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08/09/95 ARMSTRONG v. STATE

August 09, 1995

ARMSTRONG
v.
STATE



Before McMILLIN, P.j., King, And Payne, JJ.

The opinion of the court was delivered by: King, J., For The Court

WILLIAM GLENN ARMSTRONG, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOHN WHITFIELD

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

BY: PAT FLYNN

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: SEXUAL BATTERY, 30 YEARS W/O PAROLE; TOUCHING OF A CHILD FOR

LUSTFUL PURPOSES, 10 YEARS W/O

PAROLE; SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER FOR

A TOTAL OF 40 YEARS

DISPOSITION AFFIRMED-6/23/98

William Glenn Armstrong was convicted of sexual battery and touching a child for lustful § purposes in violation of Miss. Code Ann. 97-3-95 (c) (Rev.1994) and 97-5-23 (Rev.1994), respectively, and sentenced to serve terms of thirty years and ten years, respectively, in the custody of the Mississippi Department of Corrections, without the benefit of parole. On appeal, Armstrong argues six points of error:

(1) Trial counsel was ineffective and the defendant was denied his right to competent counsel guaranteed under the Sixth Amendment to the United States Constitution.

(2) The defendant's request for continuance of the trial should have been granted.

(3) Jury Instruction S-7, voluntary intoxication, should not have been given.

(4) The sentence was improper and an ex-post facto application of the statute.

(5) The lower court erred in failing to instruct the jury that they should not consider the defendant's alleged attempt to penetrate the minor with his penis in determining guilt or innocence on the sexual battery charge.

(6) The verdict of guilt on the count of sexual battery was against the overwhelming weight of the evidence and the defendant's motion for judgment notwithstanding the verdict should have been granted.

Finding no error we affirm the convictions and sentences.

FACTS

On April 23, 1994, Armstrong arrived at his home in Gulfport, Mississippi at approximately 6:00 p.m. Armstrong's son, Dalton, his nephew, Chris Armstrong, and his four step children were home when he arrived. Later in the evening, Armstrong and Chris went to a couple of bars for drinks. According to Chris, Armstrong got "pretty well drunk and intoxicated". The two men arrived back home before Annie Armstrong, Armstrong's ex-wife, left at 10:00 p.m. for her night shift at the Grand Casino.

Chris fell asleep in the boys' bedroom. Laura *fn1 , one of Armstrong's stepchildren, Dalton and one of Laura's sisters, were asleep in another bedroom. Laura testified that at approximately 12:59 a.m., Armstrong came into her bedroom down the hall and picked her up. As he took her to his bedroom, she screamed. Chris later testified that he heard someone scream as he saw Armstrong carry that person down the hall, but he was not sure if the person was Laura or Dalton who sometimes had asthma attacks. Chris said that he fell back asleep shortly thereafter.

When they got into the bedroom, Armstrong pushed Laura's lip into her teeth and told her to stop screaming. Laura testified that upon reaching the bedroom, Armstrong threw her on the bed and told her to take off her underwear. As he got on top of her, he attempted to push his penis into her vagina. Unsuccessful in his attempt, Armstrong then forced her to massage his penis until he ejaculated. At this point, he wiped her hands on the comforter. While in the bed, Armstrong also touched her chest with his hand and touched her vaginal area with his tongue. Laura eventually asked if she could leave the room. Armstrong allowed her to leave, but threatened to kill her if she told anyone about what had happened.

Later that morning, Laura told her mother about the incident. They reported this to the police and went to the hospital to have Laura examined. After examining her, Dr. Ward, an emergency room physician, observed a small abrasion to her top lip and redness in her vaginal area. It was his that she had experienced some type of sexual assault.

Armstrong was arrested that day. The Gulfport Police Department collected samples of blood, hair, saliva, and seminal fluid from Armstrong. They retrieved the bed sheets and comforter from Armstrong's bedroom and the shirt Laura wore during the alleged sexual assault. Sherry Hayman, a forensic serologist employed by the Mississippi Crime Laboratory, analyzed the blood, saliva, sheets, comforter and Laura's shirt. She determined that the seminal fluid on the comforter and fitted sheet may have been Armstrong's. However, she could not determine when the seminal fluid was placed there. Seminal fluid was not found on Laura's shirt.

Armstrong denied that the incident took place. He testified that he had gone out to have drinks earlier in the evening with Chris and was probably asleep during this time of the morning. He indicated that he might have gotten up to check on Dalton, but could not remember. On August 7, 1996, Armstrong was tried and convicted of sexual battery and touching a child for lustful purposes. His motions for a new trial and judgment notwithstanding the verdict were denied. Armstrong now appeals his convictions and sentences.

ISSUES

I. TRIAL COUNSEL WAS INEFFECTIVE AND THE DEFENDANT WAS DENIED HIS RIGHT TO COMPETENT COUNSEL GUARANTEED UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Armstrong argues that because his counsel, Attorney Steve Maggio, a Harrison County public defender, failed to prepare a defense or investigate his case, he was denied his right to effective assistance of counsel. We disagree. When judging an attorney's performance, the proper standard is that of reasonably effective assistance. In Strickland v. Washington , 466 U.S. 668 (1984), the Supreme Court set forth the following two-prong test for determining effective assistance of counsel: (1) Was counsel's performance deficient?

(2) Did the deficient performance prejudice the defense so as to deprive the defendant of a fair trial?

See also Wilcher v. State , 479 So.2d 710, 712 (Miss.1985); Stringer v. State , 454 So.2d 468, 477

(Miss.1984).

Applying the first prong of the test, we consider whether Attorney Maggio's performance was deficient. In doing so, we presume that Attorney Maggio's conduct falls within the wide range of effective assistance. Strickland , 466 U.S. at 689. To overcome this presumption, Armstrong must identify specific deficiencies in ...


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