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BOBBY CALDWELL v. STATE OF MISSISSIPPI

DECEMBER 18, 1985

BOBBY CALDWELL
v.
STATE OF MISSISSIPPI



EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

ON MOTION TO VACATE OR SET ASIDE JUDGMENT

Bobby Caldwell was convicted of capital murder in the Circuit Court of DeSoto County, Mississippi and sentenced to death. This Court affirmed the sentence and conviction in Caldwell v. Mississippi, 443 So.2d 806 (Miss. 1983); however, the United States Supreme Court vacated the sentence of death in Caldwell v. Mississippi, ___ U.S. ___, 105 S. Ct. 2633, 86 L.Ed.2d 231 (1985). Caldwell now comes before this Court to move that the judgment of conviction of capital murder be vacated or set aside. We have carefully reviewed each of his allegations, find that they are without merit, and hereby overrule the motion.

 THE USE OF PEREMPTORY CHALLENGES TO STRIKE BLACKS AND WOMEN

 FROM THE JURY.

 Caldwell alleges that the prosecution's use of peremptory challenges to strike all blacks and several women from the group of potential jurors violated federal and state constitutional law. We find that Caldwell has not shown a continuous and systematic exclusion of blacks or women from jury service in DeSoto County, Mississippi. Under the rationale of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L.Ed.2d 759 (1965), the Mississippi Supreme Court has denied similar claims in Belino v. State, 465 So.2d 1043 (Miss. 1985) and Ward v. State, 461 So.2d 724 (Miss. 1984). In Ward, the Court held that:

 Absent proof of continuous and systematic and purposeful use of peremptory challenges by the prosecution in Tate County to exclude black persons from juries, this claim simply is not viable.

 461 So.2d at 726. This allegation is without merit.

 CONDUCT OF PROCEEDINGS OUTSIDE THE PRESENCE OF THE DEFENDANT

 No important proceeding regarding a criminal trial may be held without the presence of the defendant or his counsel. Strickland v. State, No. 55,056, decided October 2, 1985 (not yet reported); Allen v. State, 384 So.2d 605 (Miss. 1980). Both need not be present; where the defendant is represented by counsel, the attorney may represent the defendant at any critical stage in the proceedings, and the defendant's absence will not violate his constitutional rights. Ford v. State, 170 Miss. 459, 155 So. 220 (1934).

 An exception to this general rule is where the presence of the defendant is necessary to prevent prejudice to him. That exception was recognized in Myers v. State, 254 So.2d 891 (Miss. 1971), where the Court held that a hearing on the defense attorney's motion to withdraw as counsel required the defendant's presence. Bobby Caldwell cites several instances in his motion where matters were argued by attorneys for both sides outside his presence. He claims that he was prejudiced thereby; however, he does not cite a single instance in his motion in which his presence would have made a difference. Caldwell has not asserted that he could have interjected additional information which would have resulted in different results in those proceedings, nor has he indicated, in any way, that consultation with his counsel during those proceedings would have been beneficial.

 Since Bobby Caldwell was represented adequately by defense counsel at these proceedings, and since has has not demonstrated prejudice resulting from his absence, we find this assertion to be without merit.

 INEFFECTIVE ASSISTANCE OF COUNSEL

 Caldwell next argues that his counsel was constitutionally inadequate. The test to determine the adequacy of counsel, as enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), was ...


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