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RAY M. WALDROP a/k/a DAVID RAY WALTERS v. STATE OF MISSISSIPPI

APRIL 22, 1987

RAY M. WALDROP a/k/a DAVID RAY WALTERS
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J., ROBERTSON AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, involving the manufacture of methamphetamine, a schedule II controlled substance, comes to the Court from the Circuit Court of Leake County. Upon conviction, the trial court sentenced the defendant, Ray M. Waldrop, to serve thirty (30) years without benefit of probation or parole. We reverse.

On September 14, 1984, Leake County Sheriff Joe Mack Thaggard and four state criminal investigators, arrested Ray M. Waldrop on a parole violation, pursuant to a teletype from the National Crime Information Center, (NCIC). Prior to the arrest, police also had information that Waldrop was an acquaintance of an area resident, Mary Lube, and ran a drug laboratory.

 A few hundred yards from the arrest scene, a home construction site, police passed a mobile home where Lube's automobile had previously been seen parked in the drive. Louisiana State Police reported that the mobile home, owned by Lube, was Waldrop's residence before its move to Mississippi in August, 1984. On the day of the arrest, police again passed the mobile home from which emanated a" terrible odor ", similar to ether, a compound in the

 manufacture of methamphetamine.

 Though Waldrop possessed the mobile home's keys, he denied, following his arrest, any ownership interest in the trailer, stating that it belonged to Lube. Believing a consent to search less difficult to obtain than a warrant, the police asked Waldrop of Lube's whereabouts. Subsequently, Deputy Bobby Brown transported Lube to the sheriff's office, where, following Miranda warnings, she signed a consent to search; yet, according to the officers, Lube was not under arrest at this time. However, it appears she had been transported without her consent. At the least, she didn't hitchhike a ride with the deputy.

 Armed with the consent form, the police entered the mobile home, finding laboratory equipment as well as methamphetamine manufactured sometime within the preceding twenty-four hour period. Significantly, Waldrop told police that he had been at the mobile home as recently as three hours prior to his arrest, and six hours prior to the search, though he denied that there had been any laboratory apparatus or odor present at the time.

 I.

 During oral arguments, this Court allowed the defense to raise the issue of ineffective assistance of counsel at trial, permitting the State to respond, in turn. *fn1 Properly before the Court then, under Miss. Sup. Ct. Rule 6(b), we discuss the issue, and error, here.

 Regretably, the trial transcript is replete with instances of deficient performance, sufficient to prejudice Waldrop's defense. For example, without objection, the State elicited testimony from Sheriff Thaggard that United States marshals were seeking Waldrop on a parole violation (i.e., possession of counterfeit plates) and for escape from such parole. Later, when the State tendered the teletype for identification, defense counsel objected, stating that the witness had testified incorrectly as to the NCIC report. Understandably, the trial judge then asked," Is that your only objection? "When defense counsel answered in the affirmative, the trial judge overruled the objection, allowing it to be marked. Afterwards, defense counsel himself introduced the NCIC report into evidence, so as to question another witness on its contents more fully.

 Elsewhere in the record defense counsel questioned Sheriff Thaggard and two other witnesses concerning reports

 from the Louisiana State Police that Waldrop, while in Louisiana, illegally manufactured methamphetamine. Undoubtedly, such allusion to other crimes was highly prejudicial to Waldrop's defense.

 Moreover, defense counsel engaged in other conduct manifesting his ineffectiveness. Examples include numerous frivolous motions, repeated refusals to follow rulings and instructions from the bench, and even a request for elementary information, (" How do I introduce [an exhibit], Your Honor? ").

 It is by this time well-established that the Sixth Amendment guarantees to criminal defendants not only the right to assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963), but requires that assistance to be legally" effective. "Concomitantly, this Court has embraced a right to effective assistance of counsel inherent in the due process clause of the state constitution, Art. 3, 14, Miss. Const. of 1890, and has traditionally reversed convictions evidencing inadequate defense. Specifically, in Brooks v. State, 209 Miss. 150, 154, 46 So. 2d 94, 96 (1950), the conviction was reversed where defense counsel made no objection to" highly improper and prejudicial "tactics and questions of the State; therein we noted that" If objections had been made on the questions pointed out above, and such objections had been overruled, a reversal would be obvious. "Likewise, in Stewart v. State, 229 So. 2d ...


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