DeLoach v. State
| Docket Number: | 2006-KA-02103-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-18-2008 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary of church - Lesser-included offense instruction - Ineffective assistance of counsel Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, 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: 11-29-2006 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: CONVICTED OF BURGLARY OF A CHURCH AND SENTENCED TO SERVE FOURTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Forrest Allgood Case Number: 2005-0461-CR1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JERRY DEMETRIUS DELOACH |
W. DANIEL HINCHCLIFF |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DESHUN T. MARTIN | ||
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| Topic: | Burglary of church - Lesser-included offense instruction - Ineffective assistance of counsel |
| Summary of the Facts: | Jerry Deloach was convicted of burglary of a church and sentenced to serve fourteen years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Lesser-included offense instruction Deloach’s counsel submitted a jury instruction for the crime of vandalism, which was treated as a lesser-included offense instruction. Deloach argues that the trial court erred in failing to submit this instruction to the jury because the evidence showed that Deloach intended to vandalize, not steal from the church. In order for a lesser-included jury instruction to be submitted to the jury, the defendant must be able to point to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser-included offense. Deloach testified on the stand that he was not in the vicinity of the church during the burglary. Given Deloach’s testimony, there was no evidentiary foundation to support the jury instruction that Deloach vandalized the outside of the church instead of burglarizing the church. Issue 2: Ineffective assistance of counsel Deloach argues that his trial counsel’s actions during trial were per se ineffective assistance of counsel, because the defense attorney denounced Deloach’s testimony as false. From the record, Deloach fails to show that, but for his attorney’s errors, there was a reasonable probability that he would have received a different result. Deloach’s taped confession, where he actually confessed to committing the burglary, is the most damaging evidence. The circumstantial evidence is very damaging as well. Thus, Deloach fails to prove that his trial counsel was so deficient that the trial judge should have, sua sponte, declared a mistrial based on ineffective assistance of counsel. |
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