should have known better. That’s not
       the law. The law is, when you bring charges against somebody, you need to
       prove every element of the crime beyond a reasonable doubt! You have to
       show that she sell [sic], transferred or delivered cocaine! You have to show
       that the sell [sic], transferred or delivered the other drug, the footballs, or
       whatever you want to call them. Not assume. They assumed it was her house.
       No. She was there. Everybody was there. A lot of people were there . . .
       Well, this is in the neighborhood stuff. In the neighborhood stuff. You in the
       wrong place. That’s good enough. You in the wrong place. That’s good
       enough for proof. Well, I don’t want to hear no more.

¶12. We cannot rule out the possibility that Liddell’s attorney elicited testimony about

previous drug buys from her house and neighborhood in an attempt to raise reasonable doubt

in the minds of the jurors. Accordingly, we hold that Liddell’s attorney’s actions in this area

fell within the “wide range of reasonable professional assistance.”

       “Doll” Bogan’s Conviction

¶13.   Liddell’s final argument is that her attorney erred when he stipulated to “Doll”

Bogan’s conviction.4 This decision, too, may very well have been “sound trial strategy,” as


       4
        The following exchange transpired between the trial court and the attorneys: “State: Your
Honor, the State has a stipulation it would like to make with defense counsel essentially as to – I

                                                6
Liddell’s attorney mentioned Bogan’s conviction during his closing argument in an effort to

discount the C.I.’s testimony about Liddell, stating:

       I’m saying he was paid to get the goods on Brenda Liddell. He got the goods
       on Catherine Bogan, and she came into this very courtroom and pleaded guilty.
       He got the goods on her. He didn’t get paid for it. So, when they said go back
       and do it again, this man testified to you with your ear, not my bad ear, that he
       got $500.00 for an ounce. You get $500.00 if it’s Brenda Liddell. You get
       zero if it’s Catherine Bogan.

Thus, the stipulation of “Doll” Bogan’s conviction was not ineffective assistance of counsel.

                                        CONCLUSION

¶14.   For the reasons stated herein, because the trial court did not err in its refusal to sua

sponte order a mistrial due to ineffective assistance of counsel, we affirm the conviction and

sentence of the Circuit Court of Tunica County in this case.

¶15. COUNT II: CONVICTION OF SALE OF COCAINE AND SENTENCE OF
TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED, AFTER SHE HAS SERVED
FIVE (5) YEARS, WITH CONDITIONS, AFFIRMED.

     WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED IN PART BY GRAVES, P.J.

       KITCHENS, JUSTICE, DISSENTING:




haven’t got it marked. I’m sorry. Excuse me. Court: What’s this, Wilbert? He said there’s a
stipulation? Liddell’s attorney: A stipulation as to the conviction of Catherine Bogan. Court: As
to what? Liddell’s attorney: Catherine Bogan. We are stipulating that she has been convicted in this
cause number. Court: Oh, the co-defendant? State: To that, your Honor, I would like to ask for the
introduction of State’s Exhibit 8, which is the sentencing judgment and proof of conviction of
Catherine Bogan in cause number 2007-0144 as to Count I. Court: Any objection? Liddell’s
attorney: No objection. Court: S-8 is admitted without objection.” This was the entire exchange as
to Bogan’s conviction.

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¶16.   The record in this case chronicles a legal sideshow that must have been a bewildering

wonder to behold at trial. Though comedic infirmities do not necessarily give rise to

constitutional ones, the facts of this case lead me to conclude that the performance of

Liddell’s attorney was as counterproductive as it was unorthodox. Because the Court

concludes that Liddell received effective assistance from her attorney, I dissent.

¶17.   I do not take issue with the majority’s determination that Wilbert Johnson, Liddell’s

public defender, came to the courthouse with some sort of strategy. The record demonstrates

that lawyer Johnson endeavored to portray Liddell’s trailer as a “drug house” and to paint

everyone around his client with a dirty brush, hoping thereby to create reasonable doubt as

to whether the drugs in question actually belonged to Liddell. See Maj. Op. at ¶11 and n.4.

¶18.   Even if this was a sound trial strategy, the means by which Johnson undertook its

execution were bizarre and contrary to his client’s best interest. On cross-examination of

Agent Hawkins, Johnson’s elicitation of testimony regarding Liddell’s prior offenses was so

egregious that Hawkins himself seemed stunned by the line of questioning. Johnson elicited

similar testimony from the police informant, who was more than willing to indulge Johnson’s

inquiries about the “many people in and out” of this “drug house.” Maj. Op. at 6, n. 4.

¶19.   Johnson’s decision to allow “Doll” Bogan’s conviction into evidence is particularly

perplexing. Had the State presented this fact to the jury on its own initiative, the trial judge

would have been compelled to declare a mistrial. Robinson v. State, 465 So. 2d 1065, 1068

(Miss. 1985) (noting that one co-defendant’s guilty plea “is not competent evidence on the

trial of the other because such plea of guilty or conviction is not evidence of the guilt[] of the

party being tried.”). How Johnson reasoned that this radioactive information, constitutionally


                                                8
prohibited under normal circumstances, would cast a more innocent light upon his client is

beyond me, and any explanation surely must wander beyond what we recognize as

objectively reasonable. See Bennett v. State, 990 So. 2d 155, 158 (Miss. 2008).

¶20.    Under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L. Ed. 2d 674 (1984), an attorney’s representation must be both deficient and

prejudicial in order to deprive the client of her Sixth Amendment right to counsel. I would

not hesitate to hold that Johnson’s performance exceeds both requirements. It is one thing

to miss the mark. It is quite another to blaze away at one’s own foot and his client’s foot as

well.

¶21.    Even if I found defense counsel’s performance constitutionally adequate under

Strickland, I still could not join the majority’s opinion because it misapplies the Strickland

test.

¶22.    The right of a criminal defendant to counsel, guaranteed by the Sixth Amendment to

the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution, is fulfilled

only by an attorney’s effective assistance. This does not mean that the lawyer must win, but

it most assuredly does mean that the lawyer must not sabotage his client’s defense, wittingly

or unwittingly.

¶23.    Inquiries into an attorney’s effectiveness must be objective in nature, not subjective

as today’s majority opinion implies. The majority reaches its conclusion after determining

that counsel for Liddell took steps at trial that “may very well have been” intentional. Maj.

Op. at ¶13. But the attorney’s subjective intent is irrelevant. Rather, this Court always has

concerned itself with the objective inquiry of whether “counsel’s conduct falls within a wide

                                              9
range of reasonable professional assistance . . . .” Bennett v. State, 990 So. 2d 155, 158

(Miss. 2008).

¶24.   This case well illustrates the danger of transforming the Strickland analysis into a

subjective inquiry. The record provides little room for doubt that Johnson intended to take

the steps that form the basis of Liddell’s appeal, but that intent does not render the decisions

objectively reasonable or his assistance effective. Indeed, intent is irrelevant on the question

of reasonableness. If our inquiry looks to subjective intent, then Strickland will be

effectively eviscerated, save for when inadequately performing attorneys mistakenly trip up

on their own vain strategies.

¶25.   Accordingly, because I would reverse the defendant’s conviction and remand for a

new trial aided by the guidance of a constitutionally effective defense attorney, I respectfully

dissent from the majority opinion.

       GRAVES, P.J., JOINS THIS OPINION IN PART.




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