Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: Payne, J
KENNY RAY MOORE, 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
DATE OF JUDGMENT: 02/19/96
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL -FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 12 YEARS IN THE MDOC.
DISPOSITION AFFIRMED - 3/10/98
Kenny Ray Moore was convicted in the Circuit Court of Scott County on a charge of aggravated assault and was sentenced to a term of twelve years in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment rendered against him, he perfected his appeal to this Court. After reviewing the facts and the law applicable to this case, we affirm the conviction below. FACTS Kenny Ray Moore and Kimberly Ficklin were boyfriend and girlfriend. From this bond, the couple produced a child named Shakkur. From this point on, the testimony by and large is conflicting.
Kenny Ray's rendition of the facts, as per his testimony, was that he showed up at the Ficklin's home in order to visit his son. He was armed with a gun but had this protection in order to fend off Kimberly's father who, according to Kenny Ray, had previously threatened him. Kenny Ray explained that he and his estranged girlfriend had an argument, wrestled, and due to this physical confrontation, his gun accidentally went off.
Kimberly tells a different story. At approximately 11:00 a.m. on March 29, 1995, she was sitting in the living room of her mother's house in Forest, with her son resting in her lap. According to Kimberly, Kenny Ray approached the screen door, opened the door, then pointed the.9 millimeter handgun at her, at the same time saying, "I told you I was going to get you."
From that point in time, she says the defendant pulled the trigger of his gun. The gun jammed. Because the gun jammed, Kenny Ray was forced to replace the clip. Kimberly states that she knew that he wanted to shoot her, so she cast her baby to the side and made for the hall of the house. Unfortunately, Kimberly was shot in the arm, but the bullet traveled through her spleen and kidney before finally retiring in her spinal column. Kimberly underwent surgery and had a rod implanted, which ran from her shoulder to her elbow. According to her testimony, a nerve in her right leg had been destroyed from the incident, and she continues to have difficulty walking.
Eartis Smith, Kimberly's mother, testified that Kenny Ray "ran up in the front door, and pulled out a gun." She then went on to say, that he said, "I told you I'm going to get you." Eartis Smith says that she frantically ran from the house to that of a friend and told the occupants to call the police.
Another witness, Dot Robinson, was visiting her daughter, who lived right behind Eartis Smith's house. Dot testified that she saw Kenny Ray unsuccessfully attempt to open the door to Eartis Smith's house. She said Kenny Ray then went to another door in order to gain entry. Shortly after that, Dot says she heard a gunshot and saw Eartis "come out of the backdoor running" with Kenny Ray in pursuit, "with the gun."
The defendant gave the following statement to the police:
At approximately 11:13 a.m. I pulled up on the street by Kimberly Ficklin's house and pared [parked] my Pontiac Grand Am. I had my.9 millimeter in my pocket. I got out of my car and walked to the front door and knocked. Kimberly said come in. I asked her was she ready for me to get the baby. I had pulled the gun out of my pocket and had it in my right hand. Kimberly was sitting on the couch. She got up and started toward the kitchen. I shot the gun and she fell. I shook her and I ran out the door. I was trying to unjam the gun. I ran to my car, got in, and drove to Southside Mart 501. I then got on 80 and went to Morton. I met two ambulances on highway 80 by the junkyard. When I got to Morton, a police car got behind me and followed me to my grandma's house, where Jeff Robertson arrested me. The gun I shot Kimberly with was lying on the seat. Jeff put me in his car and carried me to the Police Department.
ARGUMENT AND DISCUSSION OF THE LAW
I. WHETHER COUNSEL'S PERFORMANCE WAS SO DEFICIENT AS TO PREJUDICE HIS CLIENT'S RIGHT TO A FAIR TRIAL. WHETHER THE TRIAL COUNSEL WAS INEFFECTIVE WHEN HE ELICITED FROM THE VICTIM TESTIMONY THAT THE DEFENDANT HAD PREVIOUSLY THREATENED HER AFTER THE COURT HAD RULED THAT THE PROSECUTOR COULD NOT INTRODUCE THIS EVIDENCE. WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A LESSER INCLUDED OFFENSE INSTRUCTION OF SIMPLE ASSAULT. WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE KENNY MOORE'S COMPETENCE AND/OR SANITY PRIOR TO TRIAL. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INQUIRE FURTHER OF JURORS WHO RESPONDED POSITIVELY WHEN ASKED WHETHER THEY BELIEVED THAT "WHERE THERE'S SMOKE THERE'S FIRE." Kenny Ray insists that his counselor's legal performance in this case was severely defective. To begin with, he states that his trial ...