Lattimore v. State


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Docket Number: 2008-CP-01760-COA
Linked Case(s): 2008-CP-01760-COA

Court of Appeals: Opinion Link
Opinion Date: 02-09-2010
Opinion Author: King, C.J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Evidentiary hearing - Ineffective assistance of counsel
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 09-30-2008
Appealed from: WASHINGTON COUNTY CIRCUIT COURT
Judge: Margaret Carey-McCray
Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED
Case Number: 2007-255(CM)(W)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: TERRY LEE LATTIMORE A/K/A TERRY L. LATTIMORE, SR.




PRO SE



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  

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Topic: Post-conviction relief - Evidentiary hearing - Ineffective assistance of counsel

Summary of the Facts: Terry Lattimore was convicted of capital murder and sentenced to life in prison. He appealed, and his conviction and sentence were affirmed. Lattimore filed an application for leave to proceed in the trial court with a motion for post-conviction relief, which was granted. The trial court denied Lattimore’s motion for post-conviction relief. Lattimore appeals.

Summary of Opinion Analysis: Issue 1: Evidentiary hearing Lattimore argues that the trial court erred by denying his motion for post-conviction relief without requiring the State to file an answer, without an evidentiary hearing, and without having an opportunity to conduct discovery. There is no automatic right to an evidentiary hearing under the Post-Conviction Collateral Relief Act. It is clear from the record that the trial court considered Lattimore’s motion on the merits and found that an evidentiary hearing was not necessary. Issue 2: Ineffective assistance of counsel Lattimore argues that his appellate counsel was ineffective because he failed to properly present Lattimore’s argument on direct appeal regarding the admission of his pretrial identification. The record shows that Lattimore’s trial counsel objected to the introduction of evidence concerning Lattimore’s pretrial identification, and the trial court overruled the objection. Lattimore’s appellate counsel raised this issue on direct appeal, and the Court found that it amounted to harmless error. Lattimore argues that his appellate counsel failed to note his trial counsel’s failure to investigate and challenge a potential juror’s inclusion on the jury. However, there is nothing in the record confirming that the potential juror actually served on the jury. Lattimore argues that his appellate counsel failed to cite his trial counsel’s error in not litigating his claim of an illegal search and seizure of his vehicle. Lattimore failed to raise a claim of illegal search and seizure during the trial, and he failed to raise this claim on direct appeal. In addition, it is permissible for officers to conduct an inventory search of a vehicle when the circumstances require it to be impounded. Lattimore argues that his trial counsel and his appellate counsel failed to advance his argument that the trial court erred by admitting the metal pipe into evidence as the purported murder weapon. However, the supreme court found that the State’s act in introducing the metal pipe as the purported murder weapon was proper.


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