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Torrey v. State

Court of Appeals of Mississippi

February 28, 2017

THEODOSIUS M. TORREY A/K/A THEODOSIUS MAURICE TORREY A/K/A T.M. TORREY A/K/A "LOCO" A/K/A THEODOSIUS M. TORREY, SR. A/K/A MAURICE TORREY A/K/A THEODODIUS MAURICE TORREY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 05/22/2013

         JACKSON COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE

          ATTORNEY FOR APPELLANT: ROSS PARKER SIMONS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

          DISTRICT ATTORNEY: ANTHONY N. LAWRENCE III

          BEFORE GRIFFIS, P.J., BARNES, ISHEE AND CARLTON, JJ.

          ISHEE, J.

         ¶1. In January 2010, Theodosius Maurice Torrey was indicted on one count of aggravated assault, in violation of Mississippi Code Annotated section 97-3-7(2)(a) (Supp. 2009). Torrey was tried by a jury in the Jackson County Circuit Court, and was found guilty. In May 2013, Torrey was sentenced, as a habitual offender, to serve twenty years in the custody of the Mississippi Department of Corrections ("MDOC"). Torrey filed a motion for a judgment notwithstanding the verdict ("JNOV") or, in the alternative, a new trial, which he later amended. The circuit court denied Torrey's motion, and he appeals. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. Torrey was indicted on one count of aggravated assault in the Jackson County Circuit Court. The indictment stemmed from a physical altercation between Torrey and Rodney Norman on April 1, 2009. The altercation left Norman permanently disabled, confined to a wheelchair, and with significant limitations of his bodily functions due to severe trauma to his head and face. Torrey was arrested that same day, and interviewed by Moss Point Police Department Officer Joseph Savage and Detective Joycelyn Craig; the interview was audio-recorded. Torrey was read his Miranda[1] rights at the outset of the interview, and subsequently waived them. Torrey alleges that he invoked his right to counsel during this interview. Nonetheless, while Torrey initially denied participating in the altercation with Norman, he eventually told officers that it was he who fought Norman.

         ¶3. On December 12, 2012, the State moved to amend its indictment, and prosecute Torrey as a habitual offender. The circuit court granted the amendment, and entered an order to that effect on February 28, 2013. Torrey eventually proceeded to trial on May 20, 2013. Prior to trial, however, Torrey had hired and fired four separate attorneys, with his fifth attorney nowhere to be found and having done no work on Torrey's case; as such, the circuit court ordered that Torrey proceed to trial, as scheduled, with his fourth attorney, Brian Alexander. Upon conclusion of the trial, Torrey was convicted by a jury of aggravated assault, in violation of Mississippi Code Annotated section 97-3-7(2)(a).

         ¶4. On May 22, 2013, Torrey was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), to serve twenty years in MDOC custody, without the possibility of parole or early release. Torrey filed a motion for a JNOV or, in the alternative, a new trial; Torrey later amended his motion. Following a hearing on all the issues presented by Torrey in his posttrial motions, the circuit court denied Torrey relief. Aggrieved, Torrey now appeals.

         ¶5. On appeal, Torrey raises the following issues: (1) the circuit court abused its discretion by requiring Torrey to proceed to trial with an unprepared attorney whom Torrey had discharged; (2) the circuit judge abused his discretion in not recusing himself from Torrey's case; (3) the circuit court committed manifest error in denying Torrey's motion to suppress his recorded statement to Moss Point police officers; (4) Torrey's trial counsel rendered constitutionally ineffective assistance of counsel; (5) the circuit court abused its discretion in denying Torrey's jury instruction for the lesser-included offense of simple assault; and (6) the process by which Torrey was found to be a habitual offender violated his right to due process and fair notice. Finding no error, we affirm.

         DISCUSSION

         I. The circuit court did not abuse its discretion by ordering Torrey to trial with Brian Alexander as his counsel.

         ¶6. Because both of the issues Torrey raises involving his trial counsel are interrelated, we will address them together. To begin, Torrey asserts that the circuit court abused its discretion in requiring Torrey go to trial with Brian Alexander as his attorney. In addition, Torrey argues that because Alexander was unprepared, he provided ineffective assistance of counsel.

         A. Alexander as Trial Counsel

         ¶7. At the time of Torrey's scheduled trial date of May 20, 2013, Alexander had previously filed two motions to continue Torrey's case, in both February and March 2013; the circuit court granted both of these motions. Four days prior to Torrey's May 20 trial date, however, Alexander filed a motion to withdraw as counsel. The motion was not presented to the circuit court until May 20, 2013, when the court called Torrey's case for trial. Up to this point in the proceedings, the procedural history of Torrey's case was lengthy-Torrey had previously had three other attorneys, with Alexander being his fourth, and Torrey's case had been on the circuit court's docket for nearly four years, encompassing up to eleven separate continuances.

         ¶8. On the day of trial, Alexander was prepared to argue only his motion to withdraw and his third motion to continue. While the State announced that it was ready for trial, Alexander said that he was not, stating that Torrey had not honored his respective obligations to Alexander, that Torrey had hired an additional attorney to represent him, and that Torrey did not object to Alexander's withdrawal. Torrey explained to the court that he had fired Alexander, and hired his fifth overall attorney, Curt Crowley. Torrey further stated that he had paid Crowley $5, 000 to represent him; however, Crowley had not communicated with Torrey since his hiring, had failed to enter an appearance, had failed to file any documents, and had failed to correspond with Alexander regarding Torrey's case. Torrey further acknowledged that he had fired Alexander, and hired Crowley, after the circuit court's final continuance was granted. As such, the circuit court denied Alexander's motions to withdraw and/or continue the case, ordering the parties to proceed to trial that same day.

         ¶9. "The decision to grant or deny a continuance is left to the sound discretion of the trial judge." Harris v. State, 37 So.3d 1237, 1241 (¶16) (Miss. Ct. App. 2010) (citing Stack v. State, 860 So.2d 687, 691 (¶7) (Miss. 2003)). "This Court will not reverse a trial court's decision to deny a motion for continuance unless the decision appears to have resulted in manifest injustice." Id. "The burden of showing a manifest injustice is not satisfied by conclusory arguments alone; rather the defendant is required to show concrete facts that demonstrate the particular prejudice to the defense." Stack, 860 So.2d at 691-92 (¶7).

         ¶10. On appeal, as he did at trial, Torrey argues that the circuit court should not have forced him to proceed to trial with Alexander as his attorney because Alexander arrived at court expecting his withdrawal to be granted, or at least to be granted another continuance. Torrey further asserts that the circuit court erred by failing to consider the option of compelling Crowley to appear in court as Torrey's counsel, after a time in which Crowley "would have been prepared to proceed." As such, Torrey argues that he did not receive a fair trial and, thus, should be granted a new trial. We disagree.

         ¶11. From the record before us, Torrey has not shown concrete facts evidencing his defense was prejudiced to the point of constituting manifest injustice. In denying Torrey's motion for a JNOV or new trial, the circuit court specifically found that "Crowley failed to enter an appearance, failed to file any documents, and failed to communicate his existence in any matter with the Court." Moreover, Crowley's own testimony during the posttrial hearings revealed that he had done no work on the case, and intentionally avoided being served to make an appearance before the court. Whether to compel Crowley to represent Torrey, however, was within the sound discretion of the circuit court. Reasoning that Torrey would have likely fired Crowley-Torrey's fifth attorney-due to Crowley's lack of effort and communication, the circuit court chose to end the constant delays, and proceed to trial on May 20, 2013, as intended.

         ¶12. The circuit court did not abuse its discretion either in enforcing the trial date or in denying Alexander's motions to withdraw or continue the case. Precedent set forth by the Mississippi Supreme Court illustrates that other defendants have been forced to trial with attorneys having far less time to prepare for trial than Alexander. See Stack, 860 So.2d at 692 (¶9) (citing Hughey v. State, 512 So.2d 4, 6 (Miss. 1987) (defendant caused to go to trial on day of arraignment and nine days after appointment of counsel); Cole v. State, 405 So.2d 910, 911-12 (Miss. 1981) (counsel had seven days to prepare for murder trial); Speagle v. State, 390 So.2d 990, 992 (Miss. 1980) (new counsel forced to prepare for incest trial in one day); Shaw v. State, 378 So.2d 631, 633-34 (Miss. 1979) (defense counsel afforded eight days to prepare); Garner v. State, 202 Miss. 21, 30 So.2d 413, 414 (1947) (seven-day preparation time for capital murder trial)). Alexander filed his first appearance in the case on February 8, 2013, and began preparing for trial shortly thereafter. Thus, Alexander had over three months from his initial appearance to prepare for trial set on May 20, 2013.

         ¶13. As this Court will not reverse the denial of a motion to continue absent a showing of manifest injustice by the defendant, we find no reversible error in the present case. See Harris, 37 So.3d at 1241 (¶16). As this Court held in the analogous case of Feazell v. State, 750 So.2d 1286, 1288 (¶8) (Miss. Ct. App. 2000), "[t]o find error would require us to conclude that the trial judge is at the mercy of the manipulations of a defendant. We do not so find." Because we decline to address Torrey's ineffective-assistance-of-counsel claim for the reasons stated below, we find the circuit court did not abuse its discretion by requiring Torrey proceed to trial with Alexander as his counsel. This issue is without merit.

         B.Assistance of Trial ...


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