IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-KA-00758-SCT TOMMIEL Q. CLAIBORNE a/k/a TOMMIE LEE CLAIBORNE, JR. a/k/a TOMMIE L. CLAIBORNE

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/06/2014 TRIAL JUDGE: HON. LAMAR PICKARD TRIAL COURT ATTORNEYS: M.A. BASS, JR. NICKITA BANKS ALEXANDER MARTIN COURT FROM W HICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: ALEXANDER C. MARTIN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 08/20/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WALLER, C.J., CHANDLER AND KING, JJ. CHANDLER, JUSTICE, FOR THE COURT: ¶1. Tom m ie Claib o r n e a p p e a l s f r o m h i s c onviction of m urder a nd s entence of

lif e. According to three ey ewitnesses, Claiborne chased his wif e a r ound a car, grabbed her, and shot her three tim es the day bef ore their scheduled d ivorce h earing. Claiborne’s appellate counsel f iled a brief in c om

pliance with Lindsey v

. S t a t e , 9 39 So. 2d 7 43 (Miss. 2005),certif

y ing to this C ourt that the record presented no a rguable issues f or appeal. Claiborne has f iled a pro se brief asserting i nef f ective ass i s t a n c e o f counsel, that the State violated discovery rules, that the ey ewitnesses at trial contradicted their earlier statem ents to police, and that he was denied his right to a speedy trial. ¶2. Af ter a t h o r o u g h r e v i e w o f C l a iborne’s pro se brief and the record, we f ind that Claiborne’s appeal presents no arguable i ssues, and that no sup p l e me n tal brief ing is
necessary . Claiborne’s a r g u me n t s that the S tate com m itted discovery v iolations, that the
ey ewitnesses c hanged their stories, and that he was denied a speedy trial clearly a re without

m erit. Claiborne’s ot h e r issues of inef f ective assistance of counsel are dism issed without prejudice to his ability to raise them in post-conviction proceedings. W e af f irm Claiborne’s conviction and sentence. FACTS ¶3. A c c ording to three ey ewitnesses, on the af ternoon of August 2 2 , 2 0 1 1 , T o mmi e l Claiborne shot and killed his wif e Luna Claiborne in the f

ront y ard of Deborah a nd C ornelius Thornton in Port Gibson. Luna and Tom m iel were separated and Luna was living with the Thorntons at the tim e of the m urder. E a r l i e r i n the d ay , Tom m iel cam e by in a red Toy ota driven by Roy Herrington and stopped a nd talked to Luna. Deborah testif ied that Tom m iel

seem ed to be tr

y ing to reconcile with Luna b ut that L una did not want to talk with him

. Roy and Tom m iel lef

t, and Deborah went into the house. ¶4. Lat e r , s h o r t l y a f

t e r noon, f

rom inside the house, Deborah heard “som ething that sounded like a f

irecracker

. . . pow, pow,” and heard Luna scream i ng f o r Deborah to call the

2police. D eborah called the police, then ope n e d the door and saw Tom m iel chasing Luna

around a car. Tom m iel grabbed Luna “by the neck” and shot her “until she hit the ground.” Deborah testif

ied that “once [ Luna] hit the ground, [ Tom m iel] s tood up over her and shot her . . . a couple of

m o r e tim es . . . ,” then walked away

. ¶5. Cornelius Thornton testif ied that he had known Tom m iel since childhood. O n August 22, he overheard the m orning argum e nt f rom inside the house whe r e h e was busy on the

com puter. He was out i n the y ard sm oking when Tom m iel walked by af ter noon. Luna was in the y ard, si t t i n g u n der a tree with a m a n nam ed John Paul Thornton who was s tay ing in

a trailer hom e on the Thornton property

. Cornelius testif ied that som eone s aid som ething that Cornelius did not hear, then Tom m iel crossed over the street and cam e to where Luna and John Paul were sitting, at w hich t im e L u n a “jum ped up and ran.” Cornelius saw Tom m iel chase L una around the c ar while she called out f or the police t o be called. He could see that Tom m iel had a “little pistol i n his hand.” He “grabbed her around the head, put her in a head lock” a nd shot h er in the head. T hen Tom m iel let Luna f a l l t o t he ground and “stood over her” and shot until the pistol was em p ty , then took of

f down the street. ¶6. T h e t h ird e y ewitness, W illie Roy Parker, testif ied that he was sitting on his po r c h when he heard two gunshots; he l ooked around and saw Tom m iel holding Luna. Tom m iel then f i red two m ore shots, a t w h ich point W illie jum ped of f the porch and ran toward Tom m iel say ing, “don’t d o that m an” several tim es. As he got closer, W illie s aid that he saw Tom m iel p ut the pistol to Luna’s f orehead and shoot her. W illie said she f ell on her back and

3that Tom m iel stood over her and shot at h e r l e a st two m ore tim e s. Claiborne was

apprehended a f

ew m iles away

later that af

ternoon. The gun was never recovered. ¶7. Claiborne was indicted on Decem ber 8, 2011. H e w as a rraigned o n January 4, 2012, and, according t o h i s a rraignm ent order, trial was s et f or January 1 0, 2012. Also on January 4, 20 1 2 , Claiborne’s attorney f iled a request f

or Claiborne to receive a psy chological

exam ination. The sam e day , the court entered an order f o r ps y c h o l o g ical exam ination and appointed Dr. C ri s s L o t t t o conduct the exam ination. Dr. Lott attem pted t o evaluate Claiborne on January 5, 2 012. However, Claiborne was uncooperative, and half w ay through the evaluation ref

u s ed t o continue. Dr. Lott’s report stated that “[ a]s Mr. Claiborne ref used
to c om plete the evaluation, h e will need to be sent to the F o rensic Services at Mississippi State Hospital f

or f urther e valuation. ” O n J a n u a ry 24, 2012, Claiborne f iled a m otion requesting “m ental evaluation and treatm ent” to take place at the M ississippi State Hospital at W hitf ield. The m otion was granted by an order issued on January 2 5, 2012. ¶8. Af ter a delay due to backlog at the State Hospital at W h itf ield, o n January 24, 2013, the trial court issued a second o r der f or C laiborne t o exam ined by Dr. Lott. Claiborne again ref used to cooperate w ith Dr. Lott. The court issued another order f or m ental evaluation and
treat m ent at W hitf

ield o n J anuary 26, 2013. On February 11, 2014, Claiborne received an inpatient f

orensic m ental evaluation at W hitf ield. The report, provided to the trial court on February 13, 2014, p r o v i d e d that, in the doctors’ u nanim ous opinions, Claiborne was

m entally sane at the tim e of the c rim e and was c om petent to stand trial. On March 17, 2014, Claiborne f

iled a m otion to dism iss on the ground that his right to a speedy trial was violated.

4This m otion was denied. Def ense counsel renewed the m otio n a t the start o f trial, and the court denied the m otion again, stating: the basis f or the C ourt overruling the m otion f or speedy trial was the delay was caused by the m otion f

iled by the def

endant f or a m e d i cal

– psy chological m ental evaluation. The state – the Court was i nf orm ed that the state has called

– the state’s attorney s called the s t ate hospital on num erous, num erous occasions try ing to get them to do this thi n g a n d just were told there was a backlog and they would have to get t o it as quick a s they could. Now, there’s nothing t o p revent the def endant f rom getting a m ental evaluation on his own, and if that h a d been the case, then the Court m ay look at it dif f erently

. But the prosecution h ad nothing to do with the d elay

. T hat was caused by the def endant’s r equest. In an intention to com ply with the def

endant’s request, the 270 day s had expired. The prosecution also noted f or the record tha t D r . Lott had twice a ttem pted t o evaluate Claiborne and that Claiborne had been uncooperative. ¶9. The State also presented testim ony f r om C l a i b o r n e C o u nty Chancery Clerk Gloria Dotson. Dotson testif

ied that a d ivorce com

plaint was f

i led February 22, 2011, sty led “Luna Hillary Claibo r

n e v . T o m m i e L

. C l a i b o r

ne.” T he d ivorce com

p laint r epresented that Tom m iel and Luna were m arried on N ovem ber 4, 2010, in Tallulah, Louisiana and separated f ive day s later on Novem

b e r 9 , 2010, in Claiborne County

. Dotson authenticated a copy of a Notice of Hearing f

or August 23, 2011, w hich was adm itted into e vidence. The jury returned a guilty verdict on May 6, 2014, and on the sam e day Claiborne was sentenced to lif e. DISCUSSION ¶10. In Lindsey , this Court adopted a procedure “to govern cases where appellate counsel represents an indigent crim inal d ef endant and d oes not believe his o r her c l i e n t ’ s c a s e presents a ny arguable issues on appeal.” Lindsey , 939 So. 2d at 748. First, “ counsel m ust f ile

5and serve a b r i e f i n c o m p liance with Mississippi Rule of Appellate Procedure 28(a)(1)- (4),(7).” Id . In the brief

, counsel m

ust certif y t hat there are n o a rguable issues s upporting the client’s a ppeal, and he or she has reached this conclusion af ter scouring the r e c o r d thoroughly , specif

i cally exam ining: (a) the reason f or the arrest and the circum stances surrounding arrest; ( b) any possible violations of the client’s right to counsel; © the e n t ire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial m isconduct; (f ) all jury instructions; ( g) all e xhibits, whether adm itted into evidence or not; and (h) p ossible m isapplication of the law in sentencing. Id

. Next, counsel m

ust f orward a copy of the brief to t h e c l i e n t , i n f orm ing the c lient that counsel was unable to discover any arguable issues in the record, and advise the client that he or she has a right to f ile a pro se brief

. Id

. If the d ef

endant’s pro se brief raises any arguable issue or the a

ppellate court discovers any a rguable issue in its review of the record, then “the court m

ust, if circum stances warrant, require appellate c ounsel to subm it supplem ental b rief

ing on the issue, regardless of the probability of the def endant’s success on appeal.” Id

. Af

ter the com

p letion of the brief i ng, “the appellate court m ust consider the case on its m erits and render a decision.” Id

. ¶11. Here, counsel h a s subm itted a brief in com p liance with Lindsey

. Claiborne has f iled

a pro se b rief argui n g t hat he received inef f ective assistance of counsel, that the State

com m itted discovery violations, that the ey ewitnesses gave inconsistent statem e n ts, and that he was denied his right to a speedy trial. Af ter a t h o r o u g h r e view, we f ind that the record shows no arguable issues f o r appeal, and that Claiborne’s pro se brief raise s no arguable issues. Supplem ental brief ing is n ot warranted. See B yrd v . State , 158 So. 3d 1146, 1150

6(Miss. 2015); H a v a r d v. State , 94 So. 3 d 229, 235 (Miss. 2012). W e brief ly address the issues raised by

Claiborne’s pro se brief

. I. Brady and Discovery Violations ¶12. Claiborne argues that the State f ailed to disclose the results o f a gunshot-residue test, and that the State violated the discovery rule by f ailing to give notice that it intended to put

o n t e s t i mony by the chancery clerk that Claiborne and the victim had a divorce hearing scheduled. No gunshot-residue evidence was presented a t t rial by either side. Claiborne attaches a report (not m ade part of the appellate record) to h is pro se b rief indicating that Claiborne’s hands were “swabbed” f or gunshot residue, and that Claiborne f iled pro se

mo t i o ns requesting the results of any gunshot-residue testing. At trial, def ense coun s e l explicitly stated to the bench at the end of trial that the def e nse had elected not to present any gunshot-residue evidence “as a m atter of trial strategy .” 1 ¶13. In determ ining whether a Brady violation has occurred, this Court a pplies the f

ourpart Brady t est adopted i n King v. State , 656 So. 2d 1168, 1 174 (Miss. 1995), under which a def endant m ust show a) that the State possessed evidence f avorable to the def

endant ( including im peachm ent evidence); b) that the def

endant does not possess the e vidence n or c ould he obtain it him self with any reasonable diligence; c) that the prosecution suppressed the f avorable evidence; and

1 T h is ex ch an g e aro se w h en C l a i b o r n e ask ed to ad d ress th e j u ry b e f o r e it lef t f o r d elib eratio n . C laib o rn e i n ten d ed t o ad d ress th e j u ry o n th e i ssu e o f g u n sh o t resid u e. Wh ile th e j u d g e w as w i llin g to p erm it C laib o rn e t o s p eak , h e w o u l d n o t p e r mit d iscu ssio n o f ev id e n c e th at w as n o t a d m itted at trial. C laib o rn e u ltim ately ch o se n o t to ad d r ess th e j u ry . 7d) tha t h a d the evidence been disclosed to the def e nse, a r easonable probability e xists that the outcom e of the proceedings would have been dif f e rent. Id

. at 1174. Carr v

. State , 873 So. 2d 991 (Miss. 2004); see B rady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963). Here, i t is not apparent f rom the record that the State possessed and suppressed evidenc e f avorable to the def

ense. Moreover, d ef

ense counsel expressly stated on the record that the decision not to s ubm it gunshot-residue evidence was

m ade consciously pursua n t t o t r i al strategy

. Claiborne has f ailed to dem onstrate a Brady violation. ¶14. Claiborne also argues that the State f ailed t o d i sclose its intent to call the chancery clerk to testif

y that he had a divorce hearing scheduled f or the day af

ter the m urder. At trial, def ense counsel did not object to the clerk’s testim ony o n the g round of unf air surprise, and the record does not indi c a t e t h a t the witness was, in f a c t, unexpected. Rather, the def ense objected to the clerk’s testim ony as irrelevant. The court overruled the objection. ¶15. W e r eview a tr i a l c o u r t ’ s d e c i s i ons on discovery v iolations and whether or not to adm it evidence f

or abuse of discretion. Conley v. State , 790 So. 2d 773, 782 (Miss. 2001). A f a ilure to request a continuance or mi s t r ial when f aced with an undisclosed witness or evidence r esults in waiver of a violation of the r ule governing adm ission of untim ely or nondisclosed evidence. See Unif orm Circuit and County Court R ule 9.04(I)(1-2); Magee v. State , 124 So. 3d 64, 7 0 (Miss. 2 013). Here, the trial court did not abuse its discretion in

8overruling Claiborne’s objec t i o n , and i f the w itness was indeed unexpected, Claiborne

waived his right to object. 2
II. Ineffective Assistance of Counsel ¶16. Claiborne argues that he was d enied ef f ective assista nce of counsel. He asserts that
t r i a l counsel had a conf

lict o f interest because trial counsel w ould not f ile certain m otions Claiborne wanted him to f ile. He argues that trial counsel issued a subpoena to a crim e lab expert ordering him to appear in H i nds County , not Claiborne County , that a corrected

s u b p o e n a was not served until the day bef ore trial, and that the expert did not s how up f o r trial. He does not identif

y the expert or to what the expert would have testif i ed. ¶17. I s s u e s o f i n e f

f e ctive assistance of c ounsel are m ost appropriately raised in po s t

conviction proceedings. B yrd v. State , 158 So. 3d 1 146, 1150 (Miss. 2015); Keithley v. State , 111 So. 3d 1202, 1206 ( M iss. 2 0 13) (quoting Archer v. State , 986 So. 2 d 951, 955 (Miss. 2008)). “This is because during direct appeals the C ourt is l im ited t o the trial court record in i ts review of the claim , and there m ay be instances in which i nsuf f icient evidence exists within the record to a ddress the claim adequa t e l y . ” Archer , 986 So. 2d at 955. Claiborne points to nothing in the record to support a f i nding that def

ense c ounsel f

ailed to subpoena

a w itness whose testim ony would be f avorable and that, if the om ission had not occurred, the

2 Claiborne also argues that the e y ewitnesses “recanted” their testim o ny by giving a dif f erent version of events at trial than they d id i n p r ior statem ents to the police. A review of the transcript indicates that witnesses m ade s u bstantively the sam e observations they m ade to the police, sim

p ly in dif f erent wor d s a n d w i t h g reater elaboration under exam i nation. It “.

. . is w ithin the province of the jury to decide which w itnesses are c redible and t o resolve the conf licts in the t estim ony that they hear.” Jones v. State , 920 So. 2d 465, 472-73 (Miss. 2006). This issue is without m erit.

9outcom e at trial likely would have been dif f erent. See Strickland v. Washington , 466 U.S. 6 6 8 , 6 87, 104 S. Ct. 2052, 8 0 L

. Ed. 2d 674 (1984). Because these issues of inef f e c t i v e assistance of counsel are not based on f acts f ully apparent f

r om the record, we dism iss them without prejudice to Claiborne’ s a b i lity to r aise them i n appropriate post-conviction proceedings. III. Speedy Trial ¶18. Claiborne a rgues that he was denied the right to a speedy trial. A delay of m ore than 270 day s i s presum

ptively p rejudicial, triggering a consideration of f o ur f actors to determ ine whether the constitutional right t o a speedy trial has been v iolated: (1) the length of the delay , (2) the reason f

or the delay , (3) whether the def e n dant asserted his ri ght, and (4) prejudice
to the def endant. See Barker v. Wing o , 4 0 7 U

. S

. 5 14, 92 S. Ct. 2182, 3 3 L. Ed. 2d 101 (1972). Here, the record ref l ects that the trial, initially schedul e d f o r a f e w day s af

ter arraignm ent, was delay e d due to Claiborne’s request f or a m ental evaluation and his repeated f ailure t o c o o p e r a t e with the doctor who was i m m ediately a vailable to perf orm the evaluation. Claiborne’s trial took place with i n two m onths a f ter he com

pleted a f orensic

m ental eval u a t i o n . T h e l ength of delay did not af f ect the ability of three ey ewitnesses to
t e s t i f y a t trial. A balancing o f the Barker f actors on the f

acts of this case l eads to t h e conclusion that Claiborne was not denied the right to a speedy trial. CONCLUSION

1 0¶19. W e f ind that the State m et the requirem ents f or f iling a L i n d

s e y b r i ef , and that an order f or supplem ental brief

ing theref

ore is not necessary . T he issues raised pr o s e b y Claiborne are without m erit, and his conviction and sentence are af f irm e d. ¶20. CONVICTION OF FIRST-DEGREE MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED

. WALLER, C.J., DICKINSON AN D R A N D O L P H , P . J J . , L A M A R , KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.

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