Date: 05-22-2016

Case Style: Archie Quinn v. State of Mississippi

Case Number: 2014-KA-01115-SCT

Judge: Ann H. Lamar

Court: IN THE SUPREME COURT OF MISSISSIPPI

Plaintiff's Attorney: Lisa L. Blount, Forrest Allgood

Defendant's Attorney: Hunter N. Aikens, George T. Holmes, Office of the State Public Defender

Description: In the early morning hours of September 28, 2008, Terry Johnson called 911 from a
neighbor’s house and reported that someone had been “shooting in [his] house.” Johnson
reported that he had gotten out of the house, but that his girlfriend was still inside. Johnson
identified Archie Quinn as the shooter and reported that Quinn had shot him in the hip with
a shotgun.
¶3. Deputies responded to the scene and met Quinn driving toward them up the narrow
road that led to Johnson’s trailer. Quinn exited his vehicle and shot himself in the head with
a shotgun. The deputies secured Quinn’s shotgun and procured medical help for him. Some
of the officers then proceeded to Johnson’s trailer, where they discovered Stacy Gray’s body
lying in the bedroom. A grand jury subsequently indicted Quinn on four counts.1
Pretrial Proceedings
¶4. Shortly after Quinn appeared for his arraignment, his attorney filed a motion and
asked the trial judge to hold a competency hearing and to order that Quinn was not competent
to stand trial at that time. The parties then entered into an Agreed Order for Mental
Evaluation. The doctors at the Mississippi State Hospital at Whitfield were to determine if
Quinn had the “sufficient present ability to consult with his attorney with a reasonable degree
of rational understanding in the preparation of his defense,” and if he had a “rational as well
1The capital-murder count was severed from the other counts and is the only count at issue in this appeal. 2
as a factual understanding of the nature and the object of the legal proceedings against
him[.]” The doctors also were to determine if Quinn was “mentally retarded” pursuant to the
United States Supreme Court’s decision in Atkins v. Virginia.2
¶5. The doctors at Whitfield ultimately provided the trial court with four reports detailing
their competency findings. The first report stated that the doctors were “not able presently
to offer opinions to a reasonable degree of medical and psychological certainty” regarding
either Quinn’s competence to stand trial or whether he was mentally retarded. After
additional evaluation, the doctors issued a second report, in which they concluded
unanimously that Quinn had the “sufficient present ability” to consult with his attorneys, to
understand the nature of the legal proceedings against him, and to knowingly and
intelligently waive and/or assert his constitutional rights.
¶6. In the third report—which followed additional evaluation—Dr. Reb McMichael
opined that he no longer could state with a reasonable degree of medical certainty that Quinn
was competent to proceed. But in the fourth and final report—again, following additional
evaluation—both Drs. McMichael and Amanda Gugliano concluded that it was “now again
[their] opinion, to a reasonable degree of medical and psychological certainty,” that Quinn
was competent to proceed.
¶7. The trial judge held a competency hearing a few days before trial. The State asked
the trial judge to “take judicial knowledge of all matters and facts contained in the court file
in this cause number including the latest report from Dr. Reb McMichael at the Mississippi
2Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). 3
State Hospital at Whitfield.” The State rested at that point, and Quinn presented no evidence.
The trial judge found “beyond a reasonable doubt that Mr. Quinn [was] competent to proceed
to trial,” and he entered an order confirming his bench findings that day.
¶8. The trial judge also held a hearing to determine if Atkins v. Virginia precluded the
death penalty in Quinn’s case.3 The trial judge heard testimony from several witnesses, both
on behalf of Quinn and for the State. He ultimately granted Quinn’s motion, finding that
Quinn had “met his burden of proof by a preponderance of the evidence that the death
penalty is not a sentencing option in this particular case.”
Trial
¶9. Terry Johnson testified that he and Fanny Johnson divorced in early 2008, and that
Stacy Gray then moved in with him after Fanny moved out. Johnson and Gray had begun
dating several years before, while Johnson was still married. Gray previously had been in
a relationship with Archie Quinn, but Johnson did not know Quinn.
¶10. Johnson testified that he and Gray went to a casino in Philadelphia on the night of
September 27, 2008. While at the casino, Johnson received a call from Fanny, who told him
that Quinn was looking for Gray. Fanny ultimately gave Johnson’s number to Quinn, who
then called Johnson looking for Gray. Johnson and Gray were at the slot machines about an
hour and a half later when Quinn walked up to them. Johnson and Quinn had a conversation,
and “not one voice [was] raised.” Then Quinn and Gray talked a couple of times, and Quinn
3Quinn had filed a Motion to Preclude Imposition of Death Penalty, asking the trial judge to prevent the State from seeking the death penalty. 4
hung around the casino for awhile after that, but he did not approach them again. Johnson
and Gray left the casino around 3:00 a.m. the morning of September 28 and headed home.
¶11. Johnson testified that Gray woke him up around 4:30 a.m. and asked if he heard a
horn blowing. Gray told him she thought it was Quinn “out there blowing and [calling].”
So Johnson got up and looked outside, but he did not see anything. Not long after that,
Quinn called and said that he had been down to their house “blowing and calling,” but that
nobody had heard him. Quinn said that he had some things of Gray’s and that they needed
to “come out and get it,” but Johnson said it was too early for that. Quinn hung up, but about
fifteen minutes later, he came up the driveway, “blowing from the top of the road.” Johnson
raised his kitchen window and told Quinn that he could leave Gray’s things in the yard, or
that he could bring them back later.
¶12. At that point, Quinn’s “voice started to [elevate.]” Johnson told Quinn that he could
take Gray’s stuff or leave it, but that he needed to “get out from down here.” Johnson walked
from his kitchen window to his sliding doors to see if Quinn was leaving, but “then shots
went to firing.” Quinn “came out the back of his car and just turned around and just went
to opening fire” with a shotgun, and he hit Johnson in the side. Johnson identified Quinn
as the man who fired the shots.
¶13. Gray started screaming, and she and Johnson moved to the master bedroom. Johnson
testified that the “shots were steady going off . . . He [Quinn] was still shooting up in the
house. Shots was just – just constantly going.” Gray tried to get Johnson to hide in the
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shower with her, but he told her that he had to get out and get help.4 Johnson crawled out the
master bathroom window, ran to a neighbor’s house, and called 911. He continued to hear
shots as he was crawling out the window, and he heard more shots after he got 911 on the
line. While Johnson was on the 911 call, the dispatcher informed him that another call had
come in, and he recognized that number as belonging to a prepaid cell phone that he owned.5
¶14. The jury then heard testimony from the Oktibbeha County 911 director, and the State
played both 911 calls in open court and provided the jury with transcripts of the calls.6 Dr.
Adele Lewis performed Gray’s autopsy, and she testified that Gray had shotgun wounds to
her head and her torso, as well as a handgun wound to her head. Dr. Lewis testified that any
of the three wounds would have been fatal, and she determined that Gray’s cause of death
was “multiple ballistic wounds.”
¶15. Deputy Andrew Fountain testified that he responded to the 911 call that morning. As
he and a couple of other officers proceeded toward Johnson’s trailer, they saw a small car
coming toward them. The lead officer radioed that the driver was the person they were
looking for, so they stopped their cars to block his path. Quinn got out of his car with a
shotgun, went behind the car, and shot himself in the face. The officers secured the shotgun
and procured medical help for Quinn.
4Johnson testified that he could not find either of his cell phones. 5This call captured what was going on inside the trailer, with the sounds of shots being fired and Gray moaning. 6Quinn’s counsel previously had objected (outside the presence of the jury) to the introduction of the 911 call from the prepaid cell phone, under Mississippi Rule of Evidence 403. But the trial judge denied Quinn’s motion and held that the call was admissible. 6
¶16. Crime-scene technician Robert Elmore recovered several shotgun shells and at least
one 9 mm shell casing from the crime scene. Elmore also recovered a jammed 9 mm
semiautomatic pistol from Quinn’s car, and other officers previously had recovered Quinn’s
semiautomatic shotgun. Elmore testified that another officer recovered seven “live” 12
gauge shotgun rounds and one “live” 9 mm round from Quinn’s pants. Mississippi Crime
Laboratory employee Starks Hathcock testified that he positively had matched ten of the
recovered shotgun shell casings to Quinn’s shotgun. And Hathcock also was able to match
the 9 mm shell casing found in the shower to Quinn’s 9mm pistol, as well as the 9mm
projectile recovered from Gray’s face.
¶17. Quinn moved for a directed verdict after the State’s case-in-chief, which the trial
judge denied. Quinn called two witnesses in his defense, and the State offered one rebuttal
witness before finally resting. The trial court instructed the jury on capital murder, first
degree murder, and heat-of-passion manslaughter. The jury found Quinn guilty of capital
murder, and the judge sentenced him to life in prison, without the possibility of parole. The
trial judge denied Quinn’s post-trial motion, and he now appeals, arguing (1) that the jury
was “incompletely instructed on the elements of the crime,” and (2) that he received
ineffective assistance of counsel.
DISCUSSION
1. The jury was properly instructed.
¶18. This Court reviews the grant or denial of proposed jury instructions for an abuse of
discretion. Victory v. State, 83 So. 3d 370, 373 (Miss. 2012). “No one instruction should
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be singled out.” Id. This Court reviews jury instructions as a whole to determine if any error
occurred. Id. ‘“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. (citations omitted). In short, ‘“if the
instructions fairly announce the law of the case and create no injustice, no reversible error
will be found.”’ Id. (citations omitted).
¶19. Here, Instruction D-1b provided, in pertinent part:
The Court instructs the Jury that the Defendant, Archie Quinn, has been charged with the offense of Capital Murder.
If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about September 28, 2008 in Oktibbeha County, Mississippi;
2. That Stacy Gray was a human being; and
3. That with or without any deliberate design to effect death, without authority of law and not in necessary self defense, the Defendant, Archie Quinn, did kill Stacy Gray;
4. While the Defendant, Archie Quinn, was engaged in the commission of the crime of burglary of a dwelling;
then you shall find the Defendant, Archie Quinn, guilty as charged.
If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find the Defendant, Archie Quinn, not guilty of Capital Murder.
And Instruction S-3A provided:
The Court instructs the Jury that Burglary, as mentioned in these instructions, means to unlawfully, willfully, feloniously, and burglariously break and enter
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the dwelling house of another person with the intent to commit a crime, to wit: an assault.
¶20. Quinn argues that Instruction S-3A “simply defines the general statutory elements of
the crime of burglary[.]” He argues that the jury “was only vaguely informed that the crime
Quinn allegedly intended to commit was ‘assault,’” and that the “jury was not apprised of the
elements of the crime of assault, much less whether the specific assault allegedly intended
was simple assault or aggravated assault.” Quinn argues further that the jury was not
instructed as to who was the alleged victim of the assault, and that Instruction S-3A did not
inform the jury that it must find each element of burglary beyond a reasonable doubt.
¶21. First, because Quinn did not object to Instruction S-3A at trial, we review this claim
under plain error,7 which “requires the finding of not only an error, but one that resulted in
a ‘miscarriage of justice’ affecting the defendant’s fundamental rights.” Windless v. State,
2015 WL 5730744, at *4 (Miss. Oct. 1, 2015). And because we find that no error occurred
here, it follows that there is no plain error. We also note that Quinn failed to raise the jury
instruction issue in his post-trial motion, which is another procedural bar to Quinn raising
7The first burglary instruction offered by the State, Instruction S-3, was identical to Instruction S-3A, with the exception of the phrase “to wit: an assault.” When asked by the trial judge about Instruction S-3, Quinn said he had no objection. It was only after the trial judge raised concern about the lack of a specific intended crime in S-3 that the instruction was amended and proffered as S-3A. Quinn likewise did not object to S-3A when given the opportunity to do so. 9
that argument for the first time here.8 But because this is a capital-murder case, we address
the merits of his argument.
¶22. The elements of burglary are (1) “breaking and entering the dwelling house or inner
door of such dwelling house of another”; and (2) “with intent to commit some crime therein.”
Miss. Code Ann. § 97-17-23(1) (Rev. 2014). But this Court has explained that the elements
of the intended crime are not elements of burglary. See Daniels v. State, 107 So. 3d 961, 964
(Miss. 2013). As such, the State is not “required to prove each element of the ‘intended
crime’ with the same particularity as is required when a defendant is charged only with the
crime intended.” Newburn v. State, 205 So. 2d 260, 266 (Miss. 1967). In short, only the
intent to “commit some crime, be it a felony or a misdemeanor, is . . . an element of the crime
of burglary.” Booker v. State, 716 So. 2d 1064, 1068 (Miss. 1998). And “[o]nly the intent
need be proven to establish the second element of the crime of burglary.” Moore v. State,
344 So. 2d 731, 735 (Miss. 1977).
¶23. Recently, in Windless, this Court addressed an argument very similar to Quinn’s
argument here. There, Windless argued that the trial judge failed to instruct the jury on the
elements of larceny as the “underlying offense” of his burglary. Windless, 2015 WL
5730744, at *2. In dismissing that argument, this Court said:
[We have] held that larceny is commonly understood to connote stealing or theft. Conner v. State, 138 So. 3d 143, 150 (Miss. 2014) (citing Commonwealth v. Lawrence, 11 Mass. App. Ct. 990, 418 N.E.2d 629, 631 (1981)). The State submitted sufficient evidence for the jury to find that
8See, e.g., Watts v. State, 492 So. 2d 1281, 1290-91 (Miss. 1986) (“Furthermore, Watts is procedurally barred from raising this issue on appeal, since it was not listed as grounds in his motion for j.n.o.v. or a new trial.”) (citation omitted). 10
Windless feloniously broke into and entered the victim’s house with the intent to steal. See Butler v. State, 217 So. 2d 3, 4 (Miss.1968) (“Criminal intent may be proved by circumstantial evidence, and may be inferred from the time and the manner in which the entry was made, and the conduct of the accused after the entry.”). The fact that there are two statutory categories of larceny is of no import, as the burglary statute simply requires the intent to commit “some crime therein [.]” Miss. Code Ann. § 97–17–23(1) (Rev. 2014). See Ashley v. State, 538 So. 2d 1181, 1184 (Miss. 1989) (“[T]he word ‘crime’ in our burglary statutes includes misdemeanors as well as felonies.”).
Windless, 2015 WL 5730744, at *4.
¶24. We find that Windless controls here. Our caselaw holds that only the intent to commit
some crime need be proven in order to establish the second element of burglary—the State
need not also prove the elements of that intended crime. As such, the trial judge sufficiently
instructed the jury here, as it was instructed that burglary in Quinn’s case meant feloniously
entering the dwelling house of another with the intent to commit an assault—facts that the
trial judge said the jury must find beyond a reasonable doubt.
¶25. And just as “larceny” is commonly understood to mean stealing, we find that “assault”
is commonly understood to mean causing or attempting to cause bodily injury to another.
And as in Windless, the State presented sufficient evidence for the jury to find that Quinn
feloniously broke into Johnson’s house with the intent to assault. And also as in Windless,
“[t]he fact that there are two statutory categories of [assault] is of no import, as the burglary
statute simply requires the intent to commit ‘“some crime therein[.]”’ Id. at *4. “Simply
put,” as this Court said in Windless, reversal is not mandated here, “because the elements of
[assault] are not elements of the crime with which [Quinn] was charged.” Id. at *3.

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2. Quinn’s ineffective-assistance-of-counsel claims are not appropriate for review on direct appeal.
¶26. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court employs the two-pronged test
announced by the United States Supreme Court in Strickland to determine if counsel has
been ineffective. Ransom v. State, 919 So. 2d 887, 889 (Miss. 2005).
¶27. A defendant first must demonstrate that his counsel’s performance was deficient. Id.
at 889. And in order to demonstrate deficiency, a defendant must overcome the “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘“might be considered sound trial strategy.’” Stringer
v. State, 454 So. 2d 468, 477 (Miss. 1984). Secondly, a defendant must show that, but for
his counsel’s deficient performance, there is a “reasonable probability” that the result of the
proceeding would have been different. Foster v. State, 687 So. 2d 1124, 1130 (Miss. 1996).
¶28. “Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought
during post-conviction proceedings.” Archer v. State, 986 So. 2d 951, 955 (Miss. 2008).
“This is because during direct appeals the Court is limited to the trial court record in its
review of the claim, and there may be instances in which insufficient evidence exists within
the record to address the claim adequately.” Id. (emphasis added). “In such a case, the
appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue
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through a petition for post-conviction relief.” Id. (emphasis added). This Court may,
however, address the merits of an ineffective-assistance-of-counsel claim on direct appeal
if ‘“the record affirmatively shows ineffectiveness of constitutional dimensions[.]”’ Taylor
v. State, 167 So. 3d 1143, 1146 (Miss. 2015) (citation omitted).
¶29. Here, Quinn argues that his trial counsel was ineffective in four specific ways: (1) for
failing to challenge Quinn’s competency at the July 22, 2014, competency hearing; (2) for
failing to request a M’Naghten 9 evaluation in furtherance of an insanity defense; (3) for
failing to object to Quinn’s defective indictment, which failed to specify whether the State
alleged the “underlying crime” to burglary to be simple assault or aggravated assault; and (4)
for failing to object to the prosecutor playing Gray’s 911 recording again during closing
arguments. We find that “insufficient evidence exists” within this record to address Quinn’s
ineffectiveness claim adequately, so we therefore dismiss that argument without prejudice,
so that Quinn may bring it in a petition for post-conviction relief, should he so choose.
CONCLUSION
¶30. We find that the trial judge properly instructed the jury and therefore affirm on that
issue. We also find that this record does not “affirmatively show” ineffective assistance of
counsel.

Outcome: As such, we affirm Quinn’s conviction, but we dismiss his ineffective-assistance of-counsel claim without prejudice to his right to raise it in a proper petition for post conviction relief.

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