IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00816-COA JUANTEAZ

MCDONALD A/K/A JUANTEAZ D. MCDONALD A/K/A JUANTEZ MCDONALD A/K/A JUANTEZ

D. MCDONALD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/02/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHOKW E ANTAR LUMUMBA ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/19/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. BARNES, J., FOR THE COURT: ¶1. Juanteaz McDonald was indicted o n two counts of a rm ed robbery

. Although he was repeatedly inf

orm ed of his trial date, McDonald did not appear on the m orning of trial; so the Madison County Circuit Court conducted the jury trial i n absentia. See Miss. Code Ann. § 99-17-9 (Rev. 2015). McDonald was f ound guilty

on both counts and received c oncurrent f if ty -y ear sentences in the custody of the Mississippi Departm ent of Corrections (MDOC), with ten y ears s uspended and f ive y ears of supervised probation. Appealing his convictions, McDonald c laim s that t he circuit court e rred in proceeding to trial i n his absence and that hewas subjected to i nef f e ctive a ssistance of counsel. W e af f irm the j udg me n t , f

i n ding the circuit cour t did not abuse i ts discretion in proceeding w ith the trial in absentia, and we dism iss without prejudice McDonald’s claim s of i nef f ective assistance of

counsel. FACTS AND PROCEDURAL HISTORY ¶2. In August 2014, McDonald was indicted, along w i t h t h r e e a c c o m p lices, f or two
counts of arm ed robbery

. His case was set f or trial o n D ecem

ber 1, 2014, and McDonald was released on bond. On Novem ber 14, 2014, M cDonald appeared bef ore the circuit court and inf orm ed the court that he wished to proceed to trial. 1 A t a pretrial conf erence o n Novem

ber 17, 2014, the circu i t judge directed McDonald t o “stay i n touch with [ his] attorney and be prepared t o go to trial on Decem ber the 1st or at som e point in tim e later this w e e k .” McDonald appeared o n Decem ber 1, but the trial w as d elay ed, and he was told to c om e back the f ollowing m o r

ning at 9 a.m

. ¶3. On De c e mb e r 2 , h owever, McDonald f ailed t o appear in c ircuit court. The judge learned that the Jackson Police Departm e n t h a d issued two additional warrants f or M cDonald

a week earlier and that McDonald was under f ederal investigation. De f e n s e c o u n sel had contacted McDonald’s mo t h e r , who told her that when McDonald lef t the house that

m orning, h e said he was n ot g o ing to court. The c ircuit judge c oncluded that McDonald had “willf ully , v oluntarily and deliberately absen t e d him self f rom the trial” a n d, theref ore, “waived his r i g h t t o be present.” Def ense counsel objected and m o ved f o r a continuance, which the court denied, and t he trial proceeded i n absentia. T he j ury f ound McDonald guilty

1 M cD o n ald h ad s ig n ed a g u ilty -p lea p etit i o n , b u t at t h i s h earin g , h e w ith d rew th e p etitio n . 2on both counts and, on February 2, 2015, t he c ourt sentenced h im to f if ty y ears f or each count in the custody of t he M DOC, w ith ten y ears s uspended, f ive y e a rs of supervised probation, and the sentences to run concurrently

. ¶4. McDonald f

i led a m otion f

or a judgm ent notwithstanding the verdict or a new trial, which asserted several c laim s o f error, including the trial court’s decision to conduct the trial in McDonald’s absence. The c ourt held a hearing on April 27, 2 0 1 5 , a n d s u bsequently denied the m otion. McDonald now appeals. DISCUSSION I. Whether t he circuit court erred in proceeding w i th the jury trial in McDonald’s absence. ¶5. McDonald argues that because he h ad dem onstrated a desire to participate in all stages of the trial process, the trial court erred in assum ing his absence on the day o f trial “evinced his w illf ul and wanton disregard f or t he tr i al process.” He f u rther contends he was “prejudiced by

the [ circuit] court’s decision to proceed to trial in his absence.” ¶6. A circuit c ourt’s decision to try a def endant in absentia is reviewed under an abuse-of

discretion standard. H

aynes v. State , 208 So. 3d 4, 6 (¶10) (Miss. Ct. App. 2016). Section 99-17-9 provides:
In crim inal cases the presence of the prison e r ma y b e w aived (a) if the def endant i s in c ustody a n d consenting t hereto, or (b) is on recognizance or bail , h a s been arrested a nd escaped, or has been notif ied i n writing by the proper of f icer of the pendency of the indictm e nt against him , a n d r esisted or f led, or ref used to be taken, or is in any way in d ef ault f o r nonappearance, the trial m ay progress at the d i scretion of t he court, and judgm e nt m ade f inal and sentence awarded as though such def endant were personally present in court. If a def e ndant takes “willf

ul, voluntary , and deliberate actions t o avoid trial,” he “ has waived

3the right to be present at trial and m ay be tried in absentia.” Haynes , 208 So. 3d at 6 (¶11) (quoting W

ales v. State , 73 So. 3d 1113, 1119-20 ( ¶16) (Miss. 2011)). “This waiver, though, is balanced against a def

endant’s c onstitutional right to be p resent a t trial.” Id

. (citing U.S. Const. am end. VI; Miss. Const. art 3, § 26). ¶7. There is no dispute that M cDonald pa r t i c i p a t e d i n t h e pretrial p roceedings. He attended several hearings and m e etings with his trial a ttorney , and even appeared in court on Decem ber 1. However, a lthough McDonald w as repeatedly i nf orm ed as to his court date and told to appear f

or trial on Decem

ber 2, he f

ailed to do so. Moreover, McDonald’s m other told his d ef

ense attorney that when McDonald l ef t t he h ouse that m orning, he said he was not
g o i n g t o court, evincing a willf ul decision to absent him self f rom the proceedings. Se e W ales , 73 So. 3d at 1 1 20 ( ¶20) (f inding no ab u s e o f discretion in a circuit court’s determ ination that the def endant h ad “voluntarily absented him self f rom the trial,” when the record showed that he “knew the trial date, did not a ppear, and c ould not be located”). Accordingly , as the record clearly ref lects that McDona l d w as aware of the trial date on D e c e mb er 2 and deliberately f ailed to appear, we f

i nd the circuit court did not a b u s e i t s discretion in f

inding McDona l d “ w i l l fu l l y , v o l u n t a r i l y a n d d e l i b e r a t ely absented him self f rom the trial” and proceeding to trial in his absence. ¶8. W e also f

ind no m e rit t o McDonald’s cla i m h e w a s prejudiced b ecause he was not present to argue the credibility o f the w itnesses and their identif i cation of him as one of the perpetrators. McDonald’s deliberate absence f rom his trial o perated as a waiver o f t hat right. See W ales , 7 3 So. 3d at 1120 (¶20) (A def endant’s “deliberate absence f rom trial operated

4as a waiver” of his right to testif y in his own def

ense.). F urther, a review of the record shows that McDonald received a f air trial and suf

f ered no prejudice f

r om his willf ul absence.
II. Whether McDonald w as subjected to i neffective assistance of trial counsel. 2 ¶9. McDonald argues h i s trial counsel pro v i d e d i n e f f e c t i v e a s s istance by f

ailing “to review all of the evidence to b e presented at tria l w ith the def endant” and “to call into question the integrity of the trial process[ .]” Additionally , McDonald m a k es v a g u e a s s e r t i ons regarding counsel’s f

ailure to inquire of potential jurors as to any bias they m ay h ave had as

a r e s ult o f his absence and “ to utilize the power of process of the court to com pel the production of

evidence” and witnesses. ¶10. Generally , claim s of inef f ective as s i s t a

n c e of counsel “ are m ore appropriately brought during post-conviction proceedings.” Archer v. State , 986 So. 2d 9 51, 955 ( ¶ 1 5 ) ( M i s s. 2008). Becau s e a n appellate court’s review on d irect appeal i s l im ited to the trial court’s

r e c o r d , “ t here m ay be instances in which insuf f icient evidence exists w ithin the record to address the cl a i m [ o f i nef f ective assistance of counsel] a d equately .” Id

. (citing W ilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003)). “In such a case, the appropriate procedure is to deny relief

, preserving the def

endant’s right to a r gue t h e i ssue through a petition f or post-conviction relief

.” Read v. State, 430 So. 2d 832, 837 (Miss. 1983). [ An appellate c]ourt w ill r ule on the m erits on t he rare occasions where (1) the record af f irm atively shows inef

f ectiveness of constitutional dim ensions, o r (2) the parties stipulate that the record is adequate to allow the a ppellate c o urt to m ake the f

indin g without consideration of the f indings of f

act of t he trial

2 M cD o n ald is rep resen ted b y n ew co u n sel o n ap p eal. A n o rd e r su b stitu tin g co u n sel w a s en tered o n D ecem

b er 1 8 , 2 0 1 5

. 5judge.

W ilcher, 863 So. 2d at 825 (¶171) (citation om itted). ¶11. To support his claim s, M cDonald subm i tted an a f f i d a v i t f r o m his m other, Angel McDonald, on appeal, w hich sum m arily states that his attorney “f ailed t o review all of the evidence in the case” with McDonald, “f ailed t o subpoena any witnesses i n his f avor,” and told McDonald t hat “she could n ot assure t hat he would get a f air trial.” S ince t his af

f idavit is outside the circuit court’s record, we m ay n ot consider it on appeal. Regarding his claim that counsel f

ailed to review evidence, we c a n only assum e this c laim ref ers to the exchange

at the beginning of trial in which t rial counsel argued to the c o urt that McDonald had not had

an opportunity to review newly received evidence. 3 Counsel acknowledged, however, that McDonald had b een inf orm e d a f

ew day s prior about the new evidence and had an opportunity

to com e to her of

f ice to review it but had f

ailed to do so. ¶12. W e f

i nd McDonald’s a llegations of inef f ective a ssistance “are based on f acts not f ully
app a r e n t f

r om the record” and cannot be addressed on d irect appeal. A s n either party has stipulated as to the adequacy of the record, and the record m akes no af f irm ative showing of inef f ective a ssistance of counsel, w e dism iss McDonald’s inef f ective-assistance-of

-counsel claim without prejudice, p reser v i n g his right to request perm ission f r om the Mississippi Suprem e Court to f

ile a p etition f

or post-conviction relief

. See Miss. Code Ann. § 99-39-7 (Rev. 2015). ¶13. W e af

f i r m M c D o n a l d ’ s convictions of arm ed robbery and concurrent sentences of

3 T h e S t ate su b m itted D V D s co n tain in g d isco v erab le in f o rm atio n to d ef

en se co u n sel o n N o v e m

b er 2 4 , 2 0 1 4

. 6f

if ty y ears f or each count in the custody o f the MDOC, with ten y ears s u s p e n d e d a n d f ive
y ears of supervised probation. ¶14. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WIL S O N, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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