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Lofton v. State

Supreme Court of Mississippi

April 26, 2018


          DATE OF JUDGMENT: 11/29/2016








         ¶1. A jury found Jerry Lofton guilty of murder. He was sentenced as a habitual offender to life without parole. Lofton now appeals, claiming he was forced to proceed pro se without knowingly or voluntarily waiving his right to an attorney. But the record shows he was not left to his own defense as a pro se litigant. Instead, after being warned of the dangers of self-representation, he asked for and received a "hybrid defense." Lofton made it clear he wished to take the "lead" role in a "co-counsel" arrangement with his court-appointed attorney. And the judge allowed him to proceed in that fashion. Because Lofton "received the best of both worlds-the assistance of counsel while conducting his own defense[, ]"[1] he cannot now complain that he was wholly pro se or received inadequate warnings.

         ¶2. We thus affirm.

         Background Facts and Procedural History

         I. Pretrial

         ¶3. Edroy James Ballard Jr. was shot and killed on June 3, 2014, in Horn Lake, Mississippi. A DeSoto County grand jury charged Lofton with Ballard's murder. Lofton was deemed indigent, and Adam Emerson was appointed to represent him. Several months later, Emerson filed a motion to reconsider Lofton's indigent status. Emerson informed the trial court that Lofton had refused to meet with him and wished to hire private counsel. Lofton, who had made a $100, 000 bond and was employed, told the judge he desired to hire his own attorney.[2] In response, the judge gave Lofton time to secure a private attorney. But he required Emerson to continue his representation of Lofton until Lofton hired a new lawyer. Though Lofton never hired private counsel, he had been granted trial continuances and given considerable time to do so.

         ¶4. Then, during a February 4, 2016 hearing, Lofton mentioned representing himself. The judge warned Lofton that his murder charge was very serious. And he "certainly would be no match for the State of Mississippi" if he tried to represent himself. At this point, the judge refused to let Lofton proceed without some type of counsel. The judge also instructed Lofton that if he wanted private counsel, he should secure an attorney quickly.

         ¶5. Months later, during a status hearing, Lofton asked the court if he could participate in some role in his defense. He insisted he wanted a hybrid defense-a defense in which he would approve all legal decisions and take the "lead" role in a "co-counsel" arrangement. The judge again warned Lofton of the associated dangers of this arrangement. But he granted Lofton's request, instructing Emerson to remain as appointed "co-counsel."

         ¶6. Less than a month later, Lofton filed a motion for new counsel. He claimed he and Emerson could no longer work together. Despite Lofton's complaints, the judge found Emerson had represented Lofton quite well and had diligently pursued his case. Still, the judge granted Lofton's request and removed Emerson as counsel. The judge then appointed Stacey Spriggs as Lofton's new attorney on July 22, 2016.

         ¶7. On August 19, 2016, the trial court conducted a hearing, entertaining arguments on numerous motions filed by Lofton. Lofton began with a motion for recusal. He argued the judge was biased against him because he had refused to reconsider revoking his bond. Spriggs informed the judge he had spoken at length with Lofton about the bond-revocation hearing, the burden of proof, and evidentiary matters, and had counseled against a motion for recusal. The judge found no basis to recuse and denied the motion. Lofton also moved for new appointed counsel, claiming Spriggs too was biased against him. He insisted they had trouble talking over the phone, and some mail had been returned when Spriggs moved offices. The judge found no basis to remove Spriggs and denied the motion.

         ¶8. Six days before trial, the judge heard the State's motion to amend Lofton's indictment to reflect his habitual-offender status.[3] The State presented certified copies of two of Lofton's prior felony convictions. Lofton objected, arguing he needed more time to verify the authenticity of the copies. His objection was overruled, though the judge gave him time to review the documents. After that opportunity, the judge granted the State's motion to amend the indictment. Lofton again moved for new counsel. He claimed Spriggs had laughed at him during the previous hearing. He also reurged his returned-mail claim and that Spriggs was biased against him. The judge denied the motion, noting Spriggs had acted professionally while representing Lofton. In fact, he did not see Spriggs laugh, much less smile, during the previous hearing.

         II. Trial

         ¶9. Lofton's trial began on September 12, 2016. The judge first determined Lofton was competent to stand trial. And almost immediately after, Lofton began hurling complaints about Spriggs. The judge again denied his request for new counsel. Dissatisfied, Lofton declared he did not want Spriggs to help represent him. He repeatedly mentioned he had the right to waive his attorney and wanted to invoke that right. Recognizing the pitfalls ahead, the judge required Spriggs to remain at the defense table with Lofton. And throughout trial, Spriggs, in fact, consulted with Lofton and assisted him in his defense.

         ¶10. Trial proceeded and, during voir dire, Lofton and Spriggs each addressed the jury. And Spriggs made peremptory challenges based on Lofton's directions. During voir dire, Lofton continued to complain about Spriggs. He also objected to the order of peremptory strikes and tried repeatedly to derail the trial, urging the proceeding was unfair. The trial judge noted Lofton's statements and objections but overruled his objections.

         ¶11. After the jury was selected, Lofton again asked to waive counsel. But the judge required Spriggs to remain as counsel to assist in any role Lofton desired. Once the State had made its opening statement to the jury, Lofton opted to deliver his own opening. The State then proceeded with its case, calling three eyewitnesses-Keith Patterson, Daphne Patterson, and Lashawn Wright. All three were present the day of Ballard's murder. And each testified they had seen Lofton with a revolver. They also had seen him flee in a vehicle immediately after the shooting. Wright specifically testified that Lofton came inside and asked another woman, Dontia Mickens, for her car keys and said "I had to hurt one of these n*****s." Wright explained that Mickens refused to give Lofton her keys but did drive him away from the scene. Lofton cross-examined each witness. And he consulted Spriggs for guidance during Wright's cross-examination. The State also called Detective Daniel Pounders, who investigated Ballard's murder, and Kristopher Wingert, who processed the crime scene. The State then called Dr. Mark LeVaughn, a medical examiner, and Starks Hathcock, a forensic firearms analyst. The bulk of these four witnesses' collective testimony was that: (1) Ballard's death was a homicide, (2) Ballard had been shot three times and his body was near Lofton's car, (3) no shell casings were found, and (4) the projectiles removed from Ballard's body were fired from the same .38 revolver. Lofton again opted to conduct the cross-examinations himself. The State then rested.

         ¶12. Lofton moved for a directed verdict, arguing the State had failed to meet its burden of proof. The judge disagreed. He found the State had made a prima facie case of murder and denied a directed verdict. The judge then asked if Lofton was ready to proceed with his witnesses. Lofton informed the judge he had no witnesses. He claimed he had insufficient time to provide witness names to Spriggs. The judge asked if Lofton was resting his case. Lofton said he was. And the judge confirmed Lofton's decision two more times. Before moving forward, the judge asked him if there was anything else he wanted to put in the record. Lofton told the judge no.

         ¶13. Before closing arguments, Lofton and Spriggs consulted about jury instructions. Lofton objected to the State's proposed instruction that the jury not draw negative inferences from his decision not to testify in his defense. Lofton claimed this was an improper comment on his right to remain silent. The judge overruled this objection. The jury was instructed, and the parties made their closing arguments. Lofton presented his own closing argument. The jury then retired to deliberate.

         ¶14. At some point after deliberations began, the jury sent the judge a note asking if Lofton was allowed to call any witnesses. The judge responded with a note, explaining the defense "chose not to call any witnesses, " and he instructed the jury to continue its deliberations. Lofton objected. For the first time, he claimed the defense had issued some subpoenas for witnesses and documents, but they were misdated-commanding an appearance for the following day. The judge reminded Lofton that he had specifically asked him-before he rested-if the defense wished to call any witnesses, and Lofton had told him no. So the objection was overruled. But the judge noted that, according to the court clerk, some subpoenas had not yet been returned because they were for out-of-state witnesses, while other subpoenas were returned showing the witnesses as not found. He did allow Lofton to make a record that some subpoenas were filed with an incorrect date.[4]

         ¶15. The jury found Lofton guilty of Ballard's murder. The judge heard Lofton's post-trial motions on November 22, 2016. In his motion for a new trial, Lofton argued he was forced to proceed pro se and never intelligently waived counsel. He argued his right to present witnesses was violated, the State withheld discovery, and that all of the State's witnesses had lied. He also argued the all-white jury rendered his trial unfair. The trial judge denied Lofton's post-trial motions. He sentenced Lofton as a habitual offender to life in prison without parole. Lofton now appeals.

         ¶16. Lofton's appellate counsel raises two issues. He argues that, although Lofton proceeded with the assistance of counsel, Lofton essentially was a pro se defendant at trial and was not given proper warnings about self-representation. Alternatively, he suggests Lofton's hybrid counsel was ineffective for misdating subpoenas to secure documents and witnesses for trial.

         ¶17. Lofton has also written his own pro se brief. In it, he claims: (1) a jury instruction improperly commented on his right to remain silent, (2) the judge denied him the right to present witnesses and evidence, (3) the State withheld exculpatory evidence, (4) his attorney was ineffective, (5) he was unfairly surprised by the State's witness Daphne Patterson, (6) all African-American potential jurors were wrongly struck, and (7) the State improperly amended his indictment.


         I. Lofton's Representation

         ¶18. From the outset, the record shows the trial judge and both of Lofton's appointed attorneys exhibited tremendous patience and professionalism as Lofton flip-flopped often in his requests for representation. One moment he wanted private counsel; the next he wished to represent himself in some fashion. But what did remain constant, as trial approached, was Lofton's demand to play a substantial role in his defense. As he pointedly put it, he preferred "hybrid representation." And he asked for a lead role in a co-counsel arrangement, where his appointed attorney would not make any decisions without Lofton's approval. The trial judge ultimately granted this request, allowing Lofton to represent himself with assistance of appointed counsel.

         ¶19. Despite the judge crafting the exact hybrid arrangement Lofton proposed, Lofton and his appellate counsel now argue Lofton was really a pro se defendant at trial. And they argue the trial judge's warnings about the dangers of self-representation were not specific enough.[5] In other words, Lofton did not understand the pitfalls of self-representation. So his decision to proceed pro se was not knowing or voluntary. The record certainly does not support this. Nor does it support that Lofton's defense was wholly pro se.

         A. Lofton's ...

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