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Lewis v. State

Court of Appeals of Mississippi

November 28, 2017

HENRY BERNARD LEWIS A/K/A HENRY LEWIS A/K/A HENRY B. LEWIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/29/2016

         MADISON COUNTY CIRCUIT COURT HON. STEVE S. RATCLIFF III JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          DISTRICT ATTORNEY: MICHAEL GUEST

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. A jury found Henry Lewis guilty of possession of a firearm as a convicted felon. See Miss. Code Ann. § 97-37-5 (Rev. 2014). The Madison County Circuit Court then sentenced Lewis as a habitual offender to ten years in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Lewis argues the circuit judge committed reversible error by telling Lewis that he would have to represent himself at trial with standby counsel if he chose to give his own opening statement. Finding error, we reverse the circuit court's judgment and remand the case for a new trial.

         FACTS

         ¶2. Around 9 a.m. on October 17, 2015, Ridgeland police officers responded to a call about a disturbance in a motel parking lot. Upon arriving in the motel parking lot, the officers encountered Lewis and Latoya Walker, who were standing next to a Jeep with a broken window. Lewis and Walker appeared to have been arguing about the broken window. As the officers tried to ascertain what had happened and identify everyone present, Lewis became agitated and tried to flee the scene. A scuffle ensued, and the officers arrested Lewis.

         ¶3. Prior to his arrest, however, Lewis told the officers that he and Walker had been staying in Room 222. Lewis gave the officers his room key card as proof, and Corporal John Garcia took the key card to the motel's front desk to verify the room number. The motel desk clerk informed Corporal Garcia that the key card actually opened the door to Room 223. A motel employee then accompanied Corporal Garcia to Room 223.

         ¶4. Upon reaching Room 223, Corporal Garcia found the door open. Corporal Garcia observed an eight-year-old boy lying on one of the beds in the room. The boy came to the door and told Corporal Garcia that his mother, Walker, was in the parking lot with Lewis. The boy then fully opened the motel-room door, and Corporal Garcia spotted what he later described as a 9-millimeter "semiautomatic machine gun" sitting in plain view on a counter. Corporal Garcia also heard the bathroom shower running and asked whether anyone else was in the room. The boy responded that there were people in the shower but that he did not know them.

         ¶5. After asking the motel employee to escort the boy to the front office, Corporal Garcia entered the room and seized the weapon. He then unloaded the gun's magazine and took one round from the gun's chamber. Once another officer arrived as backup, Corporal Garcia directed the shower occupants to exit the bathroom. Walter Thompson and Kimberly Red exited the bathroom, and the officers handcuffed them. While checking the room for additional weapons, the officers discovered marijuana underneath a pillow on one of the beds.

         ¶6. The officers arrested Lewis, Walker, Thompson, and Red and transported them to the police department. At the police department, Corporal Garcia informed Thompson that he was being charged with possession of marijuana and possession of a firearm by a convicted felon. Corporal Garcia testified that Lewis was present and that, upon hearing the charges against Thompson, Lewis began to apologize to Thompson. Corporal Garcia stated that Lewis told Thompson, "I'm sorry; I'm sorry. Man, that's my gun. . . . Man, I know that's on me; that's on me."

         ¶7. A grand jury later indicted Lewis, as a habitual offender, for possession of a firearm by a convicted felon. The circuit court assigned Lewis's case to the public defender's office. Abraham Rowe was then appointed as Lewis's trial counsel. The record reflects that Rowe assisted Lewis in waiving his arraignment and pleading not guilty to the crime charged. At Lewis's trial, Rowe made the opening statement and closing argument, cross-examined the State's witnesses, and moved for a directed verdict following the State's case-in-chief. The record reflects that the defense called no witnesses of its own to testify and instead rested following the denial of its motion for a directed verdict.

         ¶8. After considering the evidence and testimony presented during Lewis's trial, the jury found Lewis guilty. The circuit court then sentenced Lewis to ten years in MDOC's custody. Lewis filed an unsuccessful motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Aggrieved, Lewis appeals.

         DISCUSSION

         ¶9. Lewis raises one assignment of error on appeal. He asserts the circuit judge erred by telling him that he would have to represent himself at trial, with counsel on standby, if he wished to give his own opening statement. Lewis argues the circuit court's instruction violated his constitutional right to participate in his own defense. As a result of this alleged error, Lewis seeks a new trial.

         ¶10. Article 3, Section 26 of the Mississippi Constitution states that "[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both[.]" The Mississippi Supreme Court has repeatedly recognized a defendant's right to make his own opening statement. See Armstead v. State, 716 So.2d 576, 580 (¶16) (Miss. 1998) (citing cases upholding the defendant's right to make his own opening and closing arguments). Furthermore, our supreme court has reversed and remanded cases for a new trial where the trial court refused to allow the defendant to do so. See Bevill v. State, 556 So.2d 699, 710 (Miss. 1990); Trunell v. State, 487 So.2d 820, 825-26 (Miss. 1986); Gray v. State, 351 So.2d 1342, 1345 (Miss. 1977).

         ¶11. "While every accused has the constitutional right to be represented by an attorney, it must be balanced against the right of an accused to represent himself, that is, to present his own case pro se without an attorney." Metcalf v. State, 629 So.2d 558, 562 (Miss. 1993). "Where a criminal defendant does not forego his lawyer's services, . . . there is no tension between the right to counsel and the right to self-representation." Armstead, 716 So.2d at 581 (¶20). To achieve the desired balance between self-representation and representation by an attorney, many courts employ the following solution:

Hybrid representation is considered to encompass both the participation of the defendant in the conduct of his trial when he has not effectively waived the assistance of an attorney to defend him, and the participation by an attorney in the conduct of the trial when the defendant is defending pro se. Courts commonly refer to the role of the attorney in a situation in which a defendant has not effectively waived assistance of an attorney as that of "co-counsel." The role of the attorney in a situation where the defendant has effectively waived counsel and is proceeding pro se is that of "standby" or ...

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