Kirby v. State

379 So.3d 915

Donta KIRBY a/k/a Donta Terrell Kirby a/k/a Donta T. Kirby, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-KA-00320-COA

Court of Appeals of Mississippi.

01/23/2024

LOWNDES COUNTY CIRCUIT COURT, HON. LEE J. HOWARD, JUDGE

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ASHLEY LAUREN SULSER

BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. Donta Kirby was indicted for the first-degree murder of Lorenzo Halthon and two counts of possession of a weapon by a felon. Kirby proceeded to trial and was found guilty on all charges. The Lowndes County Circuit Court sentenced Kirby as a habitual offender and imposed consecutive sentences of life in prison without eligibility for parole for first-degree murder and service of two ten-year terms for the counts of possession of a firearm by a felon. Kirby appeals, raising three claims of error: ineffective assistance of counsel, improper limitation on cross-examination, and insufficient evidence to support the verdict. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On July 2, 2020, the body of Lorenzo Halthon was found on the side of a road in Lowndes County. Officers collected five .380-caliber shell casings and a projectile from the crime scene. The medical examiner recovered two projectiles from Halthon’s body. About a week after the murder, Trooper Wade Jones pulled Kirby over for traffic violations. The traffic stop resulted in Trooper Jones searching Kirby’s vehicle. After weapons were found in the vehicle, Kirby ran from the scene but was ultimately located about twelve hours later. Among other weapons, Trooper Jones found a .380-caliber handgun in Kirby’s vehicle. A ballistics expert from the crime lab examined the casings from the scene and projectiles from the victim’s body and determined they were fired from the .380 firearm found in Kirby’s vehicle. Kirby would later admit the gun "had a body on it." The victim’s wife testified Kirby was the last known person to see Halton alive and he admitted to being with Halton the night he was killed. Surveillance video from a nearby business also showed a black truck similar to Kirby’s driving toward and away from the murder scene near the time a neighbor heard gunshots. Further, Captain Bryan Turner searched Kirby’s apartment with the consent of Kirby’s wife. In a bedroom in the apartment, Captain Turner found "some dirty clothes belonging to Mr. Kirby, some dirty clothes belonging to Mrs. Kirby, men’s underwear and socks and things of that nature." While searching a dresser in the bedroom, Captain Turner found a Crown Royal bag that held a .38-caliber firearm and prescriptions and documents bearing Kirby’s name.¹

¶3. Based on this evidence, a Lowndes County grand jury indicted Kirby for first-degree murder of Halthon, possession of a .380 handgun by a felon, and possession of a .38-caliber firearm by a felon. Upon the State’s request, the trial court amended the indictment to include a habitual-offender designation under Mississippi Code Annotated section 99-19-81 (Rev. 2020). At trial, defense counsel pursued the theory that Kirby only fled the scene because of the multiple other weapons found in the rear of his vehicle and not due to the murder weapon later discovered in a separate part of the vehicle behind the front glove box. Further, defense counsel argued that Kirby only received the murder weapon after the killing had been completed by someone else. At the completion of trial, the jury found Kirby guilty of all three counts charged in the indictment.

DISCUSSION

¶4. Kirby raises three issues on appeal: ineffective assistance of counsel, limited cross-examination, and sufficiency of the evidence. Finding no error, we affirm all three convictions and sentences.

I. Ineffective-Assistance of Counsel

[1–4] ¶5. Kirby’s first issue is an ineffective-assistance-of-counsel claim. "Judicial scrutiny of counsel’s performance must be highly deferential." Moffett v. State, 354 So. 3d 929, 936 (¶14) (Miss. Ct. App. 2022). In general, "claims of ineffective assistance of counsel should be raised in a motion for post-conviction relief, not on direct appeal." Blocton v. State, 340 So. 3d 384, 393 (¶35) (Miss. Ct. App. 2022) (quoting Battle v. State, 269 So. 3d 325, 330 (¶19) (Miss. Ct. App. 2018)). A claim of ineffective assistance of counsel is not addressed on direct appeal unless

(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Hinton v. State, 311 So. 3d 1213, 1215 (¶9) (Miss. Ct. App. 2020). Expanding on this rule, our courts have also stated that appellate courts "may address such ‘claims on direct appeal when the record affirmatively shows that the claims are without merit.’ " Murray v. State, 345 So. 3d 610, 621 (¶26) (Miss. Ct. App. 2022). But this Court may only consider "an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record." Dartez v. State, 177 So. 3d 420, 423 (¶18) (Miss. 2015).²

[5] ¶6. Kirby stipulates that the record is adequate for this Court to rule on his ineffective-assistance claim. While not explicitly stipulating that the record is adequate, the focus of the State’s argument on appeal is that Kirby’s claims are without merit and do not meet the criteria to show ineffective assistance by Kirby’s counsel. Because we find the record is sufficient pertaining to the alleged hearsay testimony and the evidence of other bad acts (possession of other guns), we address Kirby’s ineffective-assistance claim.

¶7. Kirby argues that he received ineffective assistance of counsel because his trial counsel failed to make certain objections during trial. Specifically, he alleges that his counsel (1) failed to object to hearsay testimony and (2) failed to object to evidence of other crimes or bad acts.

[6, 7] ¶8. "A strong but rebuttable presumption exists that counsel’s performance was effective." Moffett, 354 So. 3d at 936 (¶14). "[T]o prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial." Morrow v. State, 275 So. 3d 77, 83 (¶24) (Miss. 2019) (quoting Holly v. State, 716 So. 2d 979, 989 (¶37) (Miss. 1998)) (applying the two-pronged test for ineffective-assistance-of-counsel claims announced in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "Whether counsel’s efforts were both deficient and prejudicial is examined based on the totality of the circumstances." Reed v. State, 204 So. 3d 785, 790 (¶17) (Miss. Ct. App. 2016). The burden of proving both prongs for ineffective assistance is on the defendant, and "[i]f either prong is not met, the claim fails." Murray, 345 So. 3d at 621 (¶28) (quoting Havard v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006)).

[8, 9] ¶9. "Decisions that fall within the realm of trial strategy do not amount to ineffective assistance of counsel." Ford v. State, 230 So. 3d 316, 320 (¶9) (Miss. Ct. App. 2017). For "matters of trial strategy, this Court generally ’ defers to the judgment of counsel." Braggs v. State, 121 So. 3d 269, 275 (¶20) (Miss. Ct. App. 2013) (quoting Houston v. State, 887 So. 2d 808, 815 (¶34) (Miss. Ct. App. 2004)). Trial counsel’s decision not to object is "presumed strategic unless counsel’s tactics are shown to be so ill chosen that it permeates the entire trial with obvious unfairness." Greenleaf v. State, 267 So. 3d 749, 752 (¶11) (Miss. 2019) (quoting Rogers v. State, 85 So. 3d 293, 297 (¶16) (Miss. 2012)).

A. Hearsay Testimony

[10] ¶10. First, Kirby claims his counsel was deficient for failing to object to hearsay testimony from Trooper Jones. Kirby alleges that Jones’s testimony recounting another officer’s brief statement before the traffic stop about Kirby running drugs, guns, and money between Mississippi and Arkansas was hearsay. He argues that his trial counsel should have objected to this irrelevant hearsay testimony and that the failure to take action to exclude this information resulted in an unfair trial.

[11–13] ¶11. "The failure of counsel to make certain objections may fall within the ambit of trial strategy, and therefore may not give rise to a claim for ineffective assistance of counsel." Marrow, 275 So. 3d at 84 (¶25) (quoting Conners v. State, 92 So. 3d 676, 686 (¶25) (Miss. 2012)). "There is a presumption that decisions made by defense counsel are strategic, and this Court will not second-guess counsel’s decisions." Moffett, 354 So. 3d at 937 (¶15) (internal quotation marks omitted) (quot- ing Shinn v. State, 174 So. 3d 961, 966 (¶12) (Miss. Ct. App. 2015)). To overcome this presumption, Kirby must show that his counsel’s decision not to object was ill-chosen and caused obvious unfairness across the entire trial. The decision of trial counsel to not raise an objection to this testimony by Trooper Jones is a decision that falls within the ambit of trial strategy. It was a reasonable strategy not to object to the statement about trafficking because it could help dilute the powerful evidence that Kirby was caught with the murder weapon by demonstrating the possibility he obtained it from someone else. Defense counsel did not deny that the murder weapon was found in Kirby’s vehicle. Instead, his trial counsel strategically challenged whether Kirby was the person responsible for using the gun to murder Halthon and argued that Kirby had not received possession of the gun until after the murder had been committed.

[14] ¶12. In addition, we are mindful that "[a]n out-of-court statement is hearsay only if it is offered ‘to prove the truth of the matter...