Timms v. State
| Docket Number: | 2009-KA-00955-COA | |
| Oral Argument: | 08-08-2010 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-15-2011 Opinion Author: Irving, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Possession of firearm by convicted felon & Possession of stolen firearm - Prosecutorial misconduct - Ineffective assistance of counsel Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee and Roberts, JJ. Dissenting Author : Carlton, J. Concur in Part, Concur in Result 1: Maxwell, J., without separate written opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-11-2009 Appealed from: HOLMES COUNTY CIRCUIT COURT Judge: JANNIE M. LEWIS Disposition: CONVICTED OF COUNT I, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED TO FIVE YEARS, WITH THREE YEARS SUSPENDED AND TWO YEARS TO SERVE, AND COUNT II, POSSESSION OF A STOLEN FIREARM, AND SENTENCED TO FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: JAMES H. POWELL III Case Number: 12,100 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Eddie Timms |
LISA M. ROSS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: STEPHANIE B. WOOD | ||
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| Topic: | Possession of firearm by convicted felon & Possession of stolen firearm - Prosecutorial misconduct - Ineffective assistance of counsel |
| Summary of the Facts: | Eddie Timms was convicted of possession of a firearm by a convicted felon and possession of a stolen firearm. The circuit court sentenced Timms to five years for the possession of a firearm by a convicted felon, with three years suspended and two years to serve, and to five years for the possession of a stolen firearm. Timms appeals. |
| Summary of Opinion Analysis: | Issue 1: Prosecutorial misconduct Timms argues that the prosecutor improperly commented on Timms’s decision to not call three people as witnesses. Timms’s trial attorney did not object to the prosecutor’s comments but, instead, attempted to explain why the witnesses had not been called. The failure of either party to examine a witness equally accessible to both parties is not a proper subject for comment before a jury. In this case, the prosecutor’s comments were improper. There is no indication that any of the named individuals were any more accessible to Timms than they were to the State; therefore, the prosecutor should not have commented on Timms’s failure to call those witnesses. In the absence of an objection by Timms, Timms can succeed on this claim only if the improper comments rise to the level of plain error. Since the case is being remanded for a new trial, the Court need not determine if the comments were plain error. Issue 2: Ineffective assistance of counsel Timms argues that his trial counsel did not seek a stipulation as to Timms’s status as a convicted felon prior to trial, failed to object when the State introduced evidence regarding Timms’s criminal history, asked a witness to provide hearsay evidence prejudicial to Timms, and failed to investigate Timms’s criminal history. The record in this case is sufficient to allow full consideration of Timms’s ineffective-assistance-of-counsel claims. Timms was charged with possession of a firearm by a convicted felon. Timms had previously been convicted of possession of cocaine, a felony. Therefore, Timms was entitled to a stipulation as to his status as a convicted felon. Undoubtedly, trial counsel is not necessarily ineffective for failing to seek a stipulation. However, there are several circumstances that make it clear that Timms’s counsel was ineffective for failing to do so. Timms’s trial counsel was mistaken as to Timms’s criminal history. Timms’s counsel asked Timms and other witnesses about a prior conviction for possession of a stolen firearm; however, Timms had never been convicted of possessing a stolen firearm. He was charged with possession of a stolen firearm, but never convicted of that crime. Since Timms was never convicted of possessing a stolen firearm, the jury should have never learned that he was charged with that crime. Timms was especially prejudiced by this inappropriate evidence because of the similarity of his new charges. Timms’s trial counsel apparently knew nothing of Timms’s actual criminal history, allowed the State to introduce evidence of crimes that Timms had not been convicted of, failed to seek a stipulation as to Timms’s status as a previously convicted felon, and then compounded these errors by questioning Timms and other witnesses as though Timms had been convicted of possessing a stolen firearm when he had not. Therefore, the case is reversed and remanded for a new trial. |
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