Harrell v. State
| Docket Number: | 2005-KA-01350-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 01-25-2007 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Ineffective assistance of counsel Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Diaz, Easley, Carlson and Dickinson, JJ. Dissenting Author : Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-23-2004 Appealed from: Pike County Circuit Court Judge: Mike Smith Disposition: Appellant was convicted of aggravated assault and sentenced to twenty years’ imprisonment and the payment of restitution, court-appointed attorney’s fees, and court costs. District Attorney: Dee Bates Case Number: 02-164-KB |
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| Party Name: | Attorney Name: | |||
| Appellant: | Dewayne Harrell a/k/a Dwayne Harrell |
WILLIAM E. GOODWIN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
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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: | Aggravated assault - Ineffective assistance of counsel |
| Summary of the Facts: | Dewayne Harrell was convicted of aggravated assault and sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Harrell argues that he was denied effective assistance of counsel because no witnesses were subpoenaed to court on his behalf; there was no preparation by counsel until the eve of trial and no formal motion for a continuance was made by counsel; there was improper voir dire and no request for a mistrial when jurors allegedly had improper contact with Harrell’s family; no motion for JNOV or new trial was filed by the defense; and he was not given an opportunity for allocution at his sentencing hearing, as his attorney did not appear at the sentencing hearing. Counsel’s choice of whether to call witnesses and ask certain questions falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim. Furthermore, there is no guarantee that the witness in question would have testified even if he appeared, as he could have exercised his privilege not to testify. Not only was the case set for trial on two occasions prior to the date the trial occurred, but Harrell offers no proof that counsel failed to prepare or that he had only prepared on the eve of trial. With regard to voir dire, counsel for Harrell actively participated in exercising peremptory challenges and striking jurors for cause. After review of the record, including voir dire of the jury, it cannot be said that counsel’s conduct during voir dire permeated the entire trial with obvious unfairness. With regard to the failure to request a mistrial, since the trial court found that no prejudice resulted from counsel’s failure to move for a mistrial, this failure does not constitute ineffective assistance by counsel. With regard to whether a motion for JNOV or new trial was filed, order in the record denying such evidences the trial court considered and rejected Harrell’s request. With regard to the sentencing hearing, Harrell offers no proof that he would have called witnesses or desired to present mitigating circumstances. He also offers no evidence in support of his contention that the attorney was ineffective during the sentencing hearing but only an unsupported assertion. Thus, Harrell has failed to prove his claim of ineffective assistance of counsel. |
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