McCoy v. State
| Docket Number: | 2006-KA-00034-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-17-2007 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of cocaine - Sufficiency of evidence - Ineffective assistance of counsel - Prosecutorial misconduct - Prior convictions - M.R.E. 609(a) - Habitual offender status - Right to counsel Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-21-2005 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: CONVICTION OF SALE OF COCAINE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER. District Attorney: Forrest Allgood Case Number: 2005-0061-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | KEVIN MCCOY |
WILLIAM L. BAMBACH |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JACOB RAY |
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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 - Sufficiency of evidence - Ineffective assistance of counsel - Prosecutorial misconduct - Prior convictions - M.R.E. 609(a) - Habitual offender status - Right to counsel |
| Summary of the Facts: | Kevin McCoy was convicted of sale of cocaine and sentenced to life in prison as a habitual offender. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence McCoy challenges the sufficiency of the evidence. Although McCoy complains at length regarding the quality of the videotape that was shown to the jury, the jury was entitled to give the video footage (or lack thereof) whatever weight it believed was proper. Furthermore, McCoy’s attorney pointed out the poor quality of the video footage to the jury during her closing remarks and urged the jury to take that into account in determining whether McCoy was guilty. In addition, the video footage was far from the only incriminating evidence presented to the jury. While the videotape of the controlled buy in question was not perfect, the evidence was such that a reasonable jury could have found McCoy guilty. Issue 2: Ineffective assistance of counsel McCoy argues that his attorney was ineffective for failing to fully examine the admissibility of McCoy’s prior convictions, thus leaving him unable to testify in his own behalf; failing to object to improper conduct by the prosecutor; failing to challenge for cause or use peremptory strikes against various jurors; disclosing confidential information for her own self interest; and failing to advise McCoy of the effect that his prior convictions would have on his sentencing. Because there is no evidence that any deficiency in counsel’s conduct had any impact on McCoy’s defense or the outcome of his trial, his claim fails. Issue 3: Prosecutorial misconduct McCoy argues that the prosecutor acted improperly in asking the jury to believe a witness’s account of the transaction while questioning his credibility. A review of the State’s closing argument reveals that the prosecutor took the position of admitting to the jury that the witness had most likely lied about his own past drug use, but that the jury should believe him regardless because he had no reason to lie about whether he had purchased cocaine from McCoy. In context, this tactic did not constitute improper conduct by the State. The prosecutor did make several improper remarks during closing argument without provocation or justification. The remarks are similar to other remarks that the Mississippi Supreme Court has repeatedly condemned as improper, because the statements were an attempt to use emotion to overcome possible reluctance in the jury, making a baseless appeal to the jurors that they needed to vote as representatives of the community and not based on the evidence that was before them. However, they do not constitute reversible error since there was sufficient evidence for the jury to find McCoy guilty of the sale of cocaine. Issue 4: Prior convictions McCoy argues that the court erred in admitting his three prior felony convictions. Two of the convictions were for armed robbery, and the last was for possession of cocaine. The court did not abuse its discretion in ruling that McCoy’s prior convictions would be admissible for impeachment purposes. As the court pointed out, McCoy’s credibility would be central. In addition, the court specifically addressed the Peterson factors and how they related to McCoy’s convictions. Therefore, the convictions were properly admitted under M.R.E. 609(a). Issue 5: Habitual offender status McCoy argues that the convictions that were used to enhance his status to that of a habitual offender were incurred when he was under the age of eighteen and should not have been used for that reason. McCoy has provided no case law to support his assertion that his prior convictions should not have been used to enhance his habitual offender status. Furthermore, a review of the prior convictions used for enhancement shows that McCoy was treated as an adult in those convictions. Issue 6: Right to counsel McCoy argues that the court erred in not inquiring as to whether he was satisfied with his appointed counsel, in not granting a continuance for McCoy to retain private counsel, and in not informing McCoy of his right to proceed pro se. There is no evidence in the record that McCoy was dissatisfied with his counsel or that he wished to proceed pro se. Under the circumstances, the court did not err in ordering McCoy to proceed to trial with his court-appointed attorney. No other attorney had ever entered an appearance or filed a motion on McCoy’s behalf, and appointed counsel indicated that no other attorney had ever contacted her in regard to McCoy’s representation. |
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