HENRY BERNARD LEWIS A/K/A HENRY LEWIS A/K/A HENRY B. LEWIS APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 08/29/2016
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
IRVING, P.J., CARLTON AND GREENLEE, JJ.
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
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.
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.
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.
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.
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."
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
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.
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.
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).
"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 ...