Criminal case and a right to a speedy trial

Mississippi Reports

BOONE v. STATE, 2004-KA-02525-COA (Miss.App. 11-28-2006)
HENRY LONZO BOONE, III APPELLANT v. STATE OF MISSISSIPPI
APPELLEE. No. 2004-KA-02525-COA. Court of Appeals of
Mississippi. November 28, 2006.

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT,
TRIAL JUDGE: HON. ROBERT P. KREBS, DATE OF JUDGMENT:
8/20/2004

DISPOSITION: AFFIRMED

ATTORNEY FOR APPELLANT: BERNARD GAUTIER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
DEIRDRE McCRORY

DISTRICT ATTORNEY: ANTHONY N. LAWRENCE, III

BEFORE MYERS, P.J., SOUTHWICK AND GRIFFIS, JJ.

MYERS, P.J., FOR THE COURT:

¶ 1. Before this Court is an appeal filed on behalf
of Henry Lonzo Boone, III from his conviction in the
Circuit Court of Jackson County of capital murder during
the commission of a robbery as defined by Mississippi Code
section 97-3-73 (2004). On August 19, 2004, the jury
returned a guilty verdict against Boone, finding that on
November 6, 2002, Boone shot and killed his own father,
before fleeing the scene with his father’s gun and car. The
trial judge sentenced Boone to a term of life, without the
possibility of parole, in the custody of the Mississippi
Department of Corrections. Boone now appeals raising the
following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING BOONE’S MOTION
TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL?

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE
BOONE’S “TWO THEORY” INSTRUCTION TO THE JURY OR
ALTERNATIVELY IN FAILING TO REFORM ANY DEFICIENCIES IN THE
INSTRUCTION OR OFFER COUNSEL AN OPPORTUNITY TO PREPARE
ANOTHER INSTRUCTION?

III. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO LAW
AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

IV. WHETHER BOONE RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL?

¶ 2. Finding no error, we affirm the ruling of the
trial court.

STATEMENT OF THE FACTS

¶ 3. At approximately 11:20 p.m., on November 6,
2002, Deputy Brian Cooper of the Jackson County Sheriff’s
Department and Lieutenant Brian Vice of the Moss Point
Police Department were simultaneously dispatched to the
scene of a single car roll-over accident on Saracennia Road
a few miles north of Moss Point, Mississippi. At the scene
of the accident, the officers discovered a white male
trapped in a Ford Taurus bearing Mississippi license plate
number U.S. Armed Forces 1732 D and registered to Henry
Lonzo (H.L.) Boone, II. However, the driver and sole
occupant of the vehicle was H.L.’s son, Henry Lonzo Boone,
III (Boone). Boone was unconscious and suffering from
life-threatening injuries.

¶ 4. While emergency medical technicians worked to
remove Boone from the vehicle, Lieutenant Vice conducted a
routine sweep of the accident debris field. Approximately
seventy feet from the overturned vehicle, Lieutenant Vice
discovered a .38 caliber revolver. Lieutenant Vice
retreived the revolver and immediately turned it over to
Deputy Charlie Myers of the Jackson County Sheriff’s
Department. Deputy Myers turned the weapon over to Deputy
Cooper, who then cleared the chamber by dropping the three
live rounds and two spent shell casings contained therein
onto the back seat of his patrol car. Deputy Myers then
reported the revolver’s serial number to the National Crime
Information Computer,[fn1] secured the weapon and its
contents in his patrol car, and returned to assist with the
extraction of Boone.

¶ 5. Sergeant Bryan White of the Jackson County
Sheriff’s Traffic Division arrived on the scene of the
accident at approximately 11:45 p.m. Shortly thereafter,
Deputies Cooper and Myers were dispatched from the accident
scene to a burglary in progress at 9490 Lotus Drive, less
than three miles from the accident scene. The deputies
arrived within minutes of the dispatch, and immediately
conducted a sweep of the exterior of the residence where
they discovered an elderly man on the back patio. The
unidentified man was bleeding profusely and had lost
auditory function as a result of a gunshot wound to the
head. After determining that the injured man was not a
threat, the deputies asked the homeowner, Jan Pendergrass,
to step outside. Pendergrass then identified the man as her
father and next door neighbor, H.L. Boone. H.L. had
apparently been trying to wake Pendergrass, but in his
weakened condition had managed only to arouse her suspicion
that someone was attempting to break into her home.

¶ 6. Once an ambulance had arrived and H.L. was
under the care of emergency medical personnel, Deputies
Cooper and Myers walked next door to H.L.’s home. There
they encountered a blood smeared doorway and blood soaked
recliner with a .38 caliber bullet lodged in the headrest.
The deputies recalled that they had recovered a .38 caliber
revolver minutes earlier at the scene of Boone’s accident,
and that the car in which Boone had been driving was
registered to H.L. Immediately the deputies recognized the
possibility that Boone may have shot his father while
robbing him of his gun and car. The investigation then
proceeded as an assault during the commission of a robbery.
However, four days later, on November 10, 2002, H.L. Boone
died as a result of his wounds, never having identified his
attacker. The investigation was then elevated from an
assault during the commission of a robbery, to murder
during the commission of a robbery, a capital offense.

¶ 7. Meanwhile, Boone was transported to Singing
River Hospital in Pascagoula, where he remained in a coma
for nearly three weeks. On November 8, 2002, and prior to
Boone’s release from the hospital, law enforcement
officials formally requested that the State Crime Lab
conduct gunshot residue (GSR) analysis on samples taken
from Boone’s hands and from the steering wheel of his
father’s car. On November 26, 2002, Boone was released from
the hospital and immediately taken into custody on the
charge of capital murder. However, due to an apparent
combination of backlog and neglect, the crime lab failed to
complete the GSR report on Boone and the steering wheel
until August 19, 2003. Despite the fact that no traceable
GSR was found on either Boone or the steering wheel, the
district attorney presented the evidence against Boone to a
grand jury, and an indictment was returned on October 9,
2003, charging Boone with capital murder. Boone, who had
been in custody since his arrest on November 26, 2002,
filed a motion to dismiss for failure to grant a speedy
trial on November 5, 2003, he was arraigned on January 23,
2004, and his trial was set for May 3, 2004, but continued
upon an agreed order until August 16, 2004.

¶ 8. Boone’s trial began as scheduled on August 16,
2004, and substantial circumstantial evidence was presented
in support of the State’s argument that a drunken and
murderous Boone shot his own father, in cold blood and with
his father’s own gun, then fled the scene with the gun and
in his father’s car. The evidence presented by the State
included the testimony of Michael Knight that at or around
11:00 p.m. on November 6, 2002, after Knight and Boone had
spent some time drinking beer together, Knight dropped
Boone off at Boone’s trailer home. Boone’s trailer home is
located approximately 100 yards from his father’s home and
150 yards from the home of his sister, Jan Pendergrass.
Several area residents testified to hearing strange noises
shortly after 11:00 pm. One neighbor testified to hearing
loud bangs, similar to the repeated slamming of a car door,
and another testified that she thought she heard her horses
kicking the side of her barn. Both neighbors testified to
hearing a car door slam, tires squeal, and a car speed off
from the area moments after hearing the unidentified loud
bangs. There was also testimony from Phillip Dees, H.L.’s
grandson-in-law and Boone’s nephew-in-law, that the gun
found at the scene of Boone’s accident belonged to H.L. and
was kept in a magazine rack in the den where H.L. was shot.
Furthermore, ballistics tests proved that the gun found at
the scene of Boone’s accident fired the bullet found lodged
in the headrest of H.L.’s blood soaked recliner. The
forensic evidence suggested that the assailant fired once,
grazing H.L.’s cheek and earlobe, and then fired a second
and ultimately fatal shot into the front left portion of
H.L.’s head. Finally, a State Crime Lab expert testified
that the absence of GSR on Boone’s hands or on the steering
wheel in no way proved that he had not recently fired a
weapon.

¶ 9. In his defense, Boone first argued that the
bullet recovered from his father’s body was too badly
damaged to be traced to a specific gun. He also argued that
the two spent shell casings found in the .38 caliber
revolver recovered from the scene of his accident did not
match the three live rounds in the gun or any of the boxes
of unused rounds found in H.L.’s home. Boone stressed that
the GSR analysis performed on his hands and on the steering
wheel were negative and that his fingerprints were not
found on either the bullets or the murder weapon.
Furthermore, he asserted that although he has no
recollection of the night in question, he loved his father
and would not have done anything to hurt him. Boone
attributes his amnesia as to the events of the evening to
an alcoholic blackout or alternatively to the trauma
suffered as a result of his accident. Blood alcohol
concentration (BAC) analysis performed on Boone revealed
that his BAC was .264% on the night of the accident, more
than three times the legally permissible minimum level for
the operation of a motor vehicle under Mississippi Code
Annotated section 63-11-30(1) (Rev. 2004).

¶ 10. Despite the lack of direct evidence, the jury
found the circumstantial evidence propounded by the State
sufficient to find Boone guilty of capital murder, and
handed down its conviction on August 19, 2004. Boone filed
a motion for a new trial on August 27, 2004. After a
hearing, the trial judge denied Boone’s motion and
subsequently sentenced him to a term of life without the
possibility of parole. From the disposition of the trial
court, Boone now appeals.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING BOONE’S MOTION
TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL?

¶ 11. Boone’s first assignment of error is that the
trial court erred in denying his motion to dismiss for
failure to grant a speedy trial. “A defendant in a criminal
case has a right to a speedy trial, guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution
and by Article 3, ¶ 26 of the Mississippi
Constitution.” Sharp v. State, 786 So.2d 372, 377 (¶
4) (Miss. 2001). The Sixth Amendment to the United States
Constitution provides that “in all criminal prosecutions,
the accused shall enjoy the right to a speedy and public
trial.” In addition, Mississippi Code Annotated section
99-17-1 (2004) creates a statutory right to a speedy trial.
Boone makes no allegation of a statutory violation and only
challenges the trial judge’s failure to grant his motion to
dismiss on a constitutional basis.

STANDARD OF REVIEW

¶ 12. Our standard of review is manifest error.
Mitchell v. State, 792 So.2d 192, 213 (¶ 80) (Miss.
2001). On appeal, factual determinations of a trial judge
made in ruling on a motion to dismiss are entitled to the
same deference as a jury verdict and will not be reversed
unless manifestly wrong. Id. Additionally, we must review
Boone’s assertion of error for failure to grant a speedy
trial under the four-factor balancing test as laid out by
the United States Supreme Court in Barker v. Wingo, 407
U.S. 514, 530 (1972), and adopted by the Mississippi
Supreme Court in Wells v. State, 288 So.2d 860, 862-63
(Miss. 1974). The factors which must be balanced in light
of the surrounding circumstances and on a case-by-case
basis are: (1) the length of delay, (2) the reason for the
delay, (3) the defendant’s assertion of his right to a
speedy trial, and (4) any prejudice to the defendant
resulting from the delay. Sharp, 786 So.2d at 372 (¶
15) (citing Barker, 407 U.S. at 530).

DISCUSSION

¶ 13. In applying the Barker factors to the present
case, we note that the application is not mechanical;
rather, we must look to the totality of the circumstances
to determine if Boone was unlawfully denied his Sixth
Amendment right to a speedy trial. Herring v. State, 691
So.2d 948, 955 (Miss. 1997). Our Barker analysis follows:

1. Length of Delay

¶ 14. The first factor has been called a triggering
mechanism, because until there is some delay which is
presumptively prejudicial, there is no need for an inquiry
into the remaining balancing factors. Barker, 407 U.S. at
532-33. After review of the trial court record, we find the
delay from Boone’s arrest to his trial to be approximately
522 days. “A delay of eight months or more between arrest
and trial is presumptively prejudicial.” Reynolds v. State,
784 So.2d 929, 933 (¶ 10) (Miss. 2001). Where, as
here, there has been an extensive delay prior to trial,
that delay, “must be weighed heavily in favor of [the
defendant].” Herring, 691 So.2d at 955. In the case sub
judice, there was a ten-month delay between the arrest and
indictment, and another six months passed between the
indictment and the first trial setting. The State
acknowledges that the delay in this case weighs in favor of
Boone and requires this Court to apply the remaining Barker
factors. However, this delay is not conclusively weighed
against the State, and may be rebutted when balanced
against the remaining factors. Id.

2. Reason for the Delay

¶ 15. Once the delay is found to be presumptively
prejudicial, the burden of persuasion shifts to the
prosecution to produce evidence justifying the delay. Id.
(citing State v. Ferguson, 576 So.2d 1252, 1254 (Miss.
1991)). The lower court found that the overwhelming
majority of the delay in this case was a result of neglect
on the part of the State Crime Lab in failing to timely
process the physical evidence. Our supreme court has
determined such delay to be neutral and not to weigh
heavily against the State for purposes of determining
constitutional speedy trial violations. State v. Magnusen,
646 So.2d 1275, 1281 (Miss. 1994). Thus, this factor does
not weigh in favor of either party.

3. Defendant’s Assertion of his Right

¶ 16. The defendant’s assertion of his right to a
speedy trial is afforded strong evidentiary weight. Barker,
407 U.S. at 531. It is well-established that the State
bears the burden of bringing the accused to trial in a
speedy manner. Id. However, “the defendant bears some
responsibility to assert his right to a speedy trial, and
the failure to assert the right will make it difficult to
prove he was denied a speedy trial.” Taylor v. State, 672
So.2d 1246, 1262 (Miss. 1996). The record indicates that
Boone filed a motion to dismiss for failure to grant a
speedy trial on November 5, 2005, but this Court has
consistently upheld the ruling of our supreme court in
Perry v. State, 638 So.2d 871, 875 (Miss. 1995), that “a
demand for dismissal is not the equivalent of a demand for
speedy trial.” See, e.g., Swindle v. State, 755 So.2d 1158,
1166 (¶ 23) (Miss.Ct.App. 1999). Here, the trial
judge reviewed the speedy trial claim presented by Boone,
analyzed the circumstances under the appropriate
considerations, determined that the delay was not to be
weighed against the State, and denied Boone’s motion to
dismiss. Boone did not make a demand for a speedy trial
until April 15, 2004, nearly seventeen months after his
arrest, six months after he was indicted, four months after
his trial date had been set, and less than three weeks
before the trial was scheduled to commence. Thereafter,
Boone’s attorney entered an agreed order of continuance
with the assistant district attorney to postpone the case
until August 16, 2004. Thus, this factor weighs heavily
against Boone and in favor of the State.

4. Prejudice to the Defendant

¶ 17. The burden of persuasion is again upon the
prosecution to show that Boone suffered no prejudice
through the delay. Herring, 691 So.2d at 956. After review
of the record, we can find no evidence of any actual
prejudice suffered by Boone from the delay. The evidence
acquired by the delay (negative gunshot residue test
results) could be viewed as exculpatory, and therefore, the
State acquired no advantage or benefit from the delay.
Further, Boone’s assertion that the pretrial incarceration
was oppressive is without merit. Boone made no attempt to
secure bail, and therefore, he cannot argue that the
incarceration caused him prejudice when he neither
attempted to avoid it nor brought forth evidence of how the
incarceration either disrupted his employment, drained his
financial resources, curtailed his associations, subjected
him to public obloquy, or created anxiety in him, his
family, or friends. Id. This factor, too, weighs heavily
against Boone and in favor of the State.

¶ 18. When evaluating Boone’s speedy trial claim
under the totality of the circumstances, and after applying
the Barker factors, we hold that Boone’s constitutional
right to a speedy trial was not violated. Accordingly, we
find no manifest error in the trial court’s denial of
Boone’s motion to dismiss. Boone’s assignment of error is
without merit.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE
BOONE’S “TWO THEORY” INSTRUCTION TO THE JURY OR
ALTERNATIVELY IN FAILING TO REFORM ANY DEFICIENCIES IN THE
INSTRUCTION OR OFFER COUNSEL AN OPPORTUNITY TO PREPARE
ANOTHER INSTRUCTION?

¶ 19. Boone’s second assignment of error is that the
trial court erred in refusing to provide the jury with his
proposed “two-theory” instruction D-6. Alternatively, Boone
argues that if the instruction was inartfully worded, that
the court should have either reformed the deficiencies or
allowed his counsel an opportunity to prepare another
instruction. During a conference on the jury instruction,
the State properly objected to proposed instruction D-6,
and the trial court ruled that the subject matter of the
instruction was fully covered in other instructions already
accepted by the court and that giving the instruction would
be redundant.

STANDARD OF REVIEW

¶ 20. “In determining whether error lies in the
granting or refusal of a particular instruction, the
instructions actually given must be read as a whole.”
Johnson v. State, 823 So.2d 582, 584 (¶ 4)
(Miss.Ct.App. 2002). If the instructions, when read as a
whole, fairly announce the law of the case and create no
injustice, no reversible error will be found. Id. Further,
no one instruction is to be taken out of context. Poole v.
State, 826 So.2d 1222, 1230 (¶ 27) (Miss. 2002).
Finally, a defendant is entitled to have jury instructions
given which present his theory of the case; however, this
entitlement is limited in that the court may refuse an
instruction which incorrectly states the law, is covered
fairly elsewhere in the instructions, or is without
foundation in the evidence. Id.

DISCUSSION

¶ 21. On appeal, Boone correctly argues that the
case against him was based in large part, if not entirely,
on circumstantial evidence. “In a case where all the
evidence tending to prove the guilt of the defendant is
circumstantial, the trial court must grant two jury
instructions.” Jones v. State, 797 So.2d 922, 928-29
(¶ 26) (Miss. 2001) (see Parker v. State, 606 So.2d
1132, 1140 (Miss. 1992)). The required instructions are:

First, the court must grant a jury instruction that every
reasonable hypothesis other than that of guilt must be
excluded in order to convict . . . in addition to giving
an instruction on circumstantial evidence, the trial court
must grant a “two-theory” instruction such as D-7. . . .

Id.

Instruction D-7, given by the trial court in Parker, 606
So.2d at 1140, reads as follows:

The Court instructs the jury that if there be a fact or
circumstance in this case susceptible of two
interpretations, one favorable and the other unfavorable
to [the defendant], when the jury has considered such fact
or circumstance with all the other evidence, if there is
reasonable doubt as to the correct interpretation, you,
the jury, must resolve such doubt in favor of [the
defendant], and place upon such fact or circumstance the
interpretation most favorable to him.

Id.

¶ 22. In the case sub judice, the trial court
granted the typical circumstantial evidence instruction.
However, Boone argues that the court failed to provide the
jury with the required “two-theory” instruction when it
failed to give proposed instruction D-6. The portion of the
instruction which Boone argues should have been allowed
reads as follows:

So, if the Jury, after careful and impartial
consideration of all of the evidence in the case, has a
reasonable doubt that a Defendant is guilty of the charge,
it must acquit. If the Jury views the evidence in the case
as reasonably permitting either of two conclusions
— the Jury should of course adopt the conclusion of
innocence.

¶ 23. No per se “two-theory” instruction was given
to Boone’s jury. However, when the jury instructions are
read as a whole, we find that the law is correctly stated
and the provisions of the refused instruction are fairly
covered elsewhere in the instructions. First, proposed
instruction D-6 provides: “if the Jury, after careful and
impartial consideration of all of the evidence in the case,
has a reasonable doubt that a Defendant is guilty of the
charge, it must acquit.” Likewise, instruction D-5, given
to the jury, provides in part: “The State must prove each
and every element of the crime charged beyond a reasonable
doubt and if you find that the State failed to prove each
element of the crime charged beyond a reasonable doubt,
then you must acquit the Defendant of the crime charged.”
Second, proposed instruction D-6 provides: “If the Jury
views the evidence in the case as reasonably permitting
either of two conclusions — the Jury should of
course adopt the conclusion of innocence.” Similarly,
instruction D-2, given to the jury, provides in part: “You
are instructed that if a reasonable doubt does arise, you
must resolve said doubt, if any, in favor of the defendant
and return a verdict of not guilty.” Therefore, we find
that when read as a whole, the instructions given to the
jury accurately state the law and fairly cover the content
of a proper “two-theory” instruction.

¶ 24. We agree that Boone was entitled to have jury
instructions given which presented his theory of the case.
See Poole v. State, 826 So.2d at 1230 (¶ 27).
However, upon our review of the record we find no evidence
as to what Boone’s theory might have been. In closing
arguments, Boone’s counsel alluded to alternative theories
such as suicide or a mystery gunman who just so happened to
have discarded the murder weapon at the exact location
where Boone would later crash his father’s vehicle, but we
find no evidence in the record to support either theory as
a reasonable hypothesis which should have been considered
by the jury. As to Boone’s alternative argument, we find
proposed instruction D-6 to have been adequately worded,
although redundant, and therefore, we do not address whether
the court should have either reformed the deficiencies or
allowed his counsel an opportunity to prepare another
instruction. Accordingly, we find no reversible error in
the trial court’s refusal to give proposed jury instruction
D-6. This issue is without merit.

III. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO LAW
AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 25. Boone’s third assignment of error is that the
jury’s verdict was contrary to the overwhelming weight of
the evidence. On this basis, Boone filed a motion for a new
trial on August 27, 2004. The motion was denied. First, we
note that before Boone may be entitled to a reversal based
on the insufficiency of the evidence, he must overcome a
formidable standard of review.

STANDARD OF REVIEW

¶ 26. “In determining whether a jury verdict is
against the overwhelming weight of the evidence, this Court
must accept as true the evidence which supports the verdict
and will reverse only when convinced that the circuit court
has abused its discretion in failing to grant a new trial.”
Herring v. State, 691 So.2d at 957 (citing Thornhill v.
State, 561 So.2d 1025, 1030 (Miss. 1989)). “Only when the
verdict is so contrary to the overwhelming weight of the
evidence that to allow it to stand would sanction an
unconscionable injustice will this Court disturb it on
appeal.” Id. (citing Benson v. State, 551 So.2d 188, 193
(Miss. 1989)). Thus, the scope of review on this issue is
limited in that all evidence must be construed in the light
most favorable to the verdict. Id. (citing Mitchell v.
State, 572 So.2d 865, 867 (Miss. 1990)).

DISCUSSION

¶ 27. Our review of the record makes clear that
there was ample circumstantial evidence for the jury to
convict Boone of capital murder. First, there was testimony
that placed Boone at or near the scene of the crime at
approximately 11:00 p.m. on the night of November 6, 2002.
Next, several area residents testified to hearing loud
bangs shortly after 11:00 p.m., and to hearing a car door
slam, tires squeal, and a car speed off from the area
moments after hearing the unidentified loud bangs. There was
also testimony that the revolver found at the scene of
Boone’s accident belong to H.L Furthermore, ballistics
tests proved that the revolver found at the scene of
Boone’s accident fired the bullet that was lodged in the
headrest of H.L.’s blood-soaked recliner. Finally, a State
Crime Lab expert testified that the absence of GSR on
Boone’s hands or on the steering wheel in no way proved
that he had not recently fired a weapon.

¶ 28. The facts, when viewed in the light most
favorable to the verdict, indicate the a jury could find
beyond a reasonable doubt and to the exclusion of every
reasonable hypothesis that Boone shot his father in the
head and then fled the scene with his father’s revolver and
in his father’s car. The lower court correctly denied
Boone’s motion for a new trial, and this Court will not
disturb the jury verdict where, as here, no unconscionable
injustice will result and there is ample evidence, albeit
circumstantial, to support the jury’s findings. We find
that the jury verdict was not against the overwhelming
weight of the evidence, and therefore, affirm the verdict.

IV. WHETHER BOONE RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL?

¶ 29. Boone’s final assignment of error is that his
counsel rendered constitutionally ineffective assistance.
Boone asserts counsel error on four grounds: (1) failure to
file a motion demanding a speedy trial, (2) failure to
question crime lab witnesses as to whether the lab would
have conducted the gunshot residue test sooner had the
district attorney requested such performance, (3) failure
to argue that the lack of diligent pursuit of timely test
results by the district attorney was oppressive conduct
attributable to the State, and (4) failure to submit a
proper “two-theory” instruction.

STANDARD OF REVIEW

¶ 30. Claims of ineffective assistance of counsel
are reviewed by using the two-pronged test of Strickland v.
Washington, 466 U.S. 668, 687 (1984). In order to prevail
on a claim of ineffective assistance of counsel, Boone has
the burden of proof to show by a preponderance of the
evidence that (1) counsel’s performance was deficient, and
(2) that the deficiency did, in fact, prejudice the
defense’s case so as to prevent a fair trial. Id.; Hall v.
State, 735 So.2d 1124, 1127 (¶ 6) (Miss.Ct.App.
1999). In determining whether the first prong of
Strickland, concerning counsel’s performance has been
satisfied, we must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance. . . .” Id. at 689. The second
prong of the Strickland test requires that Boone prove
prejudice by showing that there was a reasonable
probability, that but for counsel’s errors, the trial
court’s result would have been different. Id. at 699.
Whether the prongs of this test are met is determined by an
examination of the totality of the circumstances. Id.

DISCUSSION

¶ 31. After review of the record, we cannot say that
any of Boone’s assertions pass muster under the Strickland
test. First, the failure to file a motion demanding a
speedy trial cannot be said to have affected the outcome of
the trial because the evidence obtained by the delay was
arguably exculpatory. As to Boone’s second and third
assignments of counsel error, we follow the sound holding
of the Mississippi Supreme Court that decisions to call
witnesses, ask certain questions, or make particular
objections fall within the purview of the attorney’s trial
strategy and “cannot give rise to an ineffective assistance
of counsel claim.” Carr v. State, 873 So.2d 991, 1003
(¶ 27) (Miss. 2004). Finally, as to the failure to
submit a proper “two-party instruction,” we note that Boone
argued in his second assignment of error that the trial
court should have allowed the “two-party” theory” proposed
by his counsel. We find the instruction complained of to be
legally sufficient; therefore, we cannot hold that it was
ineffective assistance of counsel to propose that the
instruction be given to the jury as written. Furthermore,
this Court will not allow a party to argue that an
instruction was proper and the court’s failure to provide
the jury with that instruction was in error, and in the
same appeal argue that the instruction is insufficiently or
inartfully worded, and therefore, an example of ineffective
assistance of counsel. Such obvious contradictions will not
hold weight with this Court. Considering the totality of
the circumstances, the performance of Boone’s trial counsel
was not deficient, nor did it prejudice his case in any
way. Therefore, Boone has failed to meet his burden of
proof under the two-part test set out in Strickland, and
his claim of ineffective assistance of counsel fails.

CONCLUSION

¶ 32. After a thorough review of the trial court
record, and having fully analyzed each of Boone’s four
assignments of error under the applicable legal standards,
we find each of Boone’s claims to be without merit. The
trial court did not err in refusing to grant Boone’s motion
to dismiss for failure to grant a speedy trial. The
substance of a proper “two-theory” instruction was fully
and adequately covered in the instructions given to the
jury. The jury’s verdict was not against the overwhelming
weight of the evidence. Finally, Boone’s assistance of
counsel was not constitutionally ineffective. Accordingly,
the judgment of the Circuit Court of Jackson County is
affirmed.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON
COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE
WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER,
GRIFFIS, BARNES, AND ROBERTS, JJ., CONCUR. ISHEE, J., NOT
PARTICIPATING.

[fn1] The National Crime Information Computer (NCIC) aids
law enforcement agencies in determining if a gun has been
reported stolen by running the serial number through a
national database.