Shumaker v. State
| Docket Number: | 2006-KP-00039-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-15-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of cocaine - Right to speedy trial - Ineffective assistance of counsel - Video evidence - Informant’s testimony - Admission of cocaine - Closing argument - Habitual offender status Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Concur in Part, Concur in Result 1: Barnes, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-08-2005 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: CONVICTED OF SALE OF COCAINE AS A HABITUAL OFFENDER AND SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: Forrest Allgood Case Number: 2005-0269-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | PHILLIP SHUMAKER |
PHILLIP SHUMAKER (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of cocaine - Right to speedy trial - Ineffective assistance of counsel - Video evidence - Informant’s testimony - Admission of cocaine - Closing argument - Habitual offender status |
| Summary of the Facts: | Phillip Shumaker was indicted in the Lowndes County Circuit Court for the sale of cocaine. However, at the time of Shumaker’s indictment, he was awaiting trial in Tennessee on unrelated felony charges. Shumaker was later convicted of the charges pending in Tennessee and the State of Mississippi moved to amend the indictment against Shumaker so as to charge him as a habitual offender based upon his three felony convictions in Tennessee. However, the court did not grant the State’s motion to amend the indictment at that time. The trial proceeded in Lowndes County, and Shumaker was found guilty. Before the court ruled on Shumaker’s post-trial motions, an order was entered amending the indictment to reflect Shumaker’s habitual offender status. Shumaker was then convicted and sentenced as a habitual offender to serve a term of life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Shumaker argues that the court erred in denying his motion to dismiss for failure to provide him a speedy trial because the delay violated his rights guaranteed under both federal and state law. Shumaker waived arraignment on August 15, 2005, and his trial began 106 days later. The elapsed time period does not violate the 270-day rule. Therefore, Shumaker’s assertion of a violation of his statutory right to a speedy trial fails. To determine if his constitutional right was violated, the court considers the length of delay, the reasons for delay, assertion of his right, and prejudice to the defense. Only 161 days elapsed between the time of Shumaker’s waiver of extradition and his trial, which is approximately two and one-half months shy of reaching a presumptively prejudicial amount of time. Thus, the delay was not presumptively prejudicial against Shumaker, so that the analysis goes no further. Issue 2: Ineffective assistance of counsel Shumaker argues that he received ineffective assistance of counsel due to his lawyer’s failure to file a motion to dismiss the case against him based upon the prejudice resulting from the pre-trial delay and because his court-appointed lawyer did not contact him. The record indicates that Shumaker filed his own motion to dismiss for failure to provide a speedy trial and the motion was argued by his retained attorney before his trial began. In addition, the record contains an order allowing his court-appointed attorney to withdraw and substituting another hired attorney to enter the case. Thus, the two issues upon which Shumaker bases his claim would both be without merit. Issue 3: Video evidence Shumaker argues that the video evidence showing the circumstances surrounding the confidential informant’s controlled buy of cocaine from him was erroneously entered into evidence during his trial. There is no evidence in the record, nor in Shumaker’s brief, that supports the assertion that the video evidence was tampered with or fabricated. Further, the admittance of the video into evidence was within the trial court’s discretion. Issue 4: Informant’s testimony Shumaker argues that the State’s informant was not credible and impeached himself through lies and falsehoods. When an informant testifies in open court and his background is thoroughly explored, it is up to the jury to assess his credibility. Issue 5: Admission of cocaine Shumaker argues that it was error for the court to allow the introduction of the cocaine evidence against him because the State failed to sufficiently prove chain of custody. Shumaker never objected to the introduction of the cocaine evidence at trial or to the demonstration of the chain of custody. Therefore, the issue is procedurally barred. Issue 6: Closing argument Shumaker argues that the judge erred in allowing the prosecutor to label him a “convicted drug dealer” and to argue facts which were not in evidence during the closing argument. Shumaker did not contemporaneously object to the remarks; therefore, his claim is procedurally barred. In addition, the court did not err in allowing the prosecutor to present his closing argument as he did on behalf of the State. During summation, the State properly argued its theory of the case, applied the law to the facts, and made deductions and conclusions based on the evidence presented. The language implored by the State during summation did not unjustly prejudice Shumaker. Issue 7: Habitual offender status Shumaker argues that he should not have been subject to habitual offender status in his sentencing because the trial court was without authority to allow the amendment and he did not qualify for the status. An indictment may only be amended to change the status of an accused to a habitual offender if he is given a fair opportunity to present a defense and is not unfairly surprised. Shumaker was given more than three months notice before trial that the State sought to change his status to a habitual offender based upon three prior felony convictions. This amount of forewarning can hardly be said to create an unfair surprise of the State’s intentions to change Shumaker’s status to that of a habitual offender. Furthermore, the amendment of the indictment did not affect his defense during the trial. The State introduced as exhibits during the motion hearing certified copies of three separate convictions for felonies occurring in Tennessee. While each of the three convictions was based on offenses occurring on the same day, the convictions, nonetheless, were separate convictions arising from different crimes. Thus, there is no error in qualifying Shumaker as a habitual offender. |
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