         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-01090-COA

VICTOR L. MCBEATH A/K/A VICTOR                                              APPELLANT
MCBEATH

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          07/11/2017
TRIAL JUDGE:                               HON. CHRISTOPHER A. COLLINS
COURT FROM WHICH APPEALED:                 NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                         STEVEN SIMEON KILGORE
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 11/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Following a jury trial in the Neshoba County Circuit Court, Victor McBeath was

convicted of first-degree murder and first-degree arson. On appeal, McBeath argues that his

trial counsel provided ineffective assistance by failing to investigate or present an insanity

defense and by failing to object to certain opinion testimony from law enforcement officers.

We conclude that the present record is insufficient to address McBeath’s claim. Therefore,

we dismiss the claim without prejudice. McBeath may assert the claim in a properly filed

motion for post-conviction relief. McBeath’s convictions and sentences are affirmed.
                         FACTS AND PROCEDURAL HISTORY

¶2.       On the evening of November 25, 2015, McBeath and his brother Demonta were

“chilling” with some friends at a house in Walnut Grove. Between 9 and 10 p.m., McBeath

drove back to his father’s house in Neshoba County, where he and Demonta lived. Fifteen

to thirty minutes later, Demonta did the same. When Demonta arrived home, McBeath was

on the couch in the living room, where he usually slept. Demonta testified that McBeath was

“acting delusional, psychotic, and he was talking out of his head.” Demonta briefly talked

to McBeath and then went to his bedroom, locked his door, and went to sleep. Demonta

testified that when he went to bed, McBeath was still pacing in the living room and talking

to himself. Their father, Ozie, was already asleep in his bedroom.

¶3.       Around 3:30 or 4 a.m., Demonta awoke to a gunshot and a scream. He jumped out

of bed and ran into the hallway. He then saw McBeath walking toward him with a shotgun.

McBeath did not say anything at first, but he seemed “angry”—“[h]is eyes were bulged and

he seemed dysfunctional.” Demonta testified that McBeath then said to “get the baby,”

although there was no baby in the house. When McBeath pointed the gun at him, Demonta

“tried to make a run for it.” He knocked over a dresser, broke out a window, and tried to

climb out. But McBeath still had the gun pointed at him. Demonta begged McBeath not to

shoot him. When McBeath paused briefly, Demonta charged at him, knocked him down, and

took the gun. Demonta asked McBeath what he had done, and McBeath said, “Monta, I’m

sorry.”

¶4.       Demonta, now holding the shotgun, ran to Ozie’s bedroom. He saw blood on a pillow



                                              2
but did not see Ozie, so he began searching other rooms. While Demonta looked for Ozie,

McBeath found a rifle. Demonta and McBeath ran into each other outside Ozie’s bedroom.

Demonta hit McBeath with his shotgun, and a fight ensued. Demonta was able to take the

rifle from McBeath, and he then continued his search for Ozie. Demonta finally found Ozie

on a daybed in the living room. Ozie had been shot in the back of the head and appeared to

be dead. Demonta then used a padlock to lock the shotgun and rifle in a bedroom, and he left

the house in Ozie’s Chevy Tahoe. As Demonta drove away, McBeath was pacing in the yard

and still “talking out of his head.”

¶5.    Neshoba County deputy sheriffs Colby Clay and Greg Tubby went to the house to

investigate. Clay knew McBeath because he had been called to the house several times on

“disturbance calls” involving McBeath and Ozie. Clay and Tubby initially knocked on the

door and waited, but after they saw fire coming out of a window, they kicked open the front

door and entered the house. Once inside, they saw Ozie on the daybed. They tried to look

for others, but there was too much smoke, so Tubby retrieved a fire extinguisher from their

car and used it to put out the fire. Clay found a space heater in the dining room near the spot

where the fire appeared to have started. Clay testified that he did not smell any accelerants

at the time.

¶6.    Clay and Tubby then moved to the backyard. There was a tree line fifty feet or so

behind the house, and Clay shined his flashlight into the trees and called, “Victor, come out.”

After he called two or three times, McBeath responded, “Mr. Clay, I’m coming out.”

McBeath then came out of the trees, and Clay handcuffed and arrested him. Clay testified



                                              3
that McBeath’s “demeanor was a bit spacey.” McBeath was responsive as long as Clay could

keep “his attention,” but he was also “mumbling” to himself incoherently. Clay testified that

McBeath “was acting different” that night than during their prior encounters, but Clay did

not smell any alcohol on McBeath. Clay said it was “possible” that McBeath was under the

influence of drugs.

¶7.    Investigator Ralph Sciple determined that Ozie was shot in his bedroom while still

lying down in his bed and then dragged through the house to the daybed. Sciple found the

rifle and shotgun, a Winchester, in a locked bedroom and a pistol under Ozie’s pillow.

Sciple, who was also the arson investigator for Neshoba County, examined the dining room

and the space heater and determined that the fire was set intentionally because “[t]here was

nothing else there that would . . . set it on fire.” He testified that the space heater was not

turned on at the time of the fire, so it could not have caused the fire.

¶8.    Sciple was unable to interview McBeath at the time of his arrest because he seemed

to be “under the influence of something.” However, Sciple and Sheriff Tommy Waddell

interviewed McBeath in jail a few days later. McBeath waived his Miranda rights and

agreed to talk to Sciple and Waddell without an attorney.1 Sciple testified that McBeath did

not appear to be under the influence of drugs or alcohol at the time of the interview.

McBeath told Sciple and Waddell that he could not remember much about killing Ozie.



       1
        During trial, McBeath made an ore tenus motion to suppress his oral statements to
Sciple and Waddell. The court held a suppression hearing outside the presence of the jury,
and both Sciple and Waddell testified. McBeath did not testify. The trial judge then denied
McBeath’s motion, finding that his Miranda waiver was valid and that his statement was free
and voluntary. McBeath does not raise this issue on appeal.

                                               4
McBeath said repeatedly that he was “on some bad dope and went crazy.” He told Sciple

that the “bad dope” was methamphetamine.

¶9.    McBeath told Sciple that he remembered shooting Ozie, but he did not know why he

did it. He said that he moved Ozie to the living room to try to get help. McBeath also

admitted that he started the fire, but he said he could not remember what he used to start it.

The interview was not recorded, and McBeath declined to make a written statement.

¶10.   McBeath was indicted for first-degree murder and first-degree arson. His attorney,

James E. Smith III, filed a motion for a psychiatric evaluation to determine his competence

to stand trial. In his motion, Smith stated that he believed that McBeath was mentally ill and

unable to assist in his own defense. The court ordered an evaluation and directed the

psychiatrist to assess McBeath’s present ability to assist in his own defense and competence

to stand trial. The court’s order also directed the psychiatrist to assess McBeath’s ability to

know the difference between right and wrong at the time of the offense.

¶11.   Dr. Mark Webb evaluated McBeath. In his report, Webb noted that McBeath denied

killing Ozie and claimed that “they have the wrong person.” McBeath told Webb that he had

“fired [Smith]” and wanted a new attorney because Smith “was not listening to [him].”

Webb noted that McBeath had no history of mental illness and was not taking any

medications, although he claimed to have smoked “a lot of marijuana” prior to his arrest.

Webb described McBeath as “cooperative, logical and coherent, [and] fairly cheerful.”

McBeath told Webb that he had not experienced any hallucinations, delusions, or manic

episodes. Webb found that McBeath’s insight, judgment, memory, and concentration were



                                              5
all “good.” Webb further noted that “McBeath laugh[ed] and joke[d] a good bit during the

interview,” and McBeath was adamant that he was “not crazy.” Webb’s only diagnosis was

“Alcohol and Marijuana Use Disorder,” which he based on McBeath’s own descriptions of

his alcohol and drug use. Webb concluded, “McBeath is competent to stand trial and is not

criminally insane.”

¶12.   At a subsequent hearing, Webb reaffirmed the substance and conclusions of his report.

Webb testified that McBeath understood his legal situation and the charges against him.

Indeed, Webb testified that McBeath was “actually a fairly intelligent person” with no history

of mental health issues. Webb testified that McBeath was competent to stand trial. He also

testified that there was no evidence of any M’Naghten2 issue and that McBeath had no mental

health issues other than alcohol and marijuana use. Webb testified that he found “no reason

to suggest that [McBeath] was insane at the time of the [offense].” He found McBeath to be

“stone cold psychiatrically normal, except for his history of alcohol and drug abuse.”

¶13.   McBeath did not testify or call any witnesses at his competency hearing. At the end

of the hearing, the trial judge ruled that McBeath was competent to stand trial.

¶14.   Smith also filed a pretrial motion to withdraw as McBeath’s counsel on the ground

that McBeath had refused to cooperate or discuss the facts of the case. According to Smith’s



       2
          “Mississippi follows the M’Naghten test for determining whether a person was sane
at the time of the crime. Under the M’Naghten test, the accused must be laboring under such
defect of reason from disease of the mind as (1) not to know the nature and quality of the act
he was doing or (2) if he did know it, that he did not know that what he was doing was
wrong. In sum, the accused must not have known right from wrong at the time of the
offense.” Hearn v. State, 3 So. 3d 722, 738 (¶46) (Miss. 2008) (citations and quotation
marks omitted).

                                              6
motion, McBeath also claimed during one meeting that Sheriff Waddell had “stolen his

mind.” The circuit court held a hearing on Smith’s motion to withdraw on the same day as

McBeath’s competency hearing. Two lawyers testified. Both had accompanied Smith to

meet with McBeath and corroborated the substance of Smith’s motion. One confirmed that

McBeath had said something to the effect that the sheriff had stolen his mind.3 McBeath

declined to testify during the hearing on Smith’s motion to withdraw. At the conclusion of

the hearing, the trial judge found—based on Dr. Webb’s report and testimony—that McBeath

clearly had the ability to cooperate with counsel. The judge then admonished McBeath to

start cooperating with Smith, and he denied Smith’s motion to withdraw.

¶15.   McBeath’s case proceeded to trial on July 5-6, 2017. Demonta, Clay, Sciple, and

three expert witnesses testified in the State’s case-in-chief. Expert testimony established,

among other things, that Ozie’s DNA was on the shirt that McBeath wore on the night of the

murder; that shotgun hulls found in Ozie’s bedroom matched the Winchester shotgun; that

Ozie died from a single shot to the back of the head; and that the shotgun was in direct

contact with Ozie’s head when it was fired. After the State rested, McBeath declined to

testify and rested without calling any witnesses. The jury found McBeath guilty of first-

degree murder and first-degree arson. The court sentenced McBeath to life imprisonment

for murder and twenty years in the custody of the Department of Corrections for arson, with

the sentences to run consecutively. McBeath filed a motion for judgment notwithstanding

the verdict or a new trial, which was denied, and a timely notice of appeal.



       3
           Dr. Webb testified that McBeath did not make any such claim when they met.

                                             7
                                         ANALYSIS

¶16.   On appeal, McBeath asserts that his trial counsel provided ineffective assistance by

“failing to raise an insanity defense and/or present an insanity defense instruction” and by

failing to interview witnesses to “investigate” a potential insanity defense. McBeath also

argues that trial counsel was ineffective because he “fail[ed] to object to speculative opinion

testimony by police officers.” We address these issues in turn below.

¶17.   “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.” Strickland v. Washington, 466 U.S. 668, 686

(1984). To prevail on such a claim, the defendant must show both (1) “that counsel’s

performance was deficient”—i.e., “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”—and (2)

that he was prejudiced as a result—i.e., “that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Stated differently,

“[t]he defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. “If either prong [of the Strickland test] is not met, the claim fails.” Havard

v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006).

¶18.   Ordinarily, a claim of ineffective assistance should be raised in a motion for post-

conviction relief, not on direct appeal. We have explained that



                                               8
       [i]t is unusual for this Court to consider a claim of ineffective assistance of
       counsel when the claim is made on direct appeal because there is usually
       insufficient evidence within the record to evaluate the claim. Because an
       appellate court is limited to the trial record on direct appeal, issues of
       ineffective assistance of counsel are more appropriate in a motion for
       post-conviction relief. We may address such claims on direct appeal only if
       (a) the issues are based on facts fully apparent from the record or (b) the
       parties stipulate that the record is adequate, and we determine that additional
       findings of fact by a trial judge are not needed. If the record is not sufficient
       to address the claims on direct appeal, we dismiss the claims without
       prejudice, preserving the defendant’s right to raise the claims later in a
       properly filed motion for post-conviction relief.

Shinn v. State, 174 So. 3d 961, 965 (¶11) (Miss. Ct. App. 2015) (citations, quotation marks,

and alterations omitted); see also Taylor v. State, 167 So. 3d 1143, 1146 (¶5) (Miss. 2015)

(“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.”

(alterations and quotation marks omitted)).

       I.     Insanity Defense

¶19.   As noted above, McBeath claims that his trial counsel was ineffective because he

failed to pursue an insanity defense and failed to offer a jury instruction on the defense.

Under this heading, McBeath also asserts that his trial counsel was ineffective because he

“fail[ed] to investigate” a potential insanity defense. However, the State does not “stipulate

that the record is adequate” to address this claim. Nor is a constitutional violation apparent

from the face of the record. Therefore, we hold that McBeath’s claim cannot be decided on

direct appeal. The claim must be addressed, if at all, in a motion for post-conviction relief.

¶20.   To begin with, although McBeath did not testify, the record suggests that he did not


                                              9
want to pursue an insanity defense. McBeath made clear to Dr. Webb that he was “not

crazy,” and he complained that his lawyer “was not listening to” his claim that he was

innocent. As discussed above, Webb and the trial judge both concluded that McBeath was

competent to stand trial, and the judge’s ruling has not been challenged on appeal.

Competence to stand trial and sanity at the time of the offense are distinct issues. But it is

unclear that an attorney can assert an insanity defense without his client’s consent. This

appears to be an open issue in Mississippi, but most jurisdictions hold that defense counsel

may not assert an insanity defense over the objection of a competent defendant. See, e.g.,

McLaren v. State, 407 P.3d 1200, 1212 (Wyo. 2017) (collecting cases). We need not and do

not address that legal issue in this case. Rather, we simply note that the record in this appeal

does not even show that McBeath was willing to assert an insanity defense. In fact, the

record suggests that he was opposed to it.

¶21.   More important, the record on appeal does not establish any reasonable probability

that the jury would have found McBeath not guilty by reason of insanity. As discussed

above, the trial judge specifically directed Dr. Webb to evaluate McBeath’s sanity “at the

time of the alleged offense.” Webb subsequently testified that he found no evidence of

psychosis or any other possible M’Naghten issues. Webb noted that McBeath had no history

of mental illness and was not taking any medications at the time of the offense. McBeath

told Webb that “[h]e was smoking a lot of marijuana and drinking prior to his arrest.” But

Webb testified that those are “intoxication issues and not psychosis or things like that.”

Webb’s testimony is consistent with the law in this State, as well as the jury instructions



                                              10
given in this case. “[V]oluntary intoxication is not a defense to a specific intent crime, such

as murder.” Lanier v. State, 533 So. 2d 473, 478 (Miss. 1988). “An amplified restatement

of the rule is: a defendant, capable of distinguishing between right and wrong when sober,

is not entitled to an instruction submitting to the jury his inability to form the specific intent

to commit an offense because of his voluntary intoxication at the time the offense was

committed.” Lee v. State, 403 So. 2d 132, 134 (Miss. 1981).

¶22.   On appeal, McBeath ignores Dr. Webb’s uncontradicted testimony that there was no

evidence of psychosis or any other M’Naghten issue in this case. Instead, McBeath cites

Demonta’s testimony that he was “acting delusional, psychotic, and he was talking out of his

head.” McBeath also relies on Demonta’s hearsay testimony about a prior incident when

their sister allegedly “tried to tell [police] that [McBeath] was psychotic.” McBeath also

cites Clay’s testimony that he was “spacey” and mumbling incoherently at the time of his

arrest. Finally, McBeath relies on trial counsel’s concerns about his ability to assist in his

own defense and his bizarre statements about the sheriff stealing his mind. Relying on this

lay testimony, McBeath’s appellate counsel asserts that “[p]roper preparation” by trial

counsel could have established that McBeath killed Ozie because of “a severe psychotic

episode.”

¶23.   However, most of the lay testimony that McBeath cites on appeal is consistent with

Dr. Webb’s conclusion that McBeath was sane at the time of the offense and was not

suffering from psychosis or any other mental illness. Moreover, there is no evidence in the

record to show that McBeath’s unusual behavior was caused by a mental illness, much less



                                               11
a mental illness that would satisfy the M’Naghten test. That is, there is nothing to show that

McBeath was incapable of distinguishing “right from wrong at the time of the offense.”

Hearn, 3 So. 3d at 738 (¶46). Given Dr. Webb’s uncontradicted testimony that McBeath was

sane and not suffering from any mental illness at the time of the offense, there is no

“reasonable probability” that a jury would have found McBeath not guilty by reason of

insanity. Strickland, 466 U.S. at 694. Therefore, based on the evidence in the record on

appeal, McBeath cannot establish “prejudice” under the second prong of the Strickland test.

Id.; see Epps v. State, 984 So. 2d 1042, 1048-50 (¶¶22-27) (Miss. Ct. App. 2008) (holding

that the defendant was not prejudiced by his attorneys’ failure to pursue an insanity defense

because “[h]e could not fulfill the requirements of M’Naghten”). Because McBeath cannot

satisfy Strickland’s second prong on the present record, it follows that he cannot prevail on

his ineffective assistance claim in this appeal. Havard, 928 So. 2d at 781 (¶8).4

¶24.   Rather than reject McBeath’s ineffective assistance claim on the merits, we follow our

usual practice and dismiss the claim without prejudice. As discussed above, we ordinarily

decline to consider ineffective assistance claims on direct appeal. See Shinn, 174 So. 3d at

965 (¶11). In this appeal, McBeath argues in part that his counsel failed to interview

witnesses to investigate a possible insanity defense. By its nature, such a failure-to-

investigate claim cannot be evaluated on direct appeal because it alleges that counsel failed

to discover evidence that is not in the record. See Page v. State, 987 So. 2d 1035, 1037-38

       4
        “[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.” Id.

                                             12
(¶¶7-12) (Miss. Ct. App. 2008). The mere fact that an insanity defense was not asserted does

not mean that defense counsel did not investigate the issue. Id. at 1038 (¶11). “[D]efense

counsel could have investigated [McBeath’s] mental state and been unable to glean any

useful evidence for [McBeath’s] defense.” Id.

¶25.   Moreover, McBeath’s appellate counsel effectively concedes that his claim needs

some support from outside the present record. In a footnote, appellate counsel states that his

assertion that McBeath experienced a psychotic episode is based on his own review of

“several medical sources” (i.e., websites) that do not appear in the record. The present record

contains no such support for McBeath’s allegation that he suffered from a mental illness at

the time of the offense. See id. (declining to address a claim of ineffective assistance based

on counsel’s failure to pursue an insanity defense because the claim relied on a publication

that did “not appear in the record”). Finally, as noted above, the State specifically declines

to stipulate that the record on appeal is adequate to permit consideration of McBeath’s claim.

Accordingly, we dismiss McBeath’s ineffective assistance claim without prejudice to his

right to assert such a claim in a properly filed motion for post-conviction relief.5

       II.    Failure to Object

¶26.   McBeath also complains on appeal that trial counsel failed to object to “speculative

opinion testimony” by law enforcement officers. He refers to three such opinions. First,

Clay testified that although McBeath did not appear to be under the influence of alcohol at

the time of his arrest, it was “possible” that he was under the influence of drugs. Second,

       5
        McBeath may not file such a motion in the circuit court unless he obtains permission
from the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

                                              13
Sciple testified that the fire in the house was set intentionally because “[t]here was nothing

else [where the fire started] that would . . . set it on fire.” Sciple explained that the space

heater was not turned on, so it could not have started the fire. Third, Sciple testified when

McBeath told him he had taken some “bad dope” (methamphetamine), he understood

McBeath to mean that he “had mixed meth with some other kind of chemical that he wasn’t

used to.”

¶27.   McBeath devotes less than a page to this issue. He fails to develop any argument or

cite any authority to show that a timely objection to the testimony at issue would have been

sustained. That is, he simply asserts, without support, that the testimony was objectionable.

We could hold that the issue is waived for that reason. See Randolph v. State, 852 So. 2d

547, 558 (¶29) (Miss. 2002).

¶28.   Instead, because the issue is related to McBeath’s claim that trial counsel should have

investigated and asserted an insanity defense, we also dismiss this claim without prejudice.

McBeath may raise this allegation of ineffective assistance in a properly filed motion for

post-conviction relief.

                                      CONCLUSION

¶29.   McBeath’s convictions and sentences are affirmed. His allegation that trial counsel

provided ineffective assistance of counsel is dismissed without prejudice.

¶30.   AFFIRMED.

     LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.



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