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Serial: 193332 IN THE SUPREME COURT OF l\ilssissippi' No. 2014-M-00496 FILED SEP 11 2014 OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS BARRY LEMAX ltmlton Al.KIA BARRY MELTON Al.KIA BARRY L MELTON Petitioner v. STATE OF MISSISSIPPI Respondent ORDER 1b.is matter is before the panel of Waller, C.J., Kitchens and Coleman, JJ., on the Application for Leave to Proceed in the Trial Court filed pro se by Petitioner and the Response filed by Respondent. Petitioner alleges that he received ineffective assistance of counsel at trial. After due consideration, the panel finds that the Application for Leave to Proceed in the Trial Court is well taken and should be granted. IT IS TIIEREFORE ORDERED that the Application for Leave to Proceed in the Trial Court filed prose by Petitioner is granted. Petitioner's Motion for Post-Conviction Collateral ~ Relief is due to be filed in the Harrison County Circuit Co~ First Judicial District, by October 24, 2014. SO ORDERED, this the 10th day of September, 2014...
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IN THE CIRCUIT COURT OF ~ COUNTY, MISSISSIPPI ~A. --- rrv -r ~-.. /7Jelhn7 ---... PEIIlIONER - --- ---- vs. CAUSENO. 2 DI I~ K ~ ~~ :$-r!))j-c, I -2.o:,"-/;-76 STAIE OF MJS.SISSIPPI RESPONDENf A q~tj\-- It.\.,. )-t/& MOTION FOR POST-CONVICTION COLLATERAL RELIEF A~-C0-6 ~J ~ -co A. ffimesnow, ~ rrv ~- 77Je-/fo/) I,Petitioner,ProSe, and files this bis Motion for Post-Conviction Collateral Relief pursuant to :Mississippi Code Annotated sectii)n 99-39-1 et. seq., and in support thereof would show unto this Honorable Court the following, to-wit: L Identity of Proceedings in Which Petitioner was Convicted Petitioner was indicted_by the Grand Jury of this sai<l county on or about the -#- (L. / f, day of (/14/11 e.,, ~ {) D'1 on the charge of r~,,l)--1'12 v~ f~.inviolationof Miss. Code Ann. Section 4 /-'-?- Cf - I 79-. Thereafter, Petitioner was tried and convicted on said charges by a jury of his peers and was sentenced by the.u Honorable Judge ~"7? J~!J-r..to serve a tem of!;c::> years in the custody of the Mississippi Department of Corrections. Entry of judgment of conviction and sentence was imposed on the A day of ~~lfil 3 GAY~PARKER C1fcuit Clerk Bv ' 7.,,.-,- ~ - DC r~~~
IN THE CIRCUIT COURT OF HARRISON COUNTY. MlSSISSIPPI FIRST JUDICIAL DISTRICT a [ED. ~ [L STATE OF MJSSISSIPPI O 1 MA~_. 2011 VS. ~=~~~E~CAUSE-~ER: B-2401-09-476 BARRY. LEMAX MELTON By DEFENDANT MOTION ln LilVIINE ( 404b) TIIB Defendant, BARRY L. :MELTON. moves the Court to enter an Order that before trial and/or presentation to the jury by the State, that the following be heard by the Comt as a proffer: (1) Any and all evidence that may be presented as 404(b) evidence against him; and. (2) Any and all evidence regarding any rmcharged criminal actions. RESPECTFULLY SUBMITIED, this the day of March, 2011. -- BARRY L. MELTON, DEFENDANT BY:. LISA D. COLLUMS, HJS ATTORNEY Office of the Public Defender P. 0. Drawer CC. Gulfport, MS 39502 (228) 563-5328 MS Bar No.: 6399 Page 1 of 2 38
RESPECT.FULLY SUBMll led, this the \ day of March, 2011. BARRYL MET.TON, DEFENDANT BY: LISAD. COLLUMS, HISATIORNEY Public Defender's Office P. 0. Drawer CC Gulfport, MS 39502 (228) 563-5328 MS Bar No.: 63-99 CERTIFICATE OF SERVICE I, Lisa D. Collums, do hereby certify that I have this day hand-delivered a true and correct copy of the above and foregoing Motion in Limine Regarding Prior Criminal Convictions, to the Office of the District Attorney, located within the Harrison County Courthouse, Gulfport, MS. This the day of March, 2011. LISA D. COLLUMS 2 37
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SUPREME COURT OF MISSISSIPPI ADMINISTRATIVE OFFICE OF COURTS POST OFFICE BOX 117 JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 576-4630 FAX (601) 576-4639 April 30, 2015 Re: BARRY L. MEL TON V. ST A TE OF MISSISSIPPI; Harrison County Circuit Court; Cause No. A2401-14-286 Notice to the Office of the Supreme Court Clerk Pursuant to M.R.A.P. 15 On February 27, 2015, the Administrative Office of Courts received notice pursuant to M.R.A.P. 15 that the above referenced case was taken under advisement on October 20, 2014. After having received no written notice of a decision within (6) six months of the matter being taken under advisement, the Administrative Office of Courts is filing this notice with your office. The trial judge and parties have thirty (30) days from the date ofthis notice to file a response as provided by M.R.A.P. 15(a). vin Lackey, Director Administrative Office of cc: Hon. Lawrence P. Bourgeois, Jr. Harrison County Circuit Clerk Barry L. Melton Hon. Jim Hood, Esq. AOC# 15-2015-00003
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IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI FIRST J:UI)ICIAL DISTRICT BARRY L. MELTON vs. STATE OF MISSISSIPPI PETITIONER CAUSE NO. A2401-14-286 RESPONDENT ORDER DENYING MOTION FOR POST-CONVICTION COLLATERAL RELIEF THIS CAUSE came before this Court on Petitioner's Motion for Post-Conviction Collateral Relief and the Court, in accordance with Miss. Code Ann. 99-39-1, et seq., the Court has examined the motion relating to the conviction under attack in cause number B2401-2009-476. On January 13, 2009, Barry L. Melton was arrested for possession of a controlled substance with the intent to sell or distribute. On March 2, 2011, Melton was convicted by a jury of possession of a controlled substance with the intent to sell or distribute, and was sentenced as a habitual offender to forty ( 40) years incarceration. Melton filed his Motion for New Trial, or, in the alternative, Judgment Notwithstanding the Verdict, which was denied. On November 8, 2011, Melton filed his appeal. The verdict of the lower court was affirmed by the Mississippi Court of Appeals in Melton v. State, 118 So. 3d 605 (Miss. App. 2012); certiori was subsequently denied. On October 20, 2014, Melton filed the present Motion for Post Conviction Collateral Relief. The current Motion alleges that he received ineffective assistance of counsel. This Court believes that Floyd's arguments are without merit. In order to prove an assertion of ineffective assistance of counsel, the Mississippi Supreme Court has devised a two (2) part test. To show ineffective assistance of counsel
the defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was deficient and (2) the deficiency deprived the defendant of a fair trial. This review is highly deferential to the attorney, with a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002), citing Hiter v. State, 660 So.2d 961, 965 (Miss.1995). In Jackson, the Supreme Court goes on to state that the choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections is part of trial strategy and do not give rise to ineffective assistance of counsel claims. Id. Melton claims that his trial counsel's conceding admission of his unredacted statement to police at trial was ineffective assistance of counsel. He claims that allowing the unredacted statement allowed evidence of prior bad acts that had previously been excluded by the Court under Rule 609. The admission of these prior bad acts are alleged to be prejudicial to him. However, the decision of Melton's attorney to not object to the admission of the statement falls within the ambit of trial strategy, and does not give rise to an ineffective assistance of counsel claim. Further, the Mississippi Court of Appeals has already deemed that sufficient evidence existed to convict Melton in Melton v. State, 118 So. 3d 605 (Miss. App. 2012). The Petitioner has failed to provide any proof of prejudice created by the admission of his statement. It is therefore, 2 ~~~ill GAY~~CUIT CLERK By~ D.C.
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l Motion (-~) 1 vehicle was operating that vehicle under a ~---~---,..,~~~i~~~~~~~~~~~~ 2 suspended driver's license. The defendant 3 subsequently made statements. 4 The Motion to Suppress is denied. 5 MS. COLLUMS: We have two other very quick 6 housekeeping matters. I filed a Motion In 7 Limine for 404(b) to exclude other evidence, or 8 other bad acts, and I believe the state is going 9 to confess that. 10 THE COURT: State? 11 MR. FISHER: Your Honor, the only thing - 12 there would be nothing from outside the realm of 13 this. I don't know if Ms. Collums is saying 0 14 that to include the 15 THE COURT: I think she is making reference 16 to other prior convictions. 17 MS. COLLUMS: No, other bad acts, Judge. 18 THE COURT: Other bad acts. Do you have 19 any other bad acts you wish to go forward on? 20 MR. FISHER: Nothing more than the 21 paraphernalia found in his pocket, I think 22 that 1 s conclusive of this case. 23 MS. COLLUMS : I think that would be. The 24 other motion we had does regard prior criminal 25 convictions under Rule 609. 26 MR. FISHER: Not unless some reason the 27.defendant opens the door. )... 28 29 THE COURT: So the second one is confessed. First motion is overruled. 27 Huey L. Bang, RMR, CRR (228)865-4184 circuit Court Reporter hueybang@cableone.net
Vair Dire (; 1 MS. COLLUMS: Overruled? 2-1-----------'THE-'-------'CO=--=---=OR'--"----=T'---':'-------- Denied. 0.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Trying to stop him from making reference that he had paraphernalia on him? MS. COLLUMS: No, sir, but any bad acts they might try to attribute to Mr. Melton that is not the subject of what the trial is about. THE COURT: Oh, that I s sustained. MR. FISHER: In fact, we will confess that. THE COURT: So both of them are confessed. Sustained anyway. {Discussion Held Off The Record) THE COURT: First note for the record is that all of the venire has been properly sworn to answer the questions and to try the issues. This is the next phase of the trial, which is referred to as voir dire or voir dire. It's merely jury selection. No matter how you pronounce it, it means to speak the truth. There are no right answers, there are no wrong answers. The parties will be looking for fair, open-minded jurors. If a question is posed to you that you don't wish to share it with some 60 total strangers,. you can approach the bench and share it with some five or six total strangers. This is a matter of the State of Mississippi versus Barry Lemax Melton. What says the state? MR. FISHER: - The state is ready, Your 28 Huey L. Bang, RMR., CRR (228)865-4184 circuit Court Reporter hueybang@aableone.net
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- \ ' -... (.. ) Officer Aaron Fore - Direct Examination 1 A. It's a second paragraph on the form that -------..~~---explains-to tb em they hav_e_the_righ.lt_o_ remain silent and \ _,,, 3 they choose to speak to us at that time without their 4 attorney present. And they acknowledge that they do want s to speak to us by, again, a second time signing their 6 name on a form. 7 8 9 Q. Did Mr. Melton choose to speak with you? A. Yes, sir, he did. Q. Was his statement that you took, was it a 10 recorded statement? 11 A. Yes, sir, it was. 12 Q. Did he say where he had been earlier that 13 evening? 14 A. Yes, he did. 15 Q. What did he say? 16 A. Mr. Melton stated to me that he had been at a 17 friend I s house. 1s MS. COLLUMS: Judge, if I may, it I s my 19 understanding we are going to introduce the 20 recorded statement, I think that would be the 21 22 23 24 25 26 27 28 29 best evidence. play it. THE COURT: MR. FISHER: THE COURT: MR. FISHER: THE COURT: BY MR. FISHER: Are we going to play the tape? Yes, Your Honor. Let 1 s get him to identify and May I approach? Yes. Q. Detective Fore, take a look at what's been 126 Hµey L. Bang, RMR, CRR {228)865-4184 circuit Court Reporter huey.bang@cableone.net
'. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 G 16 17 18. 19 20 21 22 23 24 25 26 27 28 ) 29 127 Officer Aaron Fore - Direct Examination marked as State's Exhibit 4 into evidence. can you tell me if you recognize this? A. Yes, sir. It's a compact disc containing the audio recorded statement I took from Mr. Melton. Q. Detective Fore, have you had the opportunity to " listen to this? ' A. Yes, I have. Q. In fact, when was the last time you listened to it? A. Yesterday here. Q. Was that in preparation for trial? A. Both in preparation for trial and in h~re. Q. Is it a fair and accurate representation of the statement that you took that day? A. Yes, it is. MR. FISHER: May I publish to the jury, Your Honor? THE COURT: Yes, sir. (Whereupon State's Exhibit 4 into evidence was played for the jury} BY MR. FISHER: Q. Is that you reading those rights? A. Yes, sir, it is. Q. Is that him signing the wai, ver you talked about earlier? A. Yes, sir. (Exhibit 4 continued to be played) Q. And, Detective, was that the.actual statement that was taken that evening? Huey L. Bang, RMR, CRR (228)865-4184 Circuit Court Reporter hueybang@cableone.net