Nichols v. State


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Docket Number: 2002-KP-00230-COA
Linked Case(s): 2002-CT-00230-SCT ; 2002-CT-00230-SCT ; 2002-KP-00230-COA

Court of Appeals: Opinion Link
Opinion Date: 08-05-2003
Opinion Author: Bridges, J.
Holding: Affirmed

Additional Case Information: Topic: Murder - Change of venue - Peremptory instruction - Void indictment - Jurisdiction - Ineffective assistance of counsel
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 01-04-2002
Appealed from: Simpson County Circuit Court
Judge: Robert G. Evans
Disposition: MANSLAUGHTER - SENTENCED TO SERVE A TERM OF SEVENTEEN YEARS IN THE MDOC.
District Attorney: Eddie H. Bowen
Case Number: 2001-43-K

  Party Name: Attorney Name:  
Appellant: Shad Edward Nichols




SHAD EDWARD NICHOLS (PRO SE) DANIEL DEWAYNE WARE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART  

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Topic: Murder - Change of venue - Peremptory instruction - Void indictment - Jurisdiction - Ineffective assistance of counsel

Summary of the Facts: Shad Nichols was convicted of murder by culpable negligence and was sentenced to seventeen years. Nichols appeals.

Summary of Opinion Analysis: Issue 1: Change of venue Nichols argues that the judge erred when he denied Nichols's motion for a change of venue, because the newspapers had prejudiced the people in the county against him. When a prospective juror assures the court he can be impartial, this assurance is entitled to considerable deference. The record clearly supports a finding that a fair and impartial jury was actually selected. The jury panel was asked if it had heard anything about the case or Nichols either in the newspaper or otherwise that would prevent it from being fair and impartial jurors. There was no response. The jurors were asked again by the judge if any of them could not decide the case strictly upon the evidence and the law. There was no response. Therefore, Nichols has not met his burden of showing that the judge abused his discretion when he overruled Nichol’s motion for change of venue. Issue 2: Peremptory instruction Nichols argues that the judge erred when he denied Nichols's request for a peremptory instruction, because the proof did not support a finding of culpable negligence. Culpable negligence is the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the willful creation of an unreasonable risk thereof. It is perfectly clear that the evidence in the record was sufficient to prove Nichols was guilty. A reasonable fair minded juror acting in good faith could have found that the Oxycontin given by Nichols to the victim caused her death. Issue 3: Void indictment Nichols argues that the indictment was void because it failed to put him on notice of the charge against him. However, Nichols failed to challenge the indictment before the trial court and is procedurally barred from raising the issue on appeal. Issue 4: Jurisdiction Nichols argues that the indictment was defective because it did not identify the judicial district in which Nichols is alleged to have committed the crime. Nichols does not indicate when he raised the issue before the circuit court. Therefore, he is procedurally barred from raising this issue. Issue 5: Ineffective assistance of counsel Nichols argues that he received ineffective assistance of counsel, because defense counsel failed to demur to the indictment because it failed to identify the judicial district in which the crime occurred, failed to inform him of the status of the case, failed to file a speedy trial motion on charges pending against Nichols, and failed to file a notice of appeal or move for an appeal bond. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. The crime Nichols is charged with occurred in Simpson County. Since Simpson County is not divided into separate judicial districts, whether the indictment failed to state the judicial district where the crime occurred is irrelevant. The record does not support a finding, and Nichols does not allege, that he would have prevailed on a claim alleging denial of a speedy trial. In addition, Nichols's conviction is on appeal so he has failed to demonstrate prejudice due to the notice of appeal or appeal bond.


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