BEFORE DAN LEE, P.J., SULLIVAN & ZUCCARO, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
Frederick S. Marks was tried and convicted by the Circuit Court of Harrison County, Mississippi, for the murder of his wife, Mary Woods Marks. He was sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections.
At the time of her death Mary Woods Marks was separated from the defendant. Frederick Marks had just been released from a two day alcohol detoxification program at the local Veterans Administration Hospital.
On his release from the hospital Marks frequented some local watering holes, had several alcohol drinks, managed to purchase himself a knife, and also to arrange a meeting with his wife.
Marks arrived at his wife's home approximately 5 1/2 hours after he made his first watering hole stop. Mrs. Marks was not at home when he arrived at her house, but Ronald Woods, her retarded 18 year old son, was. Ronald let Mr. Marks inside the home to wait.
Upon Mrs. Marks' return, a brief conversation ensued between the parties which quickly led to a quarrel. Defendant's version is that his wife took control of the knife, and when he attempted to get it back, he was cut on the hand. Mrs. Marks then fled the trailer with Marks in pursuit. At some point outside the trailer Marks regained possession of the knife and began to stab his wife. The autopsy report revealed that there were 19 stab wounds including penetration of the left lung, heart, diaphragm,
Defendant immediately fled into the woods but was apprehended minutes later. While in custody Marks made several statements indicating that he knew of, and was involved in, his wife's death.
At trial, the State presented evidence of the defendant's past treatment of the victim, and there was also testimony of eyewitnesses who observed the defendant over the victim's body with his arm going up and down; one witness actually saw the knife in his hand. Various investigating officers testified as to the post-arrest events, including statements made by the defendant. The defendant testified in his own behalf.
The defendant denied ever intending to kill his wife. His claim was that he acted in the heat of passion. The jury was instructed on murder and manslaughter, and they returned a guilty verdict for the crime of murder. Marks assigns the following errors:
1. The judgment of the lower court should be reversed since the appellant was denied his sixth and fourteenth amendment rights to effective assistance of counsel at trial;
2. The lower court erred in admitting State's exhibits 2, 3, 7, 8, 9, 32, 33, 34, 35 and 36, as each was either cumulative or not probative and unduly prejudicial;
3. The lower court erred in failing to grant the appellant's motion for mistrial after the witness Leslie testified to acts of the appellant other than those for which he was on trial in violation of the court's order in limine;
4. The lower court erred in admitting the hearsay testimony of several witnesses concerning out of court statements made by Ronald Woods; and
5. The lower court erred in refusing to declare a mistrial due to statements made by the prosecutor in his closing argument concerning the appellant's potential sentence.
THE JUDGMENT OF THE LOWER COURT SHOULD BE REVERSED SINCE THE APPELLANT WAS
DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
At the outset it should be pointed out that the attorney for Marks at trial was allowed to withdraw, and counsel on appeal did not represent him at the trial stage. Claims of ineffective assistance of counsel in this State are consistently handled under the two part test of Strickland v. Washington 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), with its accompanying presumptions. Under the Strickland formula, the defendant must show that (1) his counsel's performance at trial was deficient, and (2) that but for counsel's deficient performance, the result of the trial would have been different.
Frederick Marks alleges three instances of ineffective assistance: (1) counsel's failure to follow up his motion for appointment of additional counsel; (2) counsel's failure to call the defendant's treating physician at the VA Hospital to testify concerning the defendant's state of mind on the day in question; and (3) counsel's elicitation from the defendant, on direct examination, of his prior criminal activities.
At the trial, defense counsel withdrew his motion for the appointment of additional counsel because he had successfully developed the case, thereby obviating the need for second counsel. Also, the trial judge limited the prosecution to having only one person arguing a particular point.
Mississippi Code Annotated, Section 99-15-17 (Supp. 1987), does allow for the appointment of two attorneys in capital cases. Marks' was a capital case for it carried a penalty of life imprisonment. Mississippi Code Annotated, Section 1-3-4 (Supp. 1987). However, Section 99-15-17 "does not mandate that two attorneys be appointed." Smith v. State, 445 So.2d 227, 230 (Miss. 1984).
This record does not disclose to this Court that Marks was prejudiced or that the trial would have differed in result had two attorneys been used. The case was not so complex that one attorney could not provide a legally sufficient defense.
In his second allegation of ineffectiveness, the defendant asks us to reverse his conviction because no expert testimony was offered on the issue of his capacity
to commit premeditated murder. Marks appears to be arguing that his diminished capacity made this a crime of passion and not premeditation. Therefore, his treating physician at the VA Hospital should have been called as a witness to testify concerning his diminished capacity. This argument by the defendant assumes that the doctor would have testified favorably. Unfortunately, the record does not reveal what testimony the doctor would have given.
The record does, however, show that a psychiatric examination was performed on the defendant, the results of which are not shown. We do know that the defendant did not plead an insanity defense. It is equally clear that his alleged diminished capacity, if any, resulted in part, if not in whole, from his voluntary intoxication, and that is not a defense in this case. Smith v. State, 445 So.2d at 231.
We are limited to the record before us, and therefore, should not engage in hypothetical assumptions concerning the value of an uncalled witnesses. Vinson v. Johnson, 493 So. 2d 947, 950 (Miss. 1986). Marks does not show, other than hypothetically, how his attorney's decision not to call the doctor was a professionally unreasonable error resulting in prejudice to his defense.
Marks' third complaint of ineffective assistance was the action of his trial counsel by exposing the defendant's entire criminal record on direct examination. Marks complains that certain otherwise inadmissible matter was exposed. Specifically, Marks complains of the following matters brought out on direct examination:
(1) Prior DUI convictions in Nevada and Gulfport.
Marks' trial was held in August, 1985, before the effective date of the Mississippi Rules of Evidence. Under pre-rules of evidence law, a DUI conviction was regarded as a misdemeanor of sufficient gravity so as to allow its use for impeachment purposes; thus, the prohibition in Mississippi Code Annotated, Section 63-9-15 (1972), relating to misdemeanor traffic offenses does not apply to DUI convictions. Weitz v. State, 503 So. 2d 803, 811 (Miss. 1987). Therefore, defense counsel did not commit a professionally unreasonable error by bringing these convictions to the jury's attention.
(2) The time served in prison for two prior felony convictions.
Under the law applicable at the time of this trial, the credibility of the defendant could have been impeached by reference to his former felony convictions, but it was not permissible to inquire into the punishment given as a result of these convictions. Murray v. State, 266 So.2d 139, 141 (Miss. 1972), cert. denied, 411 U.S. 907 (1973). Therefore, the defense attorney did elicit information that was otherwise inadmissible.
However, this error is controlled by the principle announced in Rooney v. State, 167 Miss. 532, 142 So. 474 ...