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Osbourne v. State

Supreme Court of Mississippi

July 18, 2019

BOBBY OSBOURNE
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 08/10/2017

          TATE COUNTY CIRCUIT COURT RHONDA MASON AMIS AZKI SHAH HON. JAMES McCLURE, III TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, W. DANIEL HINCHCLIFF GEORGE T. HOLMES BOBBY OSBOURNE (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, LAURA HOGAN TEDDER

          BEFORE KING, P.J., COLEMAN AND BEAM, JJ.

          BEAM, JUSTICE.

         ¶1. Bobby Osbourne was convicted in the Tate County Circuit Court of aggravated assault, following a jury trial. Osbourne appeals from that conviction, claiming that his trial counsel was constitutionally ineffective for numerous reasons: (1) for failing to move for a mistrial after discovering at trial that the handwritten notes taken by one of investigators, who had taken a statement from Osbourne, had not been provided to Osbourne's defense before trial, (2) for failing to investigate possible exculpatory evidence; (3) for failing to perfect Osbourne's direct appeal; and (4) for failing to obtain video evidence that corroborated Osbourne's trial testimony.

         ¶2. The State contends that the only ineffective-assistance claim that can be addressed on this record is the claim that Osbourne's trial counsel failed to perfect a direct appeal from Osbourne's conviction. Accordingly, the State declines to stipulate that the record is adequate to address Osbourne's remaining ineffective-assistance claims.

         ¶3. We agree with the State. Given the record before us, we address only the ineffective- assistance claim pertaining to trial counsel's purported failure to perfect a direct appeal.

         FACTS AND PROCEDURAL HISTORY

         ¶4. Osbourne was found guilty of aggravated assault for shooting John McCarver during an altercation between the two men at a gas station following a traffic incident that occurred on Interstate 55. Multiple witnesses testified for the State. Osbourne was the only witness to testify for the defense during the guilt phase at trial.

         ¶5. Evidence was presented that McCarver, his wife Tressa, and his seven-year-old child were traveling south on I-55 to their home in Coldwater, Mississippi, in the afternoon on March 18, 2016. Tressa was driving, and McCarver was sitting in the passenger seat. Tressa passed a white van that she testified was traveling slowly in the passing lane. After passing the van, Tressa remained in the fast lane. The white van then drove up behind the McCarvers' vehicle and began tailgating their rear bumper. McCarver told Tressa to slow down and to get over into the other lane because their exit was coming up.

         ¶6. According to Tressa, when she exited I-55 at the Coldwater exit, the white van followed. Tressa pulled into a Shell gas station located close to the exit and parked at one of the gas pumps. The white van pulled into the gas station and parked nearby.

         ¶7. Osbourne, the driver of the van, got out of the van and approached the McCarvers' vehicle. McCarver got out of his vehicle and walked toward Osbourne. An argument ensued, and, according to witnesses for the State, Osbourne hit McCarver in the face. Osbourne then pulled a gun from the back of his waistband, walked backed to his van, and got back ...


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