TRIPLETT v. STATE

HAWKINS, Chief Justice, for the Court:

The original opinions in this case are withdrawn and these opinions are substituted therefor.

Michael Lee Triplett has appealed his conviction of manslaughter in the circuit court of Winston County and sentence to twenty years' imprisonment. His sole assignment of error is that he was denied the effective assistance of counsel guaranteed him by the Sixth Amendment to the United States Constitution. We agree and reverse.

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. By the Fourteenth Amendment this right is made obligatory upon the States. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right means "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970).

The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

Article 3, § 26 of our Constitution provides: "In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both. . . ." We hold today that the Mississippi Constitution's right to counsel embraces all rights guaranteed to a criminally accused defendant by the Sixth Amendment.

As Strickland and our cases following this United States Supreme Court decision illustrate, the difficulty comes in applying this right to the multiple variety of instances in which its infringement is claimed.

William Earl Eiland, doing business either as "Eiland's Cafe" or "Willie Earl's," in 1988 operated an unpretentious restaurant in the High Point Community in the extreme northern part of Winston County only a short distance from the Choctaw County line. Simply looking at the ramshackle building in this rural area one would wonder at its apparent popularity as a hang-out for young people.

On Thursday night, September 1, 1988, Triplett, nineteen years of age and a senior in the Ackerman high school, was at a football game in Weir, Choctaw County, and while there had some difficulty with a young man, later identified as Alfonso (Bobo) Evans. According to Triplett, Evans pulled a knife on him.

Late Friday night, around 10:30 and after a football game in Ackerman, Triplett went with his friends Kevin Miller, Darrell Estes, Howard Lewis, and Karry Bray to Willie Earl's. That night Wayne Arterberry, a seventeen- or eighteen-year-old sophomore in the Weir high school and on the football team, also went to Willie Earl's in the company of Michael Herbert, Melvin Dotson, and Alfonzo and Kevin Evans. Arterberry weighed approximately 150 pounds and was approximately 5 feet 11 inches tall.

Another group who went to Willie Earl's that night was made up of Willie Miller, Thomas Coffee, Bobby Joe Woodard, an unidentified female, and Willie McCain, all in McCain's car.

Inside Triplett saw Evans and accosted him about pulling the knife on him. An argument started and a group of the young people went outside where it continued.

According to Coffee, a state witness, Triplett at some point cursed and grabbed Arterberry, who had been trying to get away from Triplett, and then shot him.

There is agreement between the state and defense witnesses that after the group got outside Arterberry also had something to say in the argument between Evans and Triplett.

Triplett's version was as follows: Arterberry had a knife that night outside the cafe, and Triplett was afraid of Evans and the group he was with. He had told them he wanted no trouble. While outside Dwight Gibson gave him a pistol. Triplett had never before fired a pistol. To scare the group off, Triplett shot in the air.

After he had fired the first shot, Karry Bray came up behind Triplett, "jumped on my back and grabbed my arm and I wrestled with him and it went off." R.II, 202.

Bray testified he only heard the first shot, and did not know the circumstances under which it was fired. While running, attempting to flee he came up behind Triplett and saw him with the pistol. According to Bray, when he saw the pistol, he grabbed Triplett's right arm and was tussling with him when it went off, the bullet striking Wayne Arterberry in the chest.

The bullet lodged in a thoracic vertebra, and Arterberry died a few hours later from excessive bleeding in the Winston County Hospital.

Triplett got in Joe Baber's car, gave Baber the pistol, and was taken home by Baber. Larry Murphy left with them.

In a statement given to Winston County Sheriff Billy Rosamond when he was investigating the killing, Bray neglected to mention that he had grabbed Triplett, causing the weapon to fire.

Triplett also significantly failed to mention, in a statement given to the sheriff the next day which was typed, that it was Bray's wrestling with him that caused the weapon to fire. While most of Triplett's typed statement was consistent with his trial testimony, as to the shooting it read as follows:

I was walking off and Wayne Arterberry came behind me and started talking some junk, and I said please man don't mess with me. I don't want any trouble. I started walking off again and he kept running his mouth. I kept walking and I walked up to Dwight Gibson and he took a pistol from his back pocket and handed it to me. I held the gun in my right hand and put my hand under my shirt and I seen Wayne Arterberry with a knife in his right hand. I went berserk and fired the gun at Wayne Arterberry twice. I missed him the first time the second shot hit him. I turned around and walked off and told Joy Wayne Baber to carry me home. I went home and the Choctaw County Deputy Sheriff came and picked me up.

Triplett's family employed Richard Burdine, an attorney from Columbus, to defend him. The Winston County grand jury indicted Triplett for murder October 12, and he went to trial November 3, 1988.

Counsel's legal representation of Triplett which raises questions consists of the following:

(1) No request for pre-trial discovery was made. At trial counsel's lack of familiarity with Triplett's statement to the sheriff was demonstrated when he was questioning Triplett, who had just testified the gun was fired twice.

Q. Twice. And is it in your statement — I think it may be in your statement that it was fired three times. Is that right?

A. No, it's not in my statement. It was fired twice.

Q. Twice.

Counsel was also apparently unaware that Bray had given a statement to the sheriff which omitted any mention of the reason the second shot was fired.

(2) The record reveals no request by the defense for subpoenas. At least 17 or 18 individuals were named during the course of the trial who were at the scene. The killing occurred in a county where neither Triplett nor Arterberry resided, and defense counsel lived some forty miles away. Counsel's lack of familiarity with the trial witnesses was indicated by his inability to get their names right when they were testifying. Three witnesses at the scene testified for the state, namely: Willie Miller, Baber and Coffee. Four testified for the defense, namely: Deborah Vaughn, Howard Lewis, Jr., Bray and Triplett.

(3) There was no attempt to seek a continuance in order to better prepare for trial.

(4) The defense did not request a special venire, and there were no challenges for cause by the defense or State.

One juror, Goss, remained, whose nephew two years previously had been shot and paralyzed in the manner Arterberry was shot. Goss also lived in the High Point community and knew Eiland.

(5) The 1990 census shows Winston County is 41% black. No Batson question was raised by defense counsel.

(6) Counsel made no attempt to suppress or challenge the voluntariness of Triplett's statement to the sheriff presented as part of the state's case in chief. Indeed, he complimented the sheriff, telling him he knew him and that he had complied with the law.

(7) Counsel made no attempt to explain, deflect or minimize during his direct examination of Bray the significant failure by him to tell the sheriff during his investigation that the reason the second shot was fired was Bray wrestling with Triplett. He left it all to be brought out in a telling cross-examination by the state, forming the major part of the state's closing argument. This suggests counsel was unaware of Bray's statement prior to trial, and may not have known of Bray's pre-trial statement until it was brought out on cross-examination. Counsel at the very least in his direct examination of Bray should have given him the opportunity to tell why the statement to the sheriff did not disclose the reason for the second shot. This was a glaring omission and the worst possible time to have it disclosed to the jury was during cross-examination.

(8) The sheriff during his investigation found a knife at the scene of the shooting. Counsel attempted to have the knife introduced into evidence during his cross-examination of the sheriff, but the circuit judge ruled it could not be introduced then. The circuit judge asked counsel if the defendant intended to testify, and upon being told by counsel that he would, the court informed counsel that the knife could be introduced when the defendant testified. Counsel made no attempt, however, to introduce the knife at any subsequent time during trial. Thus, this item of demonstrative evidence was not seen by the jury. On the other hand, counsel introduced into evidence the pistol, which theretofore had only been offered for identification by the state.

(9) Counsel offered no instruction factually embracing his client's defense, namely: that he had fired a pistol shot into the air to scare the group away from him, and had no intention of firing another, but the second shot was caused solely because Bray unexpectedly grabbed him and was wrestling with him. Counsel was granted the following abstract instruction:

INSTRUCTION NO. D-1

The killing of any human being by the act of another is excusable homicide when committed by accident while doing any lawful act by lawful means with usual and ordinary caution and without any unlawful intent. If you find from the evidence that Michael Triplett shot and killed Wayne Arterberry while doing any other lawful act by lawful means with usual and ordinary caution and without any unlawful intent, then you shall find the Defendant not guilty.

The State was granted an instruction on culpable negligence.

If Triplett in fact believed that he was in great danger of serious bodily harm at the hands of Evans or Arterberry and had good reason for such belief, he had a right to arm himself, and did not violate the law by firing the pistol into the air, and further if the jury believed that the reason Arterberry was shot was the explanation given by Bray and Triplett at trial, then the shooting was an excusable accident. It was, of course, a jury question whether this killing resulted from culpable negligence or non-criminal accident.

The jury retired to deliberate at 11:15 a.m., and returned a verdict of manslaughter 55 minutes later.

While not affecting the outcome of the trial, symptomatic of counsel's performance was his failure to perfect an appeal. Triplett v. State, 579 So.2d 555 (Miss. 1991). It was only after a petition for post-conviction relief was filed that this Court granted an out of time appeal.

The Defendant is entitled to a basic defense. The basic defense set out herein is not intended to become a standard of review or a template or criteria to be applied in future cases where ineffective assistance of counsel is raised; however, it is descriptive of the failure, in this case, of the defense attorney to perform any act basic to the defense of the accused. Basic defense in this case required complete investigation to ascertain every material fact about this case, favorable and unfavorable. It required familiarity with the scene, and the setting. It required through his own resources and process of the court learning the names of, and interviewing every possible eyewitness, and getting statements from each. It required prior to trial learning all information held by the state available to the defense through pre-trial discovery motions. No competent evidence available through pre-trial discovery should come as a surprise at trial.

Counsel may have been able to locate and interview some eyewitnesses, but despite reasonable effort unable to locate others. Here the use of subpoenas covers two purposes. It utilizes the services of the state in locating the witness for interview, and also secures his or her attendance at court. Miss. Code Ann. §§ 99-9-11, -17, -21 (1972); Stringer v. State, 627 So.2d 326, 329 (Miss. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2684, 129 L.Ed.2d 817 (1944). Failure of counsel to issue subpoenas even for friendly, favorable witnesses is perilous, because if for some reason the witness fails to appear, a pre-requisite for continuance is that he or she is either under process or a reasonable effort has been made to serve him or her with a subpoena. Eslick v. State, 238 Miss. 666, 119 So.2d 355 (1960); Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950); Bone v. State, 207 Miss. 20, 41 So.2d 347 (1949). In order to be entitled to a continuance because of an absent witness, counsel must demonstrate to the court that "he has used due diligence" to secure his presence. Miss. Code Ann. § 99-15-29 (1972). Embraced therein is the requirement that counsel has made a timely effort to place the absent witness under a subpoena. Pinson v. State, 518 So.2d 1220, 1222 (Miss. 1988); Watson v. State, 465 So.2d 1025, 1030 (Miss. 1985); Ford v. State, 227 So.2d 454 (Miss. 1969); Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (1949). Having a constitutional right at no cost to himself "to have compulsory process for obtaining witnesses in his favor," Miss. Const. Art. 3, § 26, there is simply no excuse for defense counsel failing to request a subpoena for his witnesses. Counsel was derelict in failing to seek pre-trial discovery and in requesting witness subpoenas.

This slaying took place in a county where neither the defendant, the victim, nor defense counsel lived. It is not shown in the record whether counsel interviewed any witness other than those who testified for the defense, but from his examination of those who testified for the state, it appears he had very little knowledge of the number or names of many of the eyewitnesses. In view of the different versions of how this killing took place, counsel should not have announced ready for trial, but sought a continuance until he had an opportunity to interview every possible eyewitness. Frierson v. State, 606 So.2d 604 (Miss. 1992); Kelly v. State, 553 So.2d 517, 520 (Miss. 1989); Plummer v. State, 472 So.2d 358 (Miss. 1985).

Every prudent attorney will, in ways in which it is ethical for him to do so, endeavor to learn as much as circumstances and inquiry reasonably permit about every prospective juror. This is especially true in rural counties. Generally, in homicide cases one or the other side seeks a special venire. Miss. Code Ann. § 13-5-77 (Supp. 1993). Counsel's failure to seek a special venire could very well have been trial strategy. Odd, in view of the disputed trial testimony, is counsel's failure to challenge a single prospective juror, which strongly suggests no preparation in the selection of the jury. And striking is his failure to challenge Goss, a juror who lived in the community where the killing occurred, and whose nephew had been shot and paralyzed in an incident similar to this case. It was an unfortunate gamble.

BATSON. Our sister state Alabama has a common-law tradition most nearly aligned to our own. We note that in Ex Parte Yelder, 575 So.2d 137 (Ala.), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991), her Supreme Court held that counsel's failure to raise the Batson question at trial not only was ineffective but presumptively prejudicial as well. The Alabama Supreme Court observed that the language of Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986), compelled this presumption. See also Yelder v. State, 575 So.2d 131, 136 (Ala. Crim. App. 1990) (Bowen, J., dissenting), rev'd in part, Ex Parte Yelder, 575 So.2d 137 (Ala.), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991).

We have adequately covered counsel's trial performance in paragraphs number (6), (7) and (8) of the factual summary.

As noted, under the testimony adduced at trial, the jury would have been warranted in returning a verdict either of murder, manslaughter, or not guilty because of accident.

While Triplett's trial testimony was weak, disputed, and also contradicted by his statement to the sheriff, he was entitled to have the jury instructed by an instruction specifically embracing the facts which he and Bray testified occurred which would have made this killing an excusable accident. The defense was entitled to an instruction which told the jury that if Triplett had good reason to believe and did believe his life was in danger when he armed himself with the pistol handed him by Gibson and then shot it into the air to frighten his attackers away, and the second shot was fired solely because Bray had unexpectedly grabbed him from behind and was tussling with him, and there was no intent on his part to fire the weapon the second shot, then he was not guilty of either murder or manslaughter.

Viewing this entire record, we are compelled to conclude that Triplett did not have the effective assistance of counsel. Perhaps one or two of the above-listed trial failures could have been minimized as trial strategy, Edwards v. State, 615 So.2d 590, 596 (Miss. 1993); Powell v. State, 536 So.2d 13, 16 (Miss. 1988); Mason v. State, 429 So.2d 569, 573-74 (Miss. 1983), in combination they cannot.

The inquiry cannot end there, however. "Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 687 (1984). Here the inquiry becomes even more difficult. We have held that in applying the two-pronged test of Strickland we look at the "totality of the circumstances." Frierson v. State, 606 So.2d at 608; Yarbrough v. State, 529 So.2d 659, 662 (Miss. 1988); Waldrop v. State, 506 So.2d 273, 275 (Miss. 1987). Further,

[A]ny court seeking to determine whether the constitutional guaranty has been met, must look at the entire performance of the attorney and determine whether the defense attorney was competent and whether he sincerely tried to assist his client. . ..

Unless the mistake or conduct was of such magnitude that the court concludes the lawyer was incompetent or evidenced a failure to conscientiously fulfill his adversarial role, we will conclude the constitutional guarantee for performance of counsel as enunciated in Strickland has been met.

We have examined the entire performance of counsel in this case, and conclude that the record reveals a marked failure of counsel to fulfill his adversarial role which casts grave doubt on the fairness of Triplett's trial. After considering the totality of his performance, it would be vain to extenuate his failures, or to conclude that somehow they did not prejudice Triplett's defense. As we recently held in Stringer v. State, 627 So.2d at 329:

Two important rules of law are at play here: a party is bound by the acts of his attorney [ Pace v. Financial Security Life of Miss., 608 So.2d 1135, 1138 (Miss. 1992); Sears, Roebuck Co. v. Devers, 405 So.2d 898, 900 (Miss. 1981); Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965)], and an accused is entitled to a reasonable defense in court with the effective assistance of counsel. Littlejohn v. State, 593 So.2d 20, 22 (Miss. 1992); U.S. Const.Amend. VI. The force of the first rule highlights the necessity of trial courts to insure the enforcement of the second.

REVERSED AND REMANDED FOR A NEW TRIAL.

PRATHER, P.J., SULLIVAN, PITTMAN and BANKS, JJ., Concur.

DAN M. LEE, P.J., concurs in result only.

McRAE, J., dissents with separate written opinion joined by JAMES L. ROBERTS, Jr. and SMITH, JJ.