164 So. 3d 484
Miss. Ct. App.2014Background
- On Sept. 29, 2011, intruders forced entry into Karen Winter’s apartment, pointed a gun at her, bound her and stole cash, electronics and keys.
- Victim testified the gunman wore a hoodie and a bandana but had shoulder-length (or longer) dreadlocks.
- Police soon stopped a vehicle with six Black males; officers found two loaded guns and one of Winter’s laptops in the car; only Lathan had long dreadlocks.
- Three co-defendants (Bluitt, Oglen, Satterfield) testified at trial and implicated Lathan; Lathan and his mother offered an alibi that his sister purportedly relayed to police but the sister did not testify.
- A jury convicted Lathan of armed robbery and burglary; he received consecutive terms (30 years for armed robbery; 15 years with 5 suspended for burglary).
- Lathan appealed, raising (1) prosecutorial improprieties in closing argument (including comment on failure to call his sister and an alleged invitation to punish for uncharged conduct), (2) ineffective assistance for failure to object, and (3) denial of his preferred accomplice-testimony instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor commented on failure to call sister as witness | State argued it could comment on credibility and on absence of a close, defendant-linked alibi witness | Lathan argued comment improperly invited inference from silence and deserved reversal | Court: No reversible error; comment related to credibility and was allowed because sister was closer to defendant and testimony was inconsistent (per Ross/Brown reasoning) |
| Prosecutor invited jury to hold Lathan accountable for uncharged crime (attempted murder) | State argued remarks emphasized seriousness of evidence and were reasonable deductions from testimony that victim feared death and guns were present | Lathan argued remarks asked jury to punish for uncharged offense | Court: No error; comments were within wide latitude of closing argument and tied to evidence of a gun and victim’s fear (elements of armed robbery) |
| Ineffective assistance for failing to object to above comments | Lathan: counsel’s failure to object was deficient and prejudicial | State: even without objections, comments were permissible so no deficient performance or prejudice | Court: No ineffective-assistance; comments were permissible and not prejudicial under Strickland standard |
| Denial/refusal of defendant’s preferred accomplice instruction | Lathan: requested instruction without qualification; court’s version (D-4A) added a limiting phrase and he argued this improperly watered down caution | State: trial court gave cautionary accomplice instruction (D-4A) modeled on Williams special concurrence and found corroboration in victim’s testimony and other evidence | Court: No abuse of discretion; D-4A adequately instructed jury and was given even though judge thought corroboration existed; refusal of duplicative/unnecessary language was proper |
Key Cases Cited
- Dunaway v. State, 551 So. 2d 162 (prosecutorial argument reversible only if it creates unjust prejudice)
- Ross v. State, 603 So. 2d 857 (State may comment on absence of closely related alibi witness; Brown rule)
- Williams v. State, 32 So. 3d 486 (accomplice testimony requires cautionary instruction when uncorroborated; concurrence proposes model language)
- Dora v. State, 986 So. 2d 917 (State may comment on weaknesses in defendant’s case; context matters)
- Ivy v. State, 589 So. 2d 1263 (limits on prosecutor’s argument: facts in evidence and reasonable deductions)
- Holland v. State, 705 So. 2d 307 (wide latitude for attorneys in argument within evidentiary bounds)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)