Lucas Edwards a/k/a Lucas Lorenzo Edwards v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-00780-COA

LUCAS EDWARDS A/K/A LUCAS LORENZO APPELLANT
EDWARDS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/09/2017
TRIAL JUDGE: HON. MARGARET CAREY-McCRAY
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
LUCAS EDWARDS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/12/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., GREENLEE AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On April 20, 2015, Lucas Edwards was indicted by a Sunflower County grand jury

for possession of a firearm by a felon.1 On September 27, 2016, the State made a motion to

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The original indictment charged Edwards with five separate crimes. The record
indicates that on October 3, 2016, the court granted the State’s request to nolle prosequi
Count I, sexual battery, Count II, rape, and Count V, accessory after the fact, because the
victim was then married to Edwards. Likewise on October 19, 2016, the court entered a
nolle prosequi dismissing Count III of the indictment (aggravated assault on a law
enforcement officer). At the time of trial, Edwards’s indictment charged him with the
possession of a firearm by a felon.
amend the indictment to charge Edwards as a habitual offender in accordance with

Mississippi Code Annotated section 99-19-81 (Rev. 2015). Additionally, on October 14,

2016, the State gave notice that it would seek a firearm sentencing enhancement in

accordance with Mississippi Code Annotated section 97-37-37(2) (Rev. 2015). Following

a two-day trial, the jury returned a guilty verdict pursuant to Mississippi Code Annotated

section 97-37-5 (Rev. 2014). The Sunflower County Circuit Court sentenced Edwards to two

consecutive ten-year sentences as a nonviolent habitual offender. Edwards filed for a motion

for a new trial, which the court denied.

¶2. Edwards appeals, raising the following issues: (1) the trial court erred in failing to

grant a mistrial; (2) Edwards did not receive proper notice of the firearm sentencing

enhancement; (3) Edwards did not receive proper notice that he was being charged as a

habitual offender; and (4) Edwards did not receive effective assistance of counsel.2 Finding

no error, we affirm.

FACTS

¶3. On October 10, 2014, at around 9:00 a.m., Officer Antoine Weeks, a police officer

with the Indianola Police Department, received a call from dispatch that the subject of a

felony warrant was riding a bicycle around South Davis Circle in Indianola, Mississippi.

After arriving at the area, Officer Weeks noticed someone riding a bicycle, but once the

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The Office of Indigent Appeals filed a brief on Edwards’s behalf and argued the
first issue. Edwards raised the other issues in his pro se supplemental brief.

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person saw the patrol car the individual took off through some houses. At that point,

Investigator Jim Hammer heard that there was a foot pursuit involving the subject of a

warrant who was headed toward a home at 202 South Davis Circle in Indianola, Mississippi.

Investigator Hammer, along with Investigator Bennie Milton, Officer William Nevels, and

Officer Marshall Hodge, proceeded to South Davis Circle.

¶4. Once the law enforcement officers arrived at the home, they asked the homeowner if

they could search for Edwards. Investigator Hammer went into the home and did not see

Edwards. He then went outside and circled around the house, where he saw Officer Nevels

and Officer Hodge outside a shed door. As they were trying to open the shed door, two shots

were fired from inside the shed. Officer Nevels testified that none of the officers fired their

weapons. They retreated, and Investigator Hammer radioed dispatch to report that shots had

been fired at that address.

¶5. Approximately thirty minutes after shots were fired from inside the shed, the

Sunflower County Sheriff, James Haywood, arrived. Sheriff Haywood testified that he went

to the scene because he received a call that “the police department [was] gonna kill Lucas

Edwards” and that he needed to come immediately. The record indicates that the sheriff had

a personal relationship with Edwards. Sheriff Haywood, who had training as a hostage

negotiator, talked with Edwards by cellular telephone. According to the sheriff, he believed

no one else was inside of the shed because he did not hear anyone else on the phone.

Edwards never told Sheriff Haywood that anyone else was inside the shed. After two hours

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of negotiations, Edwards opened the door to the shed, threw out the .44-caliber handgun, and

surrendered.

¶6. Mike Hood, a forensic section chief with the Mississippi Forensic Laboratory,

testified at trial that the crime lab was unable to find any latent prints on the pistol with

enough detail for a comparison analysis. Hood told the jury that although the crime lab was

unable to find a print, such inability was not unusual because “most of the prints on weapons

don’t develop because the gun is made to repel the moisture of a print.” Starks Hathcock,

a forensic scientist specializing in firearms and tool-mark identification, testified that the

shell casings found in the shed had been ejected from the same gun that was collected from

Edwards at the scene.

¶7. After hearing all of the evidence, the jury returned a guilty verdict. Edwards appeals.

ANALYSIS

1. The trial court did not commit error by not ordering a mistrial sua
sponte.

¶8. On the first day of trial, an in-chambers conference occurred among the court,

Edwards, Edwards’s attorney, the prosecutor, and the attorney for Neshawndra Sims,

Edwards’s wife and the victim in the dismissed counts. During the phone conference, Sims

stated under oath that she and Edwards were separated and that she would not come back to

testify for him. Sims explained that she “was about to make a mistake and take the stand and

try to lie for [Edwards] and help [Edwards] . . . to help him to be free or whatever, but [she]

chose not to do that. . . . [She] was gonna lie for him.” The circuit judge then asked the

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attorneys if they had any questions for Sims, and they each said, “no.”

¶9. After the prosecution rested, Edwards testified that Sims was in the shed with him.

He stated that she fired the gun and threw it out of the shed.3 Edwards alleges error in the

following exchange on Edwards’s cross-examination by the State:

Q. Where is your wife, is she here today?

A. She ran off.

Q. When did she run off?

A. Thursday of last week.

Q. And you, me, your attorney[,] and the Judge had a conversation with
her back in the Judge’s chambers yesterday, didn’t we?

A. Yes, sir, we did.

Q. And you recognized her voice, didn’t you?

A. Yes, sir, I did.

Q. Do you remember her telling the Judge that she wasn’t gonna testify for
you because you wanted her to lie for you and she wasn’t gonna lie for
you?

A. All out of anger, sir.

Q. Huh?

A. She said all that out of anger. I got texts where she texted me saying
why she did it.

Q. I didn’t ask you about texts you got.

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The police searched the area and did not find anyone else in the shed.

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A. Okay. But she did all that out of anger.

Q. We were back here in chambers and she said she wasn’t gonna testify
and lie for you, right?

A. She did say that.

Q. And that’s why she isn’t here today, is it?

A. No, sir. She gave her testimony months or probably a year ago.

Q. No, sir. We’re not talking about testimony she might have given at
some other time. I’m talking about back there in Judge’s chambers.

....

Q. But she told us yesterday she wasn’t gonna be here and testify and lie
for you and that’s what you tried to get her to do, right?

A. Yes, sir.

Edwards’s trial counsel never objected. Edwards claims that this line of questioning was

hearsay and that it should have resulted in a mistrial even though his attorney did not object

or request a mistrial.

¶10. This Court reviews the grant or denial of a mistrial under an abuse of discretion

standard of review. Wilson v. State, 102 So. 3d 1200, 1205 (¶20) (Miss. Ct. App. 2012).

When considering whether to sua sponte declare a mistrial:

[Caselaw] unequivocally holds that the trial judge is in the best position for
determining the prejudicial effect of an objectionable remark. The judge is
provided considerable discretion to determine whether the remark is so
prejudicial that a mistrial should be declared. Where serious and irreparable
damage has not resulted, the judge should admonish the jury then and there to
disregard the impropriety.

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Id. at 1205-6 (¶20) (quoting Edwards v. State, 856 So. 2d 587, 593 (¶19) (Miss. Ct. App.

2003)).

¶11. On appeal, Edwards argues that the trial court committed error by not sua sponte

ordering a mistrial after the State inquired about the conversation in chambers. Specifically,

Edwards claims this deprived him of a fair trial and due process of law. However, Edwards

never asked for a mistrial nor was there any objection to the line of questioning which he

now claims should have resulted in a mistrial. It is well-established that “issues not

presented to the trial court for lack of contemporaneous objection are procedurally barred,

and error, if any, is waived.’” Goff v. State, 14 So. 3d 625, 655 (¶118) (Miss. 2009) (citing

Wells v. State, 903 So. 2d 739, 742 (¶6) (Miss. 2005)). As Edwards admits, he never

requested a mistrial or made any objection during that portion of his cross-examination.

Consequently, this issue is procedurally barred.

¶12. Procedural bar notwithstanding, Edwards’s argument has no merit. “Mistrials should

only be declared sua sponte when manifestly necessary.” Arrington v. State, 267 So. 3d 753,

758 (¶17) (Miss. 2019). The Mississippi Supreme Court “has recognized several examples

where a declaration of a mistrial would likely be a manifest necessity: failure of a jury to

agree on a verdict; biased or otherwise tainted jury; improper separation of the jury; where

jurors failed to follow instructions.” Id. (quoting Spann v. State, 557 So. 2d 530, 532 (Miss.

1990)). After review, we cannot find that Edwards’s testimony on cross-examination rises

to this level. Accordingly, we find that there is no error in the trial court’s failing to grant

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a mistrial sua sponte.

2. Edwards received proper notice of the sentencing enhancement.

¶13. Edwards next argues that he did not receive sufficient notice that the State intended

to seek a sentence enhancement per section 97-37-37(2) because it was not mentioned in his

indictment. Section 97-37-37(2) reads as follows:

Except to the extent that a greater minimum sentence is otherwise prohibited
by any other provision of law, any convicted felon who uses or displays a
firearm during the commission of any felony shall, in addition to the
punishment provided for such felony, be sentenced to an additional term of
imprisonment in the custody of the Department of Corrections of ten (10)
years, to run consecutively, not concurrently, which sentence shall not be
reduced or suspended.

The State filed a Notice to Request Enhanced Penalty on October 14, 2016. Edwards’s jury

trial was held in March 2017.

¶14. “Whether a defendant received fair notice of a sentence enhancement is a question of

law that we review de novo.” Sallie v. State, 155 So. 3d 760, 762 (¶7) (Miss. 2015) (citing

Williams v. State, 131 So. 3d 1174, 1176-77 (¶6) (Miss. 2014)). This Court has stated that:

No [caselaw] requires that an indictment include an actual reference to the
sentence enhancement; rather, federal and Mississippi jurisprudence only
require that an indictment include the facts involved in such an applicable
sentence enhancement, such that those facts are required to be proven beyond
a reasonable doubt.

Dortch v. State, 231 So. 3d 1017, 1021 (¶11) (Miss. Ct. App. 2017).

¶15. Here, Edwards’s indictment included the facts necessary to support the sentence

enhancement. Count III of the indictment charged Edwards with aggravated assault of a law

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enforcement officer “by shooting at him with a deadly weapon, to-wit: a pistol,” and Count

IV charged him with “possession of a firearm, to-wit: a pistol” by a convicted felon. Further,

Edwards’s convicted felon status was stipulated to by the parties at trial. The pistol that was

allegedly used by Edwards to shoot at the officer was the same pistol that Edwards was

alleged to possess. So “[u]pon receiving his indictment, [Edwards] knew or should have

known that the firearm enhancement was a possibility with respect to the particular crime[s]

for which he was charged.” Id. at (¶12).

3. Edwards received proper notice that he was being charged as a
habitual offender.

¶16. Edwards argues that he was not properly notified that the State planned to charge him

as an habitual offender. Edwards was originally indicted on April 20, 2015. On September

27, 2016, the State filed a motion to amend the indictment in order to charge Edwards as a

habitual offender pursuant to section 99-19-81. The motion specifically listed Edwards’s two

prior convictions—attempted grand larceny and grand larceny—that made him eligible for

habitual-offender status. The record contains no response from Edwards to the State’s

motion. That motion was granted on November 4, 2016. The court held Edwards’s trial on

March 7 and March 8, 2017. At sentencing, Edwards made no objections to Exhibits S-9 and

S-10 which were the sentencing orders and a pen pack from the Mississippi Department of

Corrections showing his previous convictions and how long he was incarcerated. He also

made no argument during sentencing.

¶17. In Boyd v. State, the Mississippi Supreme Court clarified that “adequate notice is

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achieved through formal pleadings which include the specific amendment to be offered and

which are filed sufficiently in advance of trial to ensure that a defendant will have a ‘fair

opportunity to present a defense’ and will not be ‘unfairly surprised.’” Hensley v. State, 156

So. 3d 346, 350 (¶14) (Miss. Ct. App. 2014) (quoting Boyd, 113 So. 3d 1252, 1256 (¶12)

(Miss. 2013)). The State’s motion included the “specific amendment” that had been filed

approximately five months before trial. In Hensley, 156 So. 3d at 350 (¶15), this Court

explained that our appellate courts have found sufficient notice when amendments were filed

days before trial, months before trial, and even on the first day of trial.4 Accordingly, we find

that Edwards received sufficient notice of the State’s intention to charge him as a habitual

offender.

4. Edwards did not receive ineffective assistance of counsel.

¶18. Lastly, Edwards claims that he received ineffective assistance of counsel based on his

attorney’s failure to challenge the State’s request to amend the indictment to include a

firearm enhancement and habitual-offender status. The Mississippi Supreme Court recently

reiterated that ineffective-assistance-of-counsel claims may be resolved on direct appeal

“when the record affirmatively shows that the claims are without merit.” Ross v. State, 288

So. 3d 317, 324 (¶29) (Miss. 2020). In Stringer v. State, 454 So. 2d 468, 476 (Miss. 1984),

the Mississippi Supreme Court adopted the Strickland v. Washington5 two-part test for

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We recognize that Mississippi Rule of Criminal Procedure 14.1(b)(2), which
became effective July 2017, now requires defendants receive at least thirty days’ notice.
5
Strickland v. Washington, 466 U.S. 668 (1984).

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determining the validity of ineffective assistance of counsel claims. “A successful claim

requires a defendant to put forth sufficient evidence which, when viewed under the totality

of the circumstances, proves: 1) the defense attorney’s performance was deficient and 2) the

deficiency prevented the defendant from receiving a fair trial.” Havard v. State, 94 So. 3d

229, 239 (¶33) (Miss. 2012) (footnote and internal quotation marks omitted) (emphasis

added).

¶19. Edwards offers no argument or proof as to exactly what objection his attorney should

have made in an effort to prevent his past criminal convictions from being used against him.

Apparently, Edwards wanted his attorney to somehow, through an objection, erase his

criminal past, so he would not be held accountable for his continued felony violations of

Mississippi law. The State provided sufficient notice at least five months before trial of its

intent to seek the firearm enhancement allowed by statute and have the habitual offender law

apply if Edwards were convicted. The State also introduced the necessary and proper

exhibits demonstrating Edwards’s prior convictions. Therefore, Edwards’s attorney’s failure

to object does not rise to ineffective assistance of counsel, and this issue is without merit.

¶20. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ.,
CONCUR.

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