243 So. 3d 222
Miss. Ct. App.2017Background
- Maurice Colly (83) was found murdered in the trunk of his car; blunt-force injuries and asphyxiation. Evidence showed ATM withdrawals using his cards and personal property found with the defendant.
- Glen Davis was arrested, tried by jury in Hancock County, convicted of deliberate-design murder, and sentenced as a habitual offender to life without parole.
- State evidence: ATM surveillance placing a car like Colly’s at withdrawals, Davis’s fingerprint on Colly’s car handle, Davis’s DNA on a cigarette and a glove found in evidence, items belonging to Colly recovered from a car Davis abandoned, and shoeprint/shoe match evidence.
- Defense theory: Davis testified he was a handyman for Colly, implicated two other suspects (Carol Babb and Otis Stewart), and claimed some items were given to him by Colly; sought to call Paula Jacobson to link Babb to Colly.
- Trial court excluded Jacobson as a witness for failure to disclose under URCCC 9.04(C)(1); the jury convicted. Davis’s appellate counsel filed a Lindsey brief; Davis filed a pro se brief raising ineffective-assistance and other claims.
- Court of Appeals affirmed the conviction, dismissed the ineffective-assistance claim without prejudice (post-conviction relief recommended), and rejected other challenges (Hudgens testimony, closing-argument claims).
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Exclusion of undisclosed witness (Jacobson) | Trial counsel’s failure to list Jacobson was ineffective; exclusion deprived Davis of critical exculpatory testimony linking Babb/Stewart to Colly | Discovery rule required disclosure; late disclosure was willful and prejudiced prosecution; exclusion was proper sanction | Exclusion was within trial court’s discretion; no abuse found and no apparent prejudice shown on record; conviction affirmed |
| Ineffective assistance of counsel for failing to disclose Jacobson | Counsel’s discovery violation denied effective assistance; prejudice shown by exclusion of Jacobson | Record does not establish prejudice; appellate record inadequate to assess claim | Claim dismissed without prejudice; may be raised in a post-conviction relief motion because record on direct appeal is insufficient |
| Alleged perjured/testimony by Detective Hudgens and failure to remedy | Hudgens lied about reasons other detectives were removed; counsel/prosecutor/judge failed to correct perjury, warranting new trial | Hudgens’s testimony inconsistencies were explored at length; no basis to conclude perjury that prejudiced trial | Claims without merit; cross-examination addressed inconsistencies; no new trial required |
| Prosecutorial misconduct / inflammatory closing remarks | Prosecutor used Hudgens’s testimony and made inflammatory statements in closing argument that denied fair trial | No contemporaneous objections; comments not so inflammatory as to require reversal sua sponte | Waived for failure to object; comments not inherently so inflammatory to mandate reversal |
Key Cases Cited
- Lindsey v. State, 939 So.2d 743 (Miss. 2005) (procedure for appellate counsel filing a brief certifying no arguable issues)
- De La Beckwith v. State, 707 So.2d 547 (Miss. 1997) (upholding exclusion of undisclosed defense witness when omission is willful and tactically motivated)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Taylor v. State, 162 So.3d 780 (Miss. 2015) (appellate standard for independent review of record)