Paula Brock v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-00739-COA

PAULA BROCK APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/05/2021
TRIAL JUDGE: HON. STANLEY ALEX SOREY
COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: CHRISTOPHER DOUGLAS HENNIS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/20/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

SMITH, J., FOR THE COURT:

¶1. A Smith County Circuit Court jury convicted Paula Brock of possession of more than

two grams but less than ten grams of methamphetamine. The Smith County Circuit Court

sentenced Brock to serve eight years in the custody of the Mississippi Department of

Corrections (MDOC) and to pay a $2,000 fine. On appeal, Brock argues that her trial

attorney provided ineffective assistance of counsel. Finding no error, we affirm Brock’s

conviction and sentence.

FACTS
¶2. On November 3, 2019, Deputy Marquize Nixon with the Smith County Sheriff’s

Department initiated a traffic stop after observing a vehicle cross into the opposite lane of

traffic and fail to stop at a stop sign. Brock was the only person inside the vehicle, and

Deputy Nixon discovered during the traffic stop that Brock was driving with a suspended

driver’s license. After asking Brock to exit her vehicle, Deputy Nixon noticed a strong odor

of marijuana. When Deputy Nixon asked whether Brock had any marijuana in her vehicle,

Brock answered affirmatively and retrieved from her purse a green leafy ball that looked and

smelled like marijuana. Brock denied having any other illegal substances in her possession.

¶3. Deputy Jason Runnels, also with the Smith County Sheriff’s Department, arrived at

the scene to assist Deputy Nixon. When Deputy Runnels searched Brock’s purse, he

discovered a plastic bag containing a crystal-like substance that appeared to be

methamphetamine. After Brock admitted that the crystal-like substance belonged to her,

Deputy Nixon secured the evidence. He arrested Brock for possession of methamphetamine

and marijuana and issued Brock citations for her three traffic violations. Subsequent tests

performed on the crystal-like substance found inside Brock’s purse confirmed that the

substance was 6.43 grams of methamphetamine.

¶4. Following the trial testimony and evidence, the jury found Brock guilty of possessing

more than two grams but less than ten grams of methamphetamine. The circuit court

sentenced Brock to serve eight years in MDOC’s custody and to pay a fine of $2,000. Brock

filed an unsuccessful motion for judgment notwithstanding the verdict or, alternatively, a

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new trial. Aggrieved, Brock appeals.

DISCUSSION

¶5. In her sole issue on appeal, Brock contends that her trial attorney provided ineffective

assistance of counsel. Generally, ineffective-assistance-of-counsel claims are more

appropriately raised in a motion for post-conviction relief. Ford v. State, 333 So. 3d 896, 912

(¶41) (Miss. Ct. App. 2022). We address ineffective-assistance claims on direct appeal,

however, “when ‘[1] the record affirmatively shows ineffectiveness of constitutional

dimensions, or [2] the parties stipulate that the record is adequate and the Court determines

that the finding of facts by a trial judge able to consider the demeanor of the witnesses, etc.,

are not needed.’” Id. (quoting Ross v. State, 288 So. 3d 317, 324 (¶29) (Miss. 2020)). We

also review ineffective-assistance claims on direct appeal if “the record affirmatively shows

the claims [lack] merit.” Id. at 912-13 (¶41).

¶6. Here, Brock asserts that specific statements her trial attorney made during voir dire

and closing argument, as well as jury instruction D-12, misinformed the jury as to the State’s

burden of proof, improperly shifted the burden of proof to the defense, and misinformed the

jury that acquittal was only appropriate if Brock actually proved her innocence. Upon

review, we find the record before us is sufficient to address on direct appeal Brock’s claim

of ineffective assistance because the record shows the claim lacks merit.

¶7. We review Brock’s “claim of constitutionally ineffective assistance of counsel . . . de

novo.” Ford, 333 So. 3d at 913 (¶42). To prove ineffective assistance, Brock “must show

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that (1) [her] counsel’s performance was deficient, and (2) the deficient performance

prejudiced [her] defense.” Id. Under the first prong, Brock must demonstrate her “counsel

made errors so serious that he or she was not functioning as the counsel guaranteed [to

Brock] by the Sixth Amendment.” Cork v. State, 329 So. 3d 1183, 1192 (¶32) (Miss. 2021)

(quoting Chamberlin v. State, 55 So. 3d 1046, 1050 (¶4) (Miss. 2010)). The second prong

requires Brock to establish that her “counsel’s errors were so serious as to deprive [Brock]

of a fair trial, a trial whose result is reliable.” Id. (quoting Chamberlin, 55 So. 3d at 1050

(¶4)). We “look at the ‘totality of the circumstances to determine whether counsel’s efforts

were both deficient and prejudicial. There is a strong but rebuttable presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’” Ford,

333 So. 3d at 913 (¶42) (quoting Henderson v. State, 281 So. 3d 1058, 1063 (¶16) (Miss. Ct.

App. 2019)). “[E]ven where professional error is proven, [the appellate c]ourt must

determine if there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.” Cork, 329 So. 3d at 1192 (¶33)

(quoting Chamberlin, 55 So. 3d at 1050 (¶5)).

¶8. Brock first takes issue with statements her attorney made during voir dire.

Specifically, Brock’s attorney stated:

And so, there’s quite a number of you that had jury experience[,] and
the biggest thing to take away from this is the burden of proof. In a civil case,
it’s a preponderance[-]of[-]the[-]evidence standard, which is like 50.1 percent
of the evidence tilts the scale in favor of one party.

Here, the State, as I stated, has to prove [its] case beyond a reasonable

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doubt, which is beyond reasonable probability and belief.

....

I know you have taken several oaths today, and under your oaths as a
juror, it’s your duty, it’s as much your duty to convict the guilty and . . . acquit
the innocent. And if the State doesn’t meet [its] burden on every element of
the charge that [it is] bringing today, it’s your duty to acquit Ms. Brock.

(Emphasis added). On appeal, Brock claims that the first italicized comment by her attorney

lessened the State’s burden of proof. In addition, Brock asserts that the second italicized

comment by her attorney improperly shifted the burden of proof from the State to the defense

and required Brock to prove her actual innocence.

¶9. During closing arguments, Brock’s attorney made another reference to the jury’s duty

to “acquit the innocent.” According to Brock, this comment further served to confuse jurors

and to misinform them as to the law and their duty. In the context of his overall closing

argument, Brock’s attorney stated:

And I know you have heard this over and over, but I would like you to
pay attention to Jury Instruction D-2. It states the Court instructs the jury that
you are bound in deliberating upon this case to give Paula Brock the benefit
of any reasonable doubt. That’s any reasonable doubt of her guilt that arises
out of the evidence or the want of evidence in this case.

And that goes back to my argument about the State had to prove the
entire amount was a controlled substance, and [the State] failed to do that.
There’s always reasonable doubt of the defendant’s guilt when the evidence
simply makes it probable that the defendant is guilty.

Mere probability of guilt will never warrant you to convict the
defendant. It is only when after examining the evidence on the whole you are
able to say on your oaths beyond a reasonable doubt that the defendant is guilty
that the law will permit you to find him or her guilty. You might be able to say

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that you believe him or her to be guilty, and yet, if you are not able to say on
your oaths beyond a reasonable doubt that he/she is guilty, it is your sworn
duty to find the defendant not guilty. And I believe this is the most important
jury instruction.

....

[A]lso, the Court instructs you that it is as much your sworn duty as
jurors to acquit the innocent as it is to convict the guilty.

(Emphasis added).

¶10. Finally, Brock contends that jury instruction D-12, which her attorney proposed and

the circuit court gave, contained the same misstatement of the law that only served to confuse

the jury. As given, jury instruction D-12 stated, “The Court instructs the jury that it is as

much your sworn duty as jurors to acquit the innocent as it is to convict the guilty; and under

the law of the State of Mississippi, all persons are presumed to be innocent until proven

guilty beyond a reasonable doubt.”

¶11. Relevant to Brock’s arguments, this Court previously has addressed a jury instruction

with language similar to that now complained of by Brock on appeal. As we discussed in

Johnson v. State, 19 So. 3d 145, 146 (¶7) (Miss. Ct. App. 2009), “[t]he complained[-]of jury

instruction stated: ‘The Court instructs you that it is just as much your duty under the law and

upon your oaths as jurors to free an innocent person by your verdict of not guilty as it is for

you to convict a guilty person.’” Much like Brock’s assertions here regarding jury instruction

D-12 and her attorney’s comments during voir dire and closing arguments, Johnson claimed

in his case that the jury instruction at issue “impermissively shifted the burden of proof” to

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the defense, “thereby requiring him to prove his innocence[,]” and it “confused the jurors.”

Id. On appeal, this Court found that the jury instruction did not impermissibly shift the

burden of proof from the State to the defendant and that the inclusion of the jury instruction

failed to create any injustice for Johnson. Id. at 147 (¶¶10-11).

¶12. After reviewing the totality of the circumstances in the present case, we find Brock

has failed to establish that her “counsel’s efforts were both deficient and prejudicial,” as

required to prove a claim of ineffective assistance. Ford, 333 So. 3d at 913 (¶42) (quoting

Henderson, 281 So. 3d at 1063 (¶16)). As in Johnson, we conclude that neither the isolated

statements Brock’s attorney made nor the inclusion of D-12 among the jury instructions

“impermissibly shift[ed] the burden of proof from the State to the defendant” or “create[d]

any injustice” for Brock. Johnson, 19 So. 3d at 147 (¶¶10-11). Despite Brock’s complaints

about her trial attorney’s performance, the record reflects that her attorney repeatedly

emphasized throughout the trial that the State held the burden of proof and had to satisfy its

evidentiary burden beyond a reasonable doubt. Even though no error occurred here, we take

this opportunity to again remind trial attorneys of Mississippi’s well-established precedent

that “reasonable doubt defines itself[,]” and therefore, any attempts to define reasonable

doubt are improper. McCammon v. State, 299 So. 3d 873, 897 (¶97) (Miss. Ct. App. 2020)

(quoting Fulgham v. State, 46 So. 3d 315, 332 (¶46) (Miss. 2010)). As stated, however, no

such error occurred during Brock’s trial, and the record shows that the circuit court properly

instructed the jury that (1) the law presumed Brock was innocent, and she did not have to

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prove her innocence; (2) the State had the burden to prove Brock was guilty of every element

of the crime beyond a reasonable doubt; (3) the attorneys’ statements were not evidence; (4)

the jury should base its verdict on the actual evidence; and (5) the jury should consider the

jury instructions as a whole and not single out any one instruction. See Pope v. State, 330

So. 3d 409, 422 (¶55) (Miss. Ct. App. 2021) (recognizing that appellate courts review all jury

instructions together and will find no reversible error where the instructions as a whole

accurately announce the law).

¶13. In light of the State’s substantial evidence against Brock at trial and the circuit court’s

proper instructions to the jury, we conclude that even if Brock had proved her attorney erred,

she has not shown any “reasonable probability that, but for [her] counsel’s unprofessional

errors, the result of the proceedings would have been different.” Cork, 329 So. 3d at 1192

(¶33) (quoting Chamberlin, 55 So. 3d at 1050 (¶5)). We therefore find that this assignment

of error lacks merit.

CONCLUSION

¶14. Because we find no merit to Brock’s claim of ineffective assistance of counsel, we

affirm her conviction and sentence.

¶15. AFFIRMED.

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

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