DIZON v. STATE

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. This is an appeal from the Circuit Court of Jackson County, Mississippi, where, on February 25, 1997, appellant Edison Dizon ("Dizon") was convicted of the murder of Lino Rodriguez ("Rodriguez").

¶ 2. On June 26, 1996, Dizon and Randy Tesoro were indicted for the murder of Rodriguez. The indictment charged the two with willfully, feloniously and without the authority of law killing and murdering Rodriguez with deliberate design to effect Rodriguez's death.

¶ 3. A jury trial was held in Jackson County Circuit Court on February 24 and 25, 1997. Testimony at trial established that on the evening of April 20, 1996, Dizon, Dizon's two daughters, Tesoro, Tesoro's son, and Rhonda Cruise ("Cruise") drove to the Monico Lake Apartments in Pascagoula to deliver Dizon's two young daughters to Gwendolyn Eason ("Eason"), Dizon's long-time girlfriend and the girls' mother.

¶ 4. When Dizon discovered Eason was not in the apartment, he pulled an aluminum baseball bat from a closet inside the apartment and went to Rodriguez's apartment in search of Eason. Eason had earlier admitted having a sexual relationship with Rodriguez.

¶ 5. Dizon knocked on Rodriguez's door. When Eason answered the door, Dizon bit her on the shoulder. Eason ran to the apartment of a neighbor, Renatta Dupree, and asked her to call the police.

¶ 6. A scuffle ensued that involved Dizon, Tesoro, and Rodriguez, with Tesoro apparently attempting to break up the confrontation. The scuffle moved to the lawn in front of the apartment building. Dizon struck Rodriguez numerous times with the baseball bat, knocking him to his knees. Dizon then turned and chased Eason, cursing her. Dizon returned to where Rodriguez was kneeling on the ground and struck him again with the baseball bat. Following this final attack, Dizon got into the car driven by Tesoro and fled. A short distance from the scene, Dizon threw the baseball bat from the car. Rodriguez was transported to Singing River Hospital in Pascagoula. He died two days later, never having regained consciousness.

¶ 7. At trial, the only defense presented was by Tesoro. Tesoro made a Motion for a Directed for Verdict for Acquittal which was granted by the trial court. The jury subsequently returned a verdict convicting Dizon of murder. The trial judge immediately sentenced Dizon to life in the custody of the Mississippi Department of Corrections.

¶ 8. Dizon filed a Motion for a New Trial or in the Alternative, J.N.O.V., and a hearing was held on the matter. The trial court subsequently denied the motion. The trial court then granted a motion by Dizon's trial counsel to withdraw and appointed new counsel.

¶ 9. Dizon, alleging that he had been denied his constitutional right to testify on his own behalf, filed an Extraordinary Motion for New Trial. The trial court dismissed the motion without prejudice, stating that it was without jurisdiction to hear the motion because Dizon had already filed a direct appeal with this Court.

¶ 10. Dizon then petitioned this Court for Extraordinary Relief under M.R.A.P. 21. This Court considered the motion as a motion to supplement the record under M.R.A.P. 10(e) and remanded to the trial court for an evidentiary hearing on the issue of whether Dizon had been properly informed of and advised of his right to testify on his own behalf, and whether he had effectively waived that right under Culberson v. State, 412 So.2d 1184 (Miss. 1982).

I. WHETHER DIZON WAS DENIED HIS CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN BEHALF AT TRIAL BY HIS ATTORNEY AND THE TRIAL COURT.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO SUBMIT JURY INSTRUCTIONS IN VIOLATION OF THE DICTATES OF RULE 3.07, UCCCR, RESULTING IN ACTUAL PREJUDICE TO DIZON AT TRIAL.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING JURY INSTRUCTION S-2A TO BE GIVEN TO THE JURY WHICH, IN EFFECT, MATERIALLY AMENDED DIZON'S INDICTMENT.

IV. WHETHER THE TRIAL COURT ERRED IN SUBMITTING JURY INSTRUCTION S-2A TO THE JURY WHICH WAS AN INACCURATE STATEMENT OF THE LAW, WHICH CONTAINED AN ESSENTIAL ELEMENT FOR WHICH NO EVIDENCE WAS PRESENTED BY THE STATE, WHICH WAS PREJUDICIAL TO DIZON, AND WHICH WAS UNCONSTITUTIONALLY VAGUE AND CONFUSING TO THE JURY'S DELIBERATIONS.

V. WHETHER THE TRIAL COURT ERRED IN SUBMITTING JURY INSTRUCTION S-2A TO THE JURY WHICH WAS IN HOPELESS CONFLICT WITH JURY INSTRUCTION S-7 AND CONFUSING TO THE JURY'S DELIBERATIONS.

VI. WHETHER DIZON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

¶ 11. As this Court has repeatedly stated, "[n]o trial is free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the appellant was unduly prejudiced." Century 21 Deep South Properties, Ltd. v. Keys, 652 So.2d 707, 716 (Miss. 1995) (quoting Davis v. Singing River Elec. Power Ass'n, 501 So.2d 1128, 1131 (Miss. 1987)).

I. WHETHER DIZON WAS DENIED HIS CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN BEHALF AT TRIAL BY HIS ATTORNEY AND THE TRIAL COURT.

¶ 12. Dizon argues that he was denied his constitutional right to testify on his own behalf at his trial. Dizon first filed a petition with this Court seeking relief under M.R.A.P. 21. This Court considered the petition as a motion to supplement the record under M.R.A.P. 10(e) and remanded the matter to the trial court for an evidentiary hearing on the matter as suggested by Culberson v. State, 412 So.2d 1184 (Miss. 1982). This Court specifically limited the hearing to whether Dizon was properly informed of and advised of his right to testify on his own behalf and whether Dizon effectively waived that right. The evidentiary hearing was subsequently held with the transcript of the hearing being filed with this Court as a supplemental volume of the record.

¶ 13. After careful review, we find that Dizon was not fully advised of his right to testify on his own behalf. This being the case, Dizon's constitutional rights have been violated, and this case must be reversed and remanded for a new trial.

¶ 14. As this Court stated in Culberson, if an accused is denied the right to testify on his own behalf, it is a constitutional violation regardless of whether the denial is a result of a refusal by the court or a refusal by the accused's counsel to allow the accused to testify. Culberson, 412 So.2d at 1186. The Court went on to suggest that if the defendant does not testify, the trial judge should, outside the presence of the jury, advise the defendant of the right to testify. Id. If the defendant wishes to testify, he should be allowed to do so. If the defendant does not wish to testify, he will not be required to testify. Id.

¶ 15. Dizon argues that he did not understand that he had a right to testify, nor did he knowingly waive such right. As support, Dizon cites his lack of expertise in the criminal justice system. Dizon also argues that his attorney's ambiguous question regarding his willingness to testify, that was asked of him after the State rested, clearly shows that Dizon did not know he had the right to testify on his behalf. It necessarily follows that he could not effectively waive that which he did not know he had. Further, there is no colloquy between the court and Dizon regarding Dizon testifying.

¶ 16. At the evidentiary hearing, Dizon's trial counsel testified that he had talked with Dizon regarding what his testimony would be if he testified at trial. He testified that he could not definitively say that he had advised Dizon that he had a right to testify. After the State rested, trial counsel met with Dizon in a holding cell and discussed Dizon's family and military record and what he would testify to if put on the stand. Trial counsel stated:

And then, I think we just probably left it up in the air or either he decided that he was going to testify. I'm not sure which it was. But we came back up here and began the trial again. And I leaned over to him and I said, Well, are you ready to do this? And he said no. So, I assumed from that, he'd changed his mind about testifying or made up his mind about whether he was going to testify or not. And so we rested at that point.

¶ 17. Trial counsel testified he had no doubt that Dizon had voluntarily waived his right to testify at the trial at the time the defense rested. However, he did testify that in hindsight, "the sloppiness of [his] question" may have caused a miscommunication between Dizon and himself.

¶ 18. Dizon definitively testified that he was never informed of his right to testify by trial counsel. He testified that he spoke with his trial counsel a "couple of times" before trial and repeatedly told him that he wanted to testify. According to Dizon, trial counsel never prepped him to testify.

¶ 19. Interestingly enough, the dissent argues that we rely on disputed testimony between Dizon and his trial counsel in reaching our conclusion that Dizon was denied his right to testify. At the hearing, Dizon's trial counsel testified that he could not say with certainty that he ever advised Dizon of his right to testify. Dizon then testifies that trial counsel did not tell him he had a right to testify. Where is the dispute?

¶ 20. Dizon cites his inexperience with the criminal justice system as his reason for not questioning trial counsel's conduct of resting without calling him to testify. When asked why he did not attempt to communicate with his trial counsel when trial counsel rested, Dizon stated that he was surprised by trial counsel's actions. Dizon testified that he did not learn he had a right to testify until he was incarcerated after the conviction.

¶ 21. The dissent suggests that this is "one of those extraordinary cases where the record clearly demonstrates that Dizon was not denied his right to testify." Dissent at page 2. The dissent is incorrect: this is a case where the record does clearly show that Dizon was denied his right to testify. When trial counsel states on oath that he is not sure that Dizon clearly understood he had a right to testify, no other conclusion can be reach except that such right was denied.

¶ 22. The judge was put on notice that Dizon wanted to testify. During opening statements, trial counsel told the jury that Dizon was not going to get on the witness stand and deny what happened. In fact, he would testify about what did actually happen when Rodriguez was beaten.

¶ 23. While there is no doubt that Dizon committed the act that led to Rodriguez's death, there is no way to know if the jury would have been swayed by Dizon's testimony. Dizon argues that had he been allowed to testify, he would have told the "whole story." Without knowing what the "whole story" is according to Dizon, this Court has no way of deciding if his testimony would have been persuasive. Dizon states he would have testified about his family life, his Navy career, and the fact that he had never been in trouble with the law.

¶ 24. The dissent argues that even if Dizon had testified, there is nothing that would have changed the verdict. How can we possibly know unless Dizon testifies? There may very well have been underlying factors only known to Dizon and Rodriguez that could have fueled the incident. The dissent states that there is nothing in the record to indicate that this could have possibly been manslaughter. Again, how could we possibly know this without hearing Dizon's side of the story? The issue in this case is not whether this incident involved heat of passion manslaughter. The issue is whether Dizon knew had a right to testify on his own behalf and whether he was afforded that right.

¶ 25. This Court suggested in Culberson that the trial judge question the defendant outside the presence of the jury regarding the defendant's right to testify on his own behalf. Culberson, 412 So.2d at 1186. From review of the record, it seems that this would have been the most prudent course of action for the judge to take. Trial counsel stated during opening statements that Dizon would testify. This in itself should have been enough to trigger an inquiry by the judge as to whether or not it had been explained to Dizon that he had a constitutional right to testify and whether or not he had waived that right.

¶ 26. The dissent argues that we have today created "a hard and fast due process procedural right which must be complied with in each case." Dissent at page 1. Such is not the case. We find that the judge was on notice that Dizon wanted to testify. The judge should have erred on the side of caution and questioned Dizon according to Culberson. In fact, the dissent even agrees that it "would have been a better practice for the trial judge to follow the suggestion in Culberson and question Dizon then and there about his decision not to testify." Dissent at page 3.

¶ 27. Because Dizon was denied his constitutional right to testify on his own behalf, we reverse the judgment of the Jackson County Circuit Court and remand this case to the trial court for a new trial. Because of our reversal on Issue I, we need not address Dizon's further assignments of error.

¶ 28. REVERSED AND REMANDED.