IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01230-COA
JOHN PHINIZ EE A/K/A JOHN L. PHINIZ EE JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/10/2016 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BLEW ETT W . THOMAS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 06/19/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. J ohn Phinizee a

ppeals the Lowndes County Circuit Court’s dism issal of his m otion
f or post-conviction relief

(PCR). Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. The f

ollowing f

a cts are taken f

r om Phinizee v. State , 983 So. 2d 322, 324-26 (¶¶3-10) (Miss. Ct. App. 2007):
In A pril 1 999, an o f

f icer of the Lowndes County Narcotics Unit (LCNU) m ade an undercover purchase o f f orty dollars worth of cocaine f rom B ernard’s Pool Hall. No arrest was m ade at the tim e.
In J uly 2 0 01, o f

f icers of t he LCNU received a l etter f rom a concerned citizen stating that a ma n b y t h e nam e of John was selling drugs f rom Bernard’s. Again, in A pril 2002, Of

f icer Larry Swearingen of the LCNU received a letterf

rom a concerned citizen stating that P hinizee was selling coca i n e a nd m arijuana f

rom Bernard’s. Shortly thereaf ter, Of f icer Swearingen talked with Phinizee at Bernard’s but no arrest was m a de at the tim e.
In October of 200 3 , G e orgia W hitm ore’s husband cam e to Of f i cer Swearingen’s of

f i ce and stated that his wif e was r egularly p urchasin g c r a ck c o caine f rom Phinizee at Bernard’s Pool Hall and s o m etim es at one o f t h e Citco stations in Colum

bus, Mississ i p p i

. H e stated f u rther that h is wif

e had been buy i ng f

rom Phinizee f

or a long tim e and was addicted to cocaine.
On Decem

ber 8, 2003, W h itm ore’ s husband c alled O f f icer Swearingen and inf orm ed him t hat W hitm ore planned to m eet Phinizee to buy cocaine the n ext d a y b etween 7:00 a .m
. and 9:00 a.m
. at o ne of two Citco s tations, located either on Highway 45 North or at t he intersection of Military R oad and M artin Luther King Drive. W

h i t m o r e ’ s h usband supplied t he tag num b er o f Phinizee’s vehicle, which h e described a s a black extended-cab Chevrolet truck. W h itm ore’s husband also stated that his wif e would be driving a m a r oon 2000 Prism

. Of f i cer Swearingen then ran t he tag num ber and conf

irm ed that the truck was registered to Phinizee and his wif e. The f ollowing day , Of

f icer Swearingen conducted surveillance of the C i t co s t a t ion at the intersection of Military Road a nd Martin Luther King Drive

. During the hours s u ggested, he observed W hitm ore arrive at the gas st ation, park her ca r , and m ake a call f rom a pay phone located directly behind a barbeque pit near the gas station. A f ter com p leting t he phone call, W hitm ore got back in her c ar and drove around to the f ront of the barbeque pit. A f ew m inutes later, Ph i n i z e e a rrived at the gas s tation in a black Chevrolet truck. Of f icer Swearingen then o bserved Phinizee a n d W h i tm ore exit their respective vehi c l e s a n d m ake an exchange w hich h e believed to be a drug transaction. W h itm ore then lef

t t he gas station and w as p ulled over a shor t distance theref rom at approxim a tely

8:45 a.m . W h itm ore was searched and a Trophy chewing tobacco pouch containing cocaine was f ound in her b rassiere. Upon her arrest, [ W hitm ore] gave a written signed statem ent that s he had purchased cocaine f r om Phinizee f

or a couple of y ears, and that she had [

. . .] just bought cocai n e f r o m h i m that m orning. She also stated that she had purchased cocaine f rom Phinizee at least a hundred tim es at Bernard’s over the past f ew y ears. At approxim ately 1 0:30 a.m ., Of f icer S wearingen a n d Of

f icer Joey Brackin returned t o t h e C i t co station to arrest P hinizee. A f ew m inutes af

ter they arrived, P hinizee pulled i nto the parking lot and w as arrested as he exited his vehicle. Of

f i cer Swearingen testif

ied t hat he l ooked into Phinizee’s truck and

2was able to see nume r o u s Trophy chewing tobacco pouches identical t o the

one taken f

rom W h i tm ore’s bra. He then searched t he i nterior of the truck and f ound cocai n e i n s i de o ne of the tobacco pouches. Phinizee’s vehicle w a s towed and he was taken to the sherif f ’s of f ice f or processing.
Af ter these e vents t ranspired, Of f i cer Swea r i n g e n s ubm itted an af f idavit f or a search warrant of Bernard’s Pool Hall. O f f icer S wearingen s i gned the “Underly ing F acts and Circum stances” sheet which w a s a ttached to his af f idavit subm itted to Justice C ourt J u d g e C hauncey Green. Judge Green issued the requested s e arch warrant a nd Phinizee accom panied Of

f i cer Swe a r i n g e n to his place of business. The ensuing s earch of t he pool h all y ielded m ar i

j u a na and cocaine. Once back at the station, Phinizee adm itted t h a t h e had been selling drugs f rom Bernard’s Pool Hall and gave a signed written statem ent to that ef f ect af ter signing a waiver of rights. ¶3. Following a trial in 2006, Phinizee was convicted of one count of the sale o f cocaine
and two counts of possession of cocaine with intent to dist r i b u t e
. P hinizee w as sentenced

to t hirty y ears in the custody of the Mississippi Departm ent Corrections f or each count with the sentences in counts two and three to run concurrently , and the sentence in count one to run consecutively

with the sentences in counts two and three—f or a total of

sixty y ears. ¶4. Phinizee f

iled a m otion f

o r j udgm ent notwithstanding the v erdict, or in t he alternative,
f or a new trial; but Phinizee’s conviction was af f irm ed on d irect appeal. See Phinizee , 983
So. 2d at 3 31 (¶30). In 2011, the Mississippi Suprem e C ourt granted Phinizee’s application
f or leave t o f

ile his PCR m otion in the trial court f ollowing a c h a n g e of attorney s. In that PCR, P hinizee alleged i nef f e ctive assistance o f counsel because of his trial c ounsel’s f ailure

to raise his lack of intelligence, related brain disorders, and other m i tigating circum stances which he claim s hindered him f rom assisting with his def

ense. T he S uprem e C ourt rem anded
the case to the Lowndes County Circuit Court f o r a n evidentiary hearing t o determ ine the validity of Phinizee’s claim s.

3¶5. In 2013, t he circuit court conducted p art one of the bif u rcated evidentiary hearing to
determ ine whether Phinizee received ef f ective assistance of

counsel. During that hearing,
Dr. Bodsky , f

orensic psy chologist and Phinizee’s expert witness, testif i ed that he was of the opinion t hat Phinizee was not com petent to stand trial or aid his attorney in his def ense during the 2006 trial. ¶6. Part two of the hearing was held in May 2016, a f t er the S t a t e c o n d u c t e d its own

m ental evaluation of Phinizee. Dr. Robert Storer , a f orensic psy c hologist, stated that he
could n ot testif

y with m edical certainty that Phinizee was com petent to stand trial “because

com petency was a f

unctional assessm ent.” However, Dr. Storer stated that he did not detect
any def ect in Phinizee’s understanding of his legal situation in 2006. ¶7. In August 201 6 , t h e c i r c u i t court denied Phinizee’s PCR m otion. Phinizee now appeals.
STANDARD OF REVIEW ¶8. “W hen reviewi n g a t r i a l c ourt’s denial or dism issal of a PCR m o tion, we will only
disturb the trial court’s f

actual f i ndings if they are clearly erroneous; h owever, we r eview the
trial court’s legal c onclusions under a de novo standard of review.” Alexander v. State , 228 So. 3d 338, 340 (¶7) (Miss. Ct. App. 2017).
DISCUSSION ¶9. Phinizee argues that the cir c u i t c ourt’s f inding was “clearly e rroneous” b ecause his
trial counsel f

ailed to ref

er to h is m ental intelligence and f a iled to conduct a reasonable pre4trial investigation t o d i scover his lack of m ental intelligence. As a result, Ph i nizee argues

that his counsel’s perf

orm ance was def

icient. “In order t o succeed on a claim of inef f ective
assistance of counsel, the def e ndant m ust prove that counsel’s perfo r m a nce was def

icient and
that the d ef

icient perf

orm ance prejudiced the def ense.” Carson v. State , 161 S o. 3d 153, 155-
56 (¶3) (Miss. Ct. App. 2014) (citing Strickland v. W a shington , 466 U .S. 668, 687 (1984)). ¶10. “Rule 9.06 of the Unif orm Rules of Circuit and County Court Practice [1] provides the procedure f

o r a circuit c ourt’s determ ination o f whether a c rim i nal def endant i s mentally

com petent to s tand trial.” B rasso v. State , 195 S o. 3d 856, 860 (¶12) (Miss. Ct. App. 2016).
“Rule 9.06 is m eant to ensure that a def endant’s due process rights are not violated.” Id

. ¶11. At the August 2013 h e a r i n g , G a r y Goodwin, P hinizee’s counsel at trial in 2006,
testif i ed that he m et w ith Phinizee on several occasions to discuss the f acts of his case. He
stated that h e f

elt that Phinizee adequ a tely com m u nicated with him , and that Phinizee understood the charges against him and the c onsequences he f a ced if convicted. Goodwin
stated that Phinizee com m unicated that he w a s r e c eiving social security b enef its, and that
Phinizee disclosed he s u f f ered a brain a neury sm s e v e ral y ears prior to his arrest, which
resulted in brain s u r g e r y
. However, Goodwin m aintained that he saw no evidence that Phinizee lacked capacity to assist in his own def ense.

1 W e n o t e t h at t h e U n if

o rm R u les o f C ircu i t a n d C o u n ty C o u rt relatin g to crim i n al p ractice h a v e b een su p p lan ted b y t h e M ississip p i R u les o f C rim i n a l P ro ced u r e , e ffe ctiv e Ju ly 1 , 2 0 1 7

. B u t, b ecau se th e f o rm er ru les w ere still in e f f ect d u rin g P h in izee’s trial, R u le 9 .0 6 ap p lies to P h in i zee’s case. T h e sam e ap p lies to an y o t h e r o f th e f o r m er ru les cited in th is o p in i o n
. 5¶12. Phinizee asserts that his trial counsel’s assistance was def icient because Goodwin did

not put on any witness testim ony or present e vidence to support the assertion t hat he lacked
the m ental capacity to stand trial. Furtherm ore, Phinizee asserts t hat Goo d w i n did not
i n v e s tigate a ny of these claim s o r order a m ental evaluation once h e learned o f Phinizee’s
brain surgery
. Phinizee also challenges Goodwin’s decision to not subm it m itigating f actors at his sentencing hearing. ¶13. Goodwin testif

i ed t h a t he spoke with Phinizee’s wif e, Mariah, f

or t he f irst tim e at Phinizee’s trial. G oodwin s tated that she dem a nded an insanity o r in c a p a c i t y def ense the

m orning of trial. However, Goodwin testif i ed that he did not think t hat Phinizee was insane

or lacked the capacity to understand the nature o f t h e c h a rges against him

. Furtherm ore, G o o d win testif i ed t hat h e did not think Mariah had h er husband’s best interest a t h e a r t , because she waited until the t r i a l h ad already c om m enced b ef ore speaking with him about her husband’s possible lack of capacity

. ¶14. This Court h as h eld that “trial counsel is af f o rded ‘ broad discretion’ in such m atters of trial strategy , and we will not second-guess counsel’s decisions tha t f a i r ly m ay be
characterized as strategic.” Shinn v. State , 174 So. 3d 961, 966 (¶12) ( Miss. Ct. App. 2015). Moreover, “we look at the totality of circum s tances t o determ ine whether counsel’s ef f orts

were both def

icient a nd p rejudicial.” Morton v. S tate , N o. 2016-KA-00804-COA, 2017 W L 5614958, at *6 (¶27) (Miss. Ct. App. 2017) ( quoting W illiams v. State , 73 So. 3d 1125, 1129 (¶1 2 ) ( M i ss. 2011)). Our suprem e court has also held that “ there is no c o nstitutional right

6to errorless counsel.” Conway v. State , 48 So. 3d 588, 593 (¶7) (Miss. Ct. App. 2010); see

also Stack v. State , 860 So. 2d 687, 696 (¶20) (Miss. 2003). W e are of t he opinion that the
record does not convey that Phinizee’s t rial c o unsel had any reason to b elieve that Phinizee
was unable to stand trial and assist with his def ense. ¶15. During the oral argum ent, Phinizee ma i n t a i n e d t h a t in h is opinion, he was never af f orded a com

petency hearing. He asserts that the b if urcated hearings did not p roperly serve

as a c om p etency hearing. W e disagree. Phinizee was exam i ned by two experts to determ ine
whether or n ot Phinizee was com petent to stand trial. This Court has held that “the purpose of an evidentiary hearing is f o r the court t o receive evidence in o rder to ma k e f i n d i n gs of
f act.” W alton v. State , 233 So. 3d 909, 912 (¶14) (Miss. Ct. App. 2017). A s a result, we f ind
that the bif

urcated hearings properly served to determ ine whether Phinizee was com petent to stand trial. ¶16. Further, P hinizee m aintains that the trial judge’s f indings c o n t r a d i c t e d t h e expert opinions provided by both experts. As a result, Phinizee alleges that the circuit court m ade

a biased and un s u b s tantiated determ ination that he w as com petent t o assist his attorney during his trial. W e disagree. ¶17. Dr. Brodsky exam ined Phiniz e e i n May 2 013. Dr. Brodsky testif ied t hat Phinizee
could not r ead at all a nd did not dem onstrate ef f e c tive com

prehension. The IQ tests ref lected

t h a t P h i nizee scored in the range of som eone with m ental retardation. As a result , D r
. Brodsky concluded that based upon Phinizee’s m ajor im pairm ents and intellectual

7disabilities, he was unable to understand and assist in his def ense during his trial. ¶18. H o wever, Dr. Storer testif ied that while Phinizee had intellectua l d i s a b i l i t i e s a n d
certain def

iciencies, he was u nable to g ive an opinion with reasonable c ertainty that Phinizee

was unable to understand a nd assist in his def ense. H o wever, Dr. Sto r e r s t a t e d that it was his opinion to a reasonable degree of p sy chological certainty that he was not suf f ering f rom

a me n tal disease or def

ect that could have interf ered w ith Phinizee’s ability to k now the
dif f erence betwee n r i ght and w rong in relation to the crim es f or w h ich Phinizee was convicted. Dr. Storer voiced that his testim ony w as based on the f act that n o one perf

orm ed

an examination of P hinizee i n 2006 to determ ine whether he w as com petent t o s tand trial.
Dr. Storer stated t h a t “com petency to stand trial h as to be a ssessed a t a specif ic tim e i n a specif ic situation.” 2 ¶19. This Court addr e s s e d s i mi l a r i s s u e s r e g a r d i n g com petency a nd a t rial judge’s
observations in B r asso , 195 So. 3d at 867 ( ¶33). T he dissent in B rasso noted “that the U.S. Suprem e Court has stated that m entally retarded p ersons f requently know t h e d if

f erence between right and wrong and are com petent to stand trial.” I

d

. at 8 66 (¶40) (W il s o n , J.,

2 D r. S to r er testif

i ed th at t h e M ississip p i S u p rem e C o u rt h ad alread y d ecid e d th at o n e co u ld n o t d eterm in e w h eth e r so m eo n e w as co m p eten t retro activ ely

. H o w ev er, th e S u p r em e C o u rt h as recen t ly h eld th at “a trial co u rt’s co m p eten cy ev alu atio n o rd er d o e s n o t in an d o f itself co n clu siv e ly (o r n ecessarily ) estab lish , f o r p u rp o ses o f R u le 9 .0 6 ’s ma n d ates, o r ap p ellate-rev iew p u r

p o ses, th at th e trial co u r t h ad r ea s o n a b l e g ro u n d s t o b eliev e th e d ef en d a n t w as in co m

p e ten t to stan d trial.” P i tch fo rd v. S t a t e , 2 4 0 S o
. 3 d 1 0 6 1 , 1 0 6 9 (¶4 2 ) (M iss. 2 0 1 7 ). “S u ch a d e term in atio n m u s t b e m a d e b ased o n t h e f acts an d circu m stan ces atten d in g each p articu lar case.” I d

. T h eref o r e, retro activ e co m

p eten cy h earin g s av o id d u e p ro cess rig h ts. 8dissenting); see Atkins v. Virginia, 536 U.S. 304, 318 (2002). 3 W e agree.

¶20. Phinizee “has the burden of showing h e is entitled to relief by a preponderance of the
evidence.” K

idd v
. State , 221 So. 3d 1041, 1043 (¶8) (Miss. Ct. App. 2016). However, we

are of t he opinion t hat Phinizee did not m e et that burden. The t rial court heard the testim ony of both experts af

ter their thorough exam inations of Phinizee, b ut the t rial c o u r t was not persuaded by the testim ony of Phinizee’s expert w itness. As a result, the trial court rejected
Dr. Brodsky ’s tes t i m ony regarding Phinizee’s com p etency and f

ound t hat Phinizee was

com petent to stand trial in 2006. ¶21. The trial court also t ook into account that Phinizee was able to m anage Bernard’s Pool
Hall f or a num b er of y ears. This Court m ust note that Phinizee f

iled his P CR m otion alleging
i n e f f ective a ssistance counsel. P hinizee’s trial counsel t estif ied that Phinizee cooperate d
with him and h e saw no signs of incom petency

. The trial court heard the testim ony presented
and m ade a ruling. “[ D]ef erence is given to t he trial c o urt a s t h e s o le authority f or determ ining credibility

of the witnesses.” W

alton , 233 So. 3d at 911 (¶9). ¶22. As a result, the t rial court f ound that there was n o e v i d e n c e p r e s ented to support Phinizee’s assertion that h e received inef f ective assistance of counsel. Accordingly , we f ind

no error. ¶23. AFFIRMED.

3 In A tkin s , th e U .S

. S u p rem e C o u rt h eld “th at [ cap ital] p u n ish m en t [ w a] s ex cessiv e an d th a t th e C o n stitu t io n p laces a s u b stan tiv e restrictio n o n th e S tate’s p o w er to tak e th e lif e o f a m en tally

retard ed o f

f en d er.” 5 3 6 U .S . at 3 2 1 (in tern al q u o tatio n m ark s o m itted ).

9LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,

GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J. , C ONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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