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Swington v. State6/17/1999
ive evidence of possession with intent, as they help to corroborate the intent element, the lack thereof certainly does not indicate that the defendant is not guilty of the crime." While the mention of the lack of such evidence may have been appropriate, it cannot be said that there is a reasonable probability that, but for counsel's failure to note the absence of such evidence the result of the proceeding would have been different. We find that the failure to mention the lack of evidence of drug paraphernalia and money was not sufficient to constitute prejudice to the defense, and therefore Swington's argument as to this error fails.
G. Counsel never requested an accomplice instruction directing the jury to view Reed's testimony with caution and suspicion.
. Swington alleges that his counsel was ineffective in not requesting an accomplice instruction directing the jury to view Reed's testimony with caution and suspicion. This Court has previously addressed this argument in Martin v. State, 609 So. 2d 435, 440 (Miss. 1992), wherein we held that " hile it is true that, if requested, such an instruction would no doubt have been given, the failure to request the instruction does not rise to the level of ineffectiveness." The Court found that this is particularly true where evidence is presented attacking the credibility of the witness. Id. We find ample evidence in the record impeaching the credibility of Reed; and therefore, no instruction was needed. This assignment of error is without merit.
I. Counsel had Swington demonstrate that he could knock a paper ball off of a table, destroying any value his quadriplegia may have had to his defense.
. Swington alleges that his trial counsel was deficient in demonstrating for the jury his level of quadriplegia. During direct examination of Swington, his attorney noted that there was controversy during the trial concerning the level of his quadriplegia. She asked him if he could pick up a paper ball in front of him. He replied that he could knock it off the table and proceeded to demonstrate the action.
. On appeal, Swington alleges that the demonstration "destroyed what value his quadriplegia may have had to his defense." As such, he asserts that his counsel was constitutionally deficient in requesting that he perform the demonstration.
. Once again, there is a presumption that counsel's decisions are strategic in nature, rather than negligent. See Handley v. State, 574 So. 2d 671, 684 (Miss. 1990); Leatherwood v. State, 473 So. 2d 964, 968-69 (Miss. 1985). Her subsequent argument establishes that she was using the demonstration to show that he could not have picked up the drugs. Apparently, she made this argument to show that he could not have placed them on the table either. The employment of this trial strategy did not prejudice Swington's defense.
J. Counsel stipulated after the verdict that the sale was within 1,500 feet of a church when same was a substantive amendment to the indictment.
. Swington's allegation that he was denied effective assistance of counsel due to his attorney's stipulation that the sale occurred within 1,500 feet of a church is without merit. The prosecution filed a motion to amend the indictment five days prior to trial, on March 5, 1997. On March 12, 1997, during the hearing to amend the indictment, Swington's attorney stipulated to the fact that the site where the sale took place actually was within 1,500 feet of Flowery Mount Baptist Church, as she had visited the site herself and determined the same. Without arguing, Swington asserts that " counsel stipulated after the verdict that the sale was within 1,500 feet of a church when same w
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