Baron L. Easter v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-KA-01344-SCT
BARON L. EASTER
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 7/18/2002
TRIAL JUDGE: HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES A. WILLIAMS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY: BILBO MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/06/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., EASLEY AND DICKINSON, JJ.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1. On November 15, 2001, Baron L. Easter (Easter) was indicted by a Lauderdale
County grand jury for the sell or transfer of 20.25 grams of cocaine to Agent Neil Grogan
(Agent Grogan) of the Mississippi Bureau of Narcotics (MBN) and an unnamed confidential
informant for $800, within 1,500 feet of a public park. The indictment also alleged that
Easter had two prior convictions on felony drug charges and was therefore subject to
enhanced sentencing under Miss. Code Ann. § 41-29-147 as a habitual offender under Miss.
Code Ann. § 99-19-81 (Rev. 2000). Attorney J. Steward Parrish (Attorney Parrish) was
appointed to represent Easter.
¶2. Easter's trial was held on June 17 and 18, 2002, before Circuit Court Judge Robert W.
Bailey. Easter had previously been granted a continuance on March 26, 2002, to allow him
time to retain his own counsel. Before trial on June 17, 2002, Easter asked the trial court to
allow him to represent himself. The trial court denied the request for a continuance based
on the previous continuance. Easter agreed to allow Attorney Parrish to represent him. The
trial court further expressed concern as to Easter's request to represent himself due to the
extensive sentence he could face because of the enhancements sought by the State.
¶3. Due to the difficulty in representing Easter, the State and the defense, outside the
presence of the trial judge, conducted plea bargain negotiations on the record before trial on
June 17, 2002. The State's original plea offer was 20 years to serve as a habitual offender,
meaning day for day. Attorney Parrish got the State to amend the plea offer to 15 years
nonhabitual or 30 years with 17 suspended, 13 to serve and 5 years post-release supervision.
Attorney Parrish advised his client to take the offer of 15 years as a non-habitual offender.
Easter insisted on standing trial, rejecting his attorney's advice.
¶4. Easter stood trial, and the jury found Easter guilty of the sale of cocaine. Easter was
sentenced as a habitual offender based on his two previous separate felony convictions of
possession of cocaine on January 30, 1997, and delivery of marijuana on January 30, 1997.
The trial court dismissed the State's enhancement request for sale of cocaine within 1,500
feet of a park. Easter was sentenced to serve a term of 40 years in the custody of the
Mississippi Department of Corrections not to be reduced or suspended. The trial court
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ordered that Easter not be eligible for early release or probation in accordance with Miss.
Code Ann. § 99-19-81 as a habitual offender. Easter was further fined $5,000 and assessed
a $300 appearance bond fee, $100 crime lab fee and $248 court cost. Easter filed a motion
for J.N.O.V. or for a new trial which was denied by the trial court. Easter now appeals to
this Court.
FACTS
¶5. Agent Grogan testified that on May 22, 2001, he worked undercover with a
confidential informant, Chris Thompson (Thompson), in Lauderdale County, Mississippi,
to purchase cocaine from sellers in the area. Agents Allen Ward (Agent Ward) and James
Regan (Agent Regan) also worked with Thompson on May 22, 2001. Thompson had
previously been arrested for possession of cocaine, and he agreed to assist the MBN as a
confidential informant in a buy-bust sting operation to get his drug source.
¶6. Thompson telephoned Easter to purchase $800 worth of cocaine. The meeting place
was set at the Apple Dollar Store on Highway 19. Easter then telephoned Thompson back
and changed the location to McDonald's. Both telephone conversations were recorded.
Thompson testified that he and Easter knew each other's cell phone numbers. Thompson
gave Easter's name to the MBN. Thompson had known Easter approximately a year and a
half. Thompson stated that they referred to each other as "B" for Baron and "C" for Chris.
Thompson testified he recognized and identified Easter's voice on the telephone. Agent
Grogan testified that he was present when Thompson telephoned Easter. Thompson testified
that the tape was an accurate and unaltered recording of the conversation. References to
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other transactions on the tape recordings were deleted based on the defense's objection
before the tape was admitted. After the deletions, the defense did not object to the tape.
¶7. Before going to the exchange, Thompson and his vehicle were searched by one of the
agents to verify that there were no drugs present. Thompson wore a wire transmitter to the
buy.
¶8. Agent Grogan rode with Thompson to the buy. Agents Ward and Regan provided
back-up. When Thompson and Agent Grogan arrived at the McDonald's parking lot,
Thompson spotted Easter's vehicle next door in the parking lot at Trucker's Supply.
Thompson pulled over to Trucker's Supply and parked next to Easter's vehicle, driver's side
to driver's side. Agent Grogan gave Thompson the $800 to buy the cocaine. Thompson
gave the money to Easter. Easter threw a zip-lock bag, containing aluminum foil wrapped
around the cocaine, wrapped in a camouflage bandana. Thompson handed the cocaine to
Agent Grogan.
¶9. Agent Grogan testified he was approximately 6 or 7 feet from Easter, and it was about
6:25 p.m. and still daylight outside. Agent Grogan identified Easter at trial as sitting at the
counsel table. Thompson also testified that he had no doubt that it was Easter who was at
the exchange. Thompson also identified Easter in the courtroom.
¶10. Brandi Goodman, with the Mississippi Crime Laboratory in Meridian, testified that
her testing on the substance determined that the State's exhibit 2 contained cocaine with a
total weight of 20.25 grams. Easter did not testify at trial, choosing to exercise his right to
remain silent.
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¶11. At the conclusion of the State's case, Easter made a motion for directed verdict that
the State did not meet its prima facie burden as to the sale of cocaine or sale within 1,500
feet of a park. The trial court denied the motion as to the sale, but it sustained Easter's
motion for directed verdict as to the sale within 1,500 feet of the park.
¶12. Easter was found guilty and was sentenced to an enhanced sentence as a habitual
offender to 40 years in the custody of the Mississippi Department of Corrections. The trial
court denied Easter's motion for J.N.O.V. or new trial. Easter now appeals to this Court
raising the following issues:
I. Whether Easter was denied a fair trial as a result of the trial
court's comments.
II. Whether the trial court should have granted a mistrial.
III. Whether there was credible, substantial evidence to support the
jury's verdict.
IV. Whether the trial court violated Batson v. Kentucky.
V. Whether Easter received effective assistance of counsel.
LEGAL ANALYSIS
I. Trial Court's Comments
¶13. Easter argues that he was denied a fair trial based on comments made by the trial
court during voir dire; Agent Grogan's testimony; and Thompson's testimony.
¶14. In Thompson v. State, 468 So. 2d 852, 853-54 (Miss. 1985), quoting Green v. State,
97 Miss. 834, 53 So. 2d 415 (1910), this Court stated:
'It is a matter of common knowledge that jurors, as well as officers in
attendance upon court, are very susceptible to the influence of the judge. The
sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors
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watch closely his conduct, and give attention to his language, that they may,
if possible ascertain his leaning to one side or the other, which, if known, often
largely influences their verdict. He cannot be too careful and guarded in
language and conduct in the presence of the jury, to avoid prejudice to either
party.'
The Court further stated:
The great danger, particularly in a criminal case, is that the weight and dignity
of the court accompanies each question or comment, although not so intended
by the judge, and are very likely to be interpreted by the jury as the court's
approval of the witness and her testimony, thereby lending unity to it and thus
diverting the jurors' attention from their responsibility of deciding the case
from the evidence, untainted, as heard by them from the witness stand.
Thompson, 468 So.2d at 854.
A. Voir Dire
¶15. Easter contends that the trial court denied him a fair trial and unduly prejudiced his
case by commenting during voir dire of the prospective jury panel as to "presumption of
innocence." Easter alleges that this comment corroborated the description stated on close
by the State, enhancing the State's position with the jury. In order to examine the alleged
reversible error, it is necessary to see the trial court's remarks. The record reflects the
following statement by the trial court:
Now, this is a criminal case. It's not a civil case. There are certain general
concepts that apply in all criminal cases in our judicial system. The first
concept deals with a term that you will hear used throughout the trial. You
will also see it used in the written instructions on the law that will be given to
you at the conclusion of the trial by -- that will be given by the Court, and that
term is called the "presumption of innocence." That is, every defendant is
presumed to be innocent until they are convicted by a jury. And I make this
statement to you because a lot of times, attorneys during voir dire before
you've heard any evidence or received any testimony will ask you, how many
of you think my client is or could be guilty because they're here on trial? And
my answer to that is every defendant at this stage of the proceedings are
presumed to be innocent until they're convicted by a jury. Obviously, you
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haven't heard any testimony, so technically if the trial was to stop now, you
would be required to find every defendant not guilty.
¶16. This Court finds that the trial court's opening remarks on voir dire did not constitute
reversible error. Easter's argument is without merit. Moreover, the record reflects that the
defense never offered a contemporaneous objection at trial nor raised the issue with the trial
court in his motion for a new trial. In Johnson v. Gray, 859 So. 2d 1006, 1015 (Miss. 2003),
this Court stated:
There is a general requirement that objections must be raised at the trial level.
In re S.A.M., 826 So. 2d 1266, 1277 (Miss. 2002); In re V.R., 725 So. 2d 241,
245 (Miss. 1998). See Riley v. Doemer, 677 So.2d at 743 n. 3; Smith v. State,
572 So. 2d 847, 848 (Miss. 1990); Burney v. State, 515 So. 2d 1154, 1156-57
(Miss. 1987). This Court has stated that "[i]f no contemporaneous objection
is made, the error, if any, is waived." Dorrough v. Wilkes, 817 So. 2d 567,
577 (Miss. 2002) (quoting Walker v. State, 671 So. 2d 581, 597 (Miss. 1995);
Hill v. State, 432 So. 2d 427, 439 (Miss. 1983)).
Therefore, we find that this issue is without merit.
B. Agent Grogan's Testimony
¶17. Easter argues that the trial court erred in allowing Agent Grogan to testify as to
whether it was standard operating procedure for people involved in a drug transaction to
disguise what they were discussing. Easter claims that the trial court allowed Agent Grogan
to supply an expert opinion without being qualified as an expert. The record reflects the
following exchange:
Mr. Davis [State]: Agent Grogan, were you present when the
confidential informant placed a phone call to the
defendant on this date?
Agent Grogan: Yes, sir.
State: Were you able to listen to the conversation that
ensued between them?
Agent Grogan: Yes, sir.
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State: Now, when these, how many of these types of
conversations have you witnessed in law
enforcement would you say?
Agent Grogan: Probably hundreds I imagine.
State: All right. Is it normal or is it kind of standard
operating procedure for people involved in that to
kind of disguise what they're talking about, or do
they come out and say, I will sell you two ounces
of cocaine?
Mr. Parrish [Defense]: Your, Honor, at this time, we're going to object.
This is calling for an expert opinion, and he hasn't
been tendered as an expert at all.
State: Judge, he can give his personal opinion based on
his experience as a law enforcement officer.
The Court: All right. Well, I'll let you voir dire him on his
qualifications if you'd like to do that now.
Defense: Your, Honor, we'd object. He has not been
disclosed to the defendants as an expert witness.
He's been disclosed to us as a fact witness. If he's
going to start testifying as to his opinion about
how drug deals -- based upon his training and
experience, then he's getting into the expert range,
and that's what we're objecting on because we're
not able to prepare to rebut that.
State: Your Honor, if I may, a lay witness can -- a fact
witness can give their opinion.
The Court: I think this officer can give an opinion based
upon his experience. He's worked for -- been
an agent for MBN for over four years.
Defense: It's two and a half, Judge, but --
The Court: Two and a half years.
Defense: We would object to him being able to give
opinion testimony other than to -- observations
that he -- as he observed whatever facts he's going
to testify about.
The Court: All right. Well, your objection's noted. It will be
overruled. He'll be subject to cross-examination.
State: Thank you, Judge.
State: During these types of conversations between
somebody wanted to purchase and somebody
wanting to see narcotics, it is standard -- the
normal course of business, I guess, code words or
synonyms to be used rather than people to say, I
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want one ounce of cocaine, and the seller to say,
I will sell you one ounce of cocaine?
Agent Grogan: Yes, sir.
(emphasis added).
¶18. In overruling the defense's objection, the trial court determined that Agent Grogan
was able to render his opinion based on his experience as a MBN agent. The Mississippi
Court of Appeals was faced with a factually similar situation. In Jones v. State, 754 So. 2d
476, 484 (Miss. Ct. App. 1999), the defense asserted that Detective Steve Renfroe presented
expert testimony without being qualified as an expert. Detective Renfroe's testimony
explained how he determined what evidence was relevant and what should be recovered
from a crime scene. Id. Detective Renfroe also provided testimony explaining why the
scales, the walkie-talkies and the metal detector all had evidentiary value in a narcotics
arrest. Id. The court found "that Detective Renfroe did not give an opinion as contemplated
in Mississippi Rule of Evidence 702. Instead, he answered questions based on his
experiences as a narcotics officer." Id.
¶19. This Court finds that the trial court did not commit reversible error in allowing Agent
Grogan to testify, based on his experience as a narcotics agent for the MBN transactions, that
it was not uncommon for there to be use of code to disguise the drug transaction. This issue
is without merit.
C. Thompson's Testimony
¶20. Easter contends that the trial court committed reversible error by stating to Thompson
during his direct examination by the State, "Let's just get on to this transaction, please." It
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is necessary to examine the comment in the proper context. The record reflects the following
exchange:
State: Chris, if we can back up a little bit. But how did all this come
about? How did you know you were supposed to meet him?
Thompson: I had talked to him on the phone.
State: Okay. When did you talk to him?
Thompson: Around lunch.
State: Okay. And who was present when you made that phone call?
Thompson: Neil Grogan and Alan Ward.
State: And do you remember where you were?
Thompson: At the MBN office.
State: And during that conversation around noon, tell us a little be
about what happened, what the conversation was about.
Thompson: He said he couldn't -- wasn't able to get in touch with me
and my phone had been messed up. He asked about some
other transactions that we –
Defense: Objection. We need to be heard outside the presence of the
jury.
The Court: All right. Sustained. Let's just get on to this transaction,
please.
State: Chris, just dealing with this particular transaction, did you and
Mr. Easter agree to meet somewhere?
Thompson: Yes.
State: And where was that?
Thompson: At the Apple store on Highway 19 South.
State: And did you -- what did you talk about doing at the Apple
store?
Thompson: Trading some money for cocaine.
(emphasis added).
¶21. Clearly, Thompson was already testifying as to the transaction in question that
involved Thompson working with MBN as a confidential informant to arrange an exchange
with Easter. The trial court's comment was an immediate response to the defense's objection
to Thompson discussing other transactions he had with Easter. The trial court's comment
was made to instruct Thompson to testify only as to the transaction in question. Obviously,
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the jury was aware that the State had alleged that a transaction of cocaine for money had
occurred. The trial court only acted to limit testimony to one transaction in question. The
trial court did not offer a finding that a drug deal had definitely occurred. We find that this
issue is without merit.
¶22. Next, Easter contends that the trial court committed reversible error when it
commented on the quality of the tape recording of the telephone conversation. The trial
court, outside the presence of the jury, played the tape recording of the two telephone
conversations before allowing the tape to be played to the jury. The record reflects that the
defense's objection to the tape of the telephone conversation was to exclude the introductory
part of the recording as "the first part of the tape is going to get into 404 (b) activity."1
¶23. The trial court ordered the deletion of the introduction part of the conversation before
the tapes could be played to the jury. The trial court also commented on the poor quality of
the tape outside the presence of the jury. The trial court found that the tape was offered to
show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident, and under M.R.E. 403, the tape was certainly relevant and more
probative than prejudicial.
1
M.R.E. 404 (b) provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
11
¶24. It is after the conference outside the presence of the jury that the alleged error
occurred when the jury was brought back into the courtroom and Thompson resumed his
testimony. The record reflects the following transpired:
The Court: Mr. White, you want to bring the jury in, please.
(THE JURY RETURNED TO THE COURTROOM AT 10:05
A.M., AND THE PROCEEDINGS RESUMED AS
FOLLOWS, TO-WIT:)
The Court: Ms. Heidelberg [State], you may proceed.
State: Yes, sir. Judge, at this time, we'd like to play the tape for the
jury, please....
The Court: Yes, sir.
(AUDIOTAPE BEING PLAYED FOR THE JURY.)
State: Okay. Chris, let me ask you just a few questions about that.
What exactly was that that the jury just heard?
Thompson: It's a conversation between me and Baron.
State: Okay. And I notice that you didn't call him Baron. What did
you call him when you placed the phone call?
Thompson: "B."
State: Okay. And you didn't identify yourself -- well, how did you
identify yourself?
Thompson: As "C."
State: Okay. So what does "B" stand for?
Thompson: Baron.
State: And "C" stands for?
Thompson: Chris.
State: Okay. You didn't hold a conversation with him -- a drug-related
conversation with him during that particular phone call, and
why not? What happened?
Thompson: He wanted to call me back. For whatever reason I don't know.
State: Okay. And did he call you back?
Thompson: Yes...
State: Judge, if we may proceed with the telephone call that was
placed back to Chris.
The Court: Okay.
(AUDIOTAPE BEING PLAYED FOR THE JURY.)
State: And, Chris, during that conversation when Mr. Easter called
you back, did you all discuss -- well, what did you discuss at
that particular time?
Defense: Objection, your Honor. Under the Best Evidence Rule, the tape
speaks for itself. For this witness to then interpret his
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understanding of the tape is improper bolstering. They've
entered this into evidence, and the jury's free to examine it at
their leisure and give it whatever weight and credibility they
determine, but this is improper.
The Court: All right. Your objection's going to be overruled. The quality
is not that great. This witness will be subject to cross-
examination. He was part of the conversation, so I'll allow
you to ask him questions about the contents of that tape....
The Court: You may answer the question.
(emphasis added).
¶25. In Stromas v. State, 618 So. 2d 116, 119 (Miss. 1993), this Court stated:
Certainly a tape recording of the alleged drug transaction is relevant. See
Miss. R. Evid. 401. The tape's admission makes the drug transaction more
likely to have taken place. See Butler, 592 So.2d at 984.
¶26. Tape recordings may be received into evidence as long as the proper predicate has
been established. Middlebrook v. State, 555 So. 2d 1009, 1012 (Miss. 1990). "The mere fact
that portions of a recording are unintelligible does not by itself render the recording
inadmissible." Middlebrook, 555 So.2d at 1012; Frank v. State, 749 So. 2d 1241, 1243
(Miss. Ct. App. 1999). See also Oatis v. State, 726 So. 2d 1230, 1235 (Miss. Ct. App. 1998).
Transcripts provided to the jury to follow along with the tape recording have also been
allowed. See Frank, 749 So.2d at 1243 (transcripts can be used to assist the jury in
determining who is speaking and discerning what is being said).
¶27. This Court finds that the trial court's comment did not indicate its leaning toward the
State's witness nor was it likely to influence the jury's verdict. This issue is without merit.
II. Mistrial
¶28. On appeal, Easter contends that the trial court should have granted a mistrial based
on Thompson's testimony that mentioned other transactions. The State did not question
13
Thompson regarding any other transactions to prompt Thompson's response. When
Thompson state, "He asked about some other transactions...," the trial court sustained the
defense's objection. Thompson did not state any details regarding other transactions. This
was fully discussed in the previous issue. In this issue, Easter approaches the issue from the
standpoint of whether a mistrial was appropriate based on the comment.
¶29. In Caston v. State, 823 So. 2d 473, 492 (Miss. 2002), this Court set out the standard
of review for a motion for mistrial as follows:
“Whether to grant a motion for mistrial is within the sound discretion of the
trial court. The standard of review for denial of a motion for mistrial is abuse
of discretion.” Pulphus v. State, 782 So. 2d 1220, 1222 (Miss. 2001)(citations
omitted); Spann v. State, 771 So. 2d 883, 889 (Miss.2000); Johnson v. State,
666 So. 2d 784, 794 (Miss. 1995); Hoops v. State, 681 So. 2d 521 (Miss. 1996).
“The failure of the court to grant a motion for mistrial will not be overturned
on appeal unless the trial court abused it discretion.” Bass v. State, 597 So. 2d
182, 191 (Miss. 1992).
Indeed, the Uniform Circuit and County Court Rule 3.12 concerning mistrials states:
Upon motion of any party, the court may declare a mistrial if there occurs
during the trial, either inside or outside the courtroom, misconduct by the
party, the party's attorneys, or someone acting at the behest of the party or the
party's attorney, resulting in substantial and irreparable prejudice to the
movant's case.
¶30. Upon motion of a party or its own motion, the court may declare a mistrial if:
1. The trial cannot proceed in conformity with law; or
2. It appears there is no reasonable probability of the jury's
agreement upon a verdict.
¶31. Besides sustaining the defense's objection, the trial court prepared and offered to grant
a limiting instruction to the jury. The defense refused the instruction as a strategic decision.
The record reflects:
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The Court: All right. Those will be given. I prepared another instruction.
There was some testimony during -- taken during Chris
Thompson's testimony. It was very limited that dealt with
maybe some prior transactions between Chris Thompson, the
C.I., and this defendant. There was an objection made. We
moved on. I sustained it, and nothing else was said about that.
In an abundance of caution, I'm offering C-8 at the bottom
which is a limiting instruction, under 404 (b) instruction if the
defendant wants it given. If you don't want me to give it, then
I will not give it. Mr. Parrish, what's your position on this?
Defense: Your Honor, based upon the Court's prompt action hearing the
objection, I think we would only be harmed by reminding the
jury of that, and I would ask the Court not to give it.
The Court: All right. Then I will not give it. It will be refused. All right.
That concludes the Court's instructions.
The defense did not renew any motion for a mistrial.
¶32. Here, the facts demonstrate that the trial court acted properly in accordance with our
holding in Smith v. State, 656 So. 2d 95, 100 (Miss. 1995). In Smith, this Court stated that
the trial court should grant a limiting instruction if M.R.E. 404 (b) evidence is admitted and
passes the M.R.E. 403 hurdle, unless the party objecting to the evidence refuses to allow the
court to give the limiting instruction. Id. In Smith, the State argued that the defense should
be allowed the option to refuse the cautionary instruction to avoid further mention of the past
acts if they choose to do so. Id. at 99. The Court stated specifically:
We have promulgated M.R.E. 105 which clearly contemplates that restrictive
instructions be given upon request and as the Comment acknowledges, that in
the absence of a request, there is no error. M.R.E. 105 and Comment. We are
loath to reverse for plain error in the face of a rule so clear. We say for the
future, however, that wherever 404(b) evidence is offered and there is an
objection which is overruled, the objection shall be deemed an invocation of
the right to MRE 403 balancing analysis and a limiting instruction. The court
shall conduct an MRE analysis and, if the evidence passes that hurdle, give a
limiting instruction unless the party objecting to the evidence objects to giving
the limiting instruction.
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Id. at 100.
¶33. The Mississippi Court of Appeals held that the harmless error analysis is not
precluded when the trial court fails to give a required instruction even where M.R.E. 404 (b)
evidence was given. Lindsey v. State, 754 So. 2d 506, 515 (Miss. Ct. App. 1999).
Furthermore, Lindsey reiterates our holding in Smith, stating:
In support of his contention that the trial court's failure to give a cautionary
instruction warrants reversal, Lindsey cites Smith v. State, 656 So. 2d 95(Miss. 1995). We point out that Smith does not mandate a reversal for failure
of the trial judge to give a cautionary instruction even though we said as much
in Moss v. State, 727 So. 2d 720, 725 (Miss. Ct. App. 1998). As stated earlier
in this opinion, Smith does hold that once an objection is made to 404(b)
evidence, as was done here, the trial court should sua sponte, give a limiting
instruction unless objection is registered by the defense.
Lindsey, 754 So.2d at 515.
¶34. It is a well-settled rule in this State that a mistrial is reserved for those instances where
the trial court cannot take any action which would correct improper occurrences inside or
outside the courtroom. Walker v. State, 671 So. 2d 581, 621 (Miss. 1995). "[T]rial judges
are peculiarly situated so as to decide (better and more logically than anyone else) when a
trial should be discontinued." Davis v. State, 530 So. 2d 694, 697 (Miss. 1988) (quoting
Schwarzauer v. State, 339 So. 2d 980, 982 (Miss. 1976)).
¶35. As the defense refused to allow the trial court to grant the limiting instruction and
based on the trial court immediately sustaining the defense's objection, this issue does not
merit reversal.
III. Denial of Directed Verdict
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¶36. In Jefferson v. State, 818 So. 2d 1099, 1110-11 (Miss. 2002), this Court held that the
standard of review for denials of motions for directed verdict, judgment notwithstanding the
verdict and a request for a peremptory instruction is the same. A directed verdict, judgment
notwithstanding a verdict and a request for peremptory instruction all challenge the legal
sufficiency of the evidence presented at trial. Id. "Since each requires consideration of the
evidence before the court when made, this Court properly reviews the ruling on the last
occasion the challenge was made in the trial court. This occurred when the Circuit Court
overruled [the] motion for JNOV." McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)
(citing Wetz v. State, 503 So. 2d 803, 807-08 (Miss. 1987)). See also Edwards v. State, 800
So. 2d 454, 462 (Miss. 2001) (The standard of review for a JNOV and a directed verdict are
the same and implicate the sufficiency of the evidence. All challenge the legal sufficiency
of the evidence. The appellate court properly reviews the ruling on the last occasion the
challenge was made in the trial court, when the Circuit Court overruled the JNOV.).
¶37. The trial court granted a directed verdict as to the sale within 1,500 feet of Bonita
Lakes Park. However, the trial court denied the motion for directed verdict as to the sale.
Easter argues that the trial court erred in denying his motion for directed verdict as to the sale
of cocaine. Easter contends that the State did not prove all allegations contained in the
indictment. Easter claims that the State did not prove that Easter sold cocaine to Agent
Grogan. The trial court denied the motion stating:
The Court: The jury is out. You may make your motion.
Defense: Your Honor, at this time, we'd make a motion for a directed
verdict of acquittal based primarily on two lacks of evidence.
The State hasn't reached their prima facie burden in showing
that Easter sold anything to Agent Neil Grogan. The testimony
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was that money was supplied to Grogan who then gave it to the
confidential informant who then handed it to Baron Easter, and
Baron Easter then either handed it or tossed it back into the
vehicle which landed in the informant's lap. In the indictment,
Mr. Easter was charged with selling to both of them, and there's
been no evidence, not even to a prima facie level that he sold or
delivered anything to Agent Grogan. Therefore, because the
State has to meet each and every element as they allege in the
indictment, then we're entitled to a directed verdict of acquittal.
Likewise, they have not proved any sale within 1500 feet of a
public park. There's been no testimony that Bonita Lakes is a
public park or that the sale took place within 1500 feet of that
public park.... But in the indictment, an element of this offense
and what the State has been telling the jury since opening
argument, since voir dire is that an element of this crime was
within 1500 feet of a public park. They made this an element of
the crime. They have produced no evidence. They haven't met
their burden, and we're entitled to a directed verdict of
acquittal....
State: Yes, sir. Judge, the 1500 feet is for enhancement purposes in
this. All it does is substantiate the sentence and make it a
doubling factor. Also, it is proper for the evidence -- the
indictment to conform to the evidence presented at trial which
is completely proper. There's no surprise to the defendant that
he was charged with selling cocaine. It would have been an
additional measure of defense to defend on those grounds; but
as for an acquittal, no, sir. The 1500 feet, we submit a prima
facie case has been proven that it is just right -- at trial, that the
park is within 1500 feet of the location of the sale. However, it
is for enhancements purposes only as to sentencing. That's its
only purpose. And along those lines, we have met our prima
facie case as to all elements contained in the indictment. If you
don't feel that we've proven 1500 feet, the indictment can
conform to the evidence presented at trial.
The Court: What about the evidence as to any cocaine being sold to Agent
Grogan?
State: Judge, it's sell or transfer approximately 20.25 grams. Now, the
-- I think the Supreme Court has been very broad in their
definition of a transfer, and because of this type of trade, the
drug trade, that they can deliver or transfer these narcotics
passing from person to person. It equivocates to a transfer. It
went to the confidential informant -- went to the informant and
then to Mr. Easter -- no, I'm sorry -- then to Agent Grogan.
18
The Court: I mean, I don't think it's a big deal. The sale was -- the money
was given from Grogan to the C.I. to the defendant, and the
defendant gave the dope from him to the C.I. who gave it to
then Agent Grogan, so I guess we'll take that up on instructions.
But motions on directed verdicts, the test that the Court uses is
all evidence that has been introduced by the State is to be
accepted as true together with all sound or reasonable inferences
that may be drawn from the evidence and to disregard evidence
favorable to the defendant. If there is sufficient evidence to
support the jury's verdict of guilty, then the motion for a
directed verdict must be denied. I'm going to grant it as to the
sale taking place within 1500 fee of a park even through it's in
the indictment. The Court will give an instruction on the
essential elements to sale of cocaine only and delete that part in
the instructions.
¶38. In McClain v. State, 625 So.2d at 778, this Court stated that when the sufficiency of
the evidence is challenged, the prosecution was entitled to have the evidence in support of
its case taken as true together with all reasonable inferences. Furthermore, this Court in Noe
v. State, 616 So. 2d 298, 302 (Miss. 1993), held that when the sufficiency of the evidence is
challenged the evidence favorable to the State must be accepted as true with all reasonable
inferences, disregarding evidence favorable to the defendant. The Court stated:
In judging the sufficiency of the evidence on a motion for directed verdict, or
request for peremptory instruction, the trial judge is required to accept as true
all of the evidence that is favorable to the state, including all reasonable
inferences that be drawn therefrom, and to disregard evidence favorable to the
defendant. Clemons v. State, 460 So. 2d 835 (Miss. 1984).
616 So.2d at 302.
¶39. In the case sub judice, Agent Grogan and Thompson identified Easter as the person
from whom they purchased the powder cocaine on May 22, 2001. They had no doubts that
this was the person from whom they purchased cocaine for $800. State's Exhibit 2 was
identified by Goodman as being 20.25 ounces of cocaine. Easter did not testify or present
19
any witnesses in his behalf. Both Agent Grogan and Thompson testified, corroborating each
other, that the cocaine in the cloth was passed from Easter to Thompson and from Thompson
to Agent Grogan, who then kept it in his custody and control until it could be scientifically
identified by appropriate test at the Mississippi Crime Laboratory. The evidence is legally
sufficient to support the sale of cocaine part of the indictment in this case. The trial judge
did not err in denying the motion for directed verdict as to the sale of cocaine. Accordingly,
this Court finds that this issue is without merit.
IV. Batson
¶40. Easter argues that the State's use of its peremptory challenges violated Batson v.
Kentucky, 476 U.S. 79, 85-86, 106 S. Ct. 1712, 1716-17, 90 L. Ed. 2d 69, 80 (1986). Easter
states in his brief that 10 of the 35 venire persons were black. The record reflects that the
petit jury was composed of 9 whites and 3 blacks.
¶41. On appeal, Easter takes issue with the State's line of questioning on voir dire that
inquired into whether any close friend or relative had a felony conviction. The State also
inquired as to misdemeanor convictions. The record reflects that the State's line of
questioning was to determine if any of the prospective jurors had any bias or hard feelings
against law enforcement or prosecutors. The State also asked the prospective jurors if any
of them had personally been victims of a crime and whether that experience would affect
their ability to be impartial.
20
¶42. On appeal, Easter focuses his argument on whether that the trial court should have
conducted a Batson hearing when the State struck Juror 11, Earma Grady.2 During voir dire,
Juror 11 had informed the trial court that one of her relatives had been convicted for murder
in another jurisdiction. The record reflects that the defense voiced no objection to the State's
use of a peremptory strike as to Juror 11. In fact, there was no objection to any of the State's
peremptory strikes. Likewise, there was no objection by the State to any of the defense's
peremptory strikes. The record provides:
The Court: All right. The State needs to submit a panel of 12 to the
defendant....
State: Strike 2, strike 5.
The Court: Wait a minute. 2 is S-1. 5 is S-2.
State: 8.
The Court: 8 is S-3.
State: 11. [Earma Grady]
The Court: 11 is S-4.
State: Accept through 17.
The Court: One, two, three, four, five, six, seven, eight, nine, ten, eleven
and twelve. All right. Mr. Parrish (Defense), you only have to
announce through Number 17.
Defense: Strike 3.
The Court: 3 will be D-1.
Defense: 7.
The Court: 7 will be D-2.
Defense: 9.
The Court: 9 will be D-3.
Defense: And 17.
The Court: 17 will be D-4. Eight jurors. We need --
State: Judge, about 18, I don't know if we anticipate this going to
Wednesday.
2
The record reflects that an exchange occurred between the State and Juror 11, Earma
Grady, where the State effectively apologized for having to ask the same questions more than once
to the same jury pool in drawing their juries and for requiring that the prospective jury pool spend
its day with them. The record is silent as to what reaction might have prompted the exchange.
However, this Court finds that this could have factored into the State's reason for exercising one of
its peremptory strikes on Juror 11.
21
The Court: All right. She's been excused for Wednesday.
Defense: Judge, I can't see it going until Wednesday, but out of an
abundance of caution, I don't mind.
The Court: Do y'all have any -- all right. I'll excuse her for cause. I don't
know that we're going to be through by Wednesday. We might
be. All right. We've got eight jurors. We need four more
starting with Juror Number 19. What says the State? State has
used three strikes -- four strikes.
State: Take the next four, Judge.
The Court: State takes 19, 20, 21 and 22. Mr. Parrish, the defendant has
used four strikes also.
Defense: We'll strike 19.
The Court: 19 will be the defendant's fifth strike.
Defense: And 21.
The Court: 21 will be the defendant's sixth and final strike, so that gives us
-- that puts 20 as the ninth juror and 22 as the tenth juror. Andy,
23 and 24?
State: One moment, please, Judge.
State: Strike 24, Judge.
The Court: 24 will be the State's fifth strike.
State: Accept 26.
The Court: You take 23 and 25?
State: 25 was struck for cause, wasn't she, Judge?
The Court: Yeah.
State: 23 and 26.
The Court: 23 and 26. All right. We need two alternates starting with 27
and 28. What says the State?
State: Strike 27.
The Court: All right. The State uses its alternate strike on 27. Steward, 28
and 29?
Defense: Judge, that's acceptable with us.
The Court: Okay. 28 will be the first alternate. 29 will be the second
alternate. All right. For the record, the jury will be composed
of Jurors Number 1, 4, 6, 10, 13, 14, 15, 16, 20, 22, 23, 26. The
first alternate will be 28. The second alternate will be 29. I'll go
out and announce the jury, give the jury some instructions,
swear in the bailiff. We'll hear opening statements, invoke the
rule before we do opening, and then we'll see where we are
timewise. Okay?
¶43. In Conner v. State, 632 So. 2d 1239, 1264 (Miss. 1993), the Court stated that failure
to object to the prosecution's use of peremptory strikes waived this issue on appeal:
22
We cannot address this issue because Conner never objected to the
prosecution's peremptory challenges. This has often held that a party waives
any and all claims regarding the composition of his jury if he fails to raise an
objection before the jury is sworn. See Shaw v. State, 540 So. 2d 26, 27 (Miss.
1989). Thomas v. State, 517 So. 2d 1285, 1827 (Miss. 1987).... The error if
any is precluded from review.
¶44. The line of questioning by the State was clearly not improper. Therefore, we are only
left to discuss the peremptory strikes in the record. Since there is no objection to the use of
the peremptory strikes or any record to review on appeal, this Court finds that this issue is
without merit.
V. Effective Assistance of Counsel
¶45. Easter argues that his trial counsel, Attorney Parrish, provided ineffective assistance
of counsel in representing him. The law regarding ineffective assistance of counsel is well
settled. We have stated that:
The benchmark for judging any claim of ineffectiveness [of counsel] 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, 2064,
80 L. Ed. 2d 674 (1984). The test is two pronged: The defendant must
demonstrate that his counsel's performance was deficient, and that the
deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Washington v. State, 620 So. 2d 966 (Miss.1993). 'This requires
showing that counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.'
Stringer v. State, 454 So. 2d 468, 477 (Miss.1984), citing Strickland v.
Washington, 466 U.S. at 687, 104 S.Ct. at 2064. 'In any case presenting an
ineffectiveness claim, the performance inquiry must be whether counsel's
assistance was reasonable considering all the circumstances.' Stringer at 477,
citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; State v. Tokman, 564
So. 2d 1339, 1343 (Miss.1990).
23
Judicial scrutiny of counsel's performance must be highly deferential. (citation
omitted) ... A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a 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 at 477; Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In
short, defense counsel is presumed competent. Johnson v. State, 476 So. 2d
1195, 1204 (Miss.1985); Washington v. State, 620 So. 2d 966 (Miss.1993).
Then, to determine the second prong of prejudice to the defense, the standard
is 'a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.' Mohr v. State, 584 So. 2d
426, 430 (Miss.1991). This means a 'probability sufficient to undermine the
confidence in the outcome.' Id. The question here is whether there is a
reasonable probability that, absent the errors, the sentencer--including an
appellate court, to the extent it independently reweighs the evidence--would
have concluded that the balance of the aggravating and mitigating
circumstances did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct.
at 2068.
There is no constitutional right then to errorless counsel. Cabello v. State, 524
So. 2d 313, 315 (Miss.1988); Mohr v. State, 584 So. 2d 426, 430 (Miss.1991)
(right to effective counsel does not entitle defendant to have an attorney who
makes no mistakes at trial; defendant just has right to have competent
counsel). If the post-conviction application fails on either of the Strickland
prongs, the proceedings end. Neal v. State, 525 So. 2d 1279, 1281
(Miss.1987); Mohr v. State, 584 So. 2d 426 (Miss.1991).
Foster v. State, 687 So. 2d 1124, 1129-30 (Miss. 1996).
A. Defense Counsel Statements
¶46. Easter takes issue with two statements made by Attorney Parrish at trial. First, Easter
alleges that during voir dire, Attorney Parrish instructed the prospective jury that it would
require the jury to find some "technicality" to find Easter not guilty. This is not accurate.
24
Not taking the statement out of context, the record reflects that Attorney Parrish actually
questioned the jury as follows:
Parrish: Does everybody on the panel understand that everything you
just heard right there wasn't evidence? The only evidence
you're going to hear in this case, the only evidence that you
could consider is the evidence that you hear from that witness
standing (indicating); not what I say, not what Vel or Andy
says. Does everybody understand that?
(NO RESPONSE)
Parrish: Does everybody understand that the State's burden is to prove
every element of the crime beyond a reasonable doubt; and by
that I mean, should they fail to prove one element even though
you find the other ones, does everybody understand that even
though that might be what we call a technicality, it would be
your duty as a juror to come back with a not guilty verdict?
Does anybody have a problem with technicalities in the law?
(NO RESPONSE)
Parrish: By your silence, I'm assuming that you understand that if one
part doesn't get proven, then it's not guilty even thought you
believe everything else?
(NO RESPONSE)
We find that the question taken as a whole and in the proper context did not instruct the jury
that it would take a "technicality" to find Easter not guilty as claimed on appeal. Therefore,
this statement did not constitute ineffective assistance of counsel.
¶47. Second, Easter alleges that Attorney Parrish lent credibility to the State's case by
stating in his first sentence on opening statement that, "Well, Mr. Davis pretty much laid out
the facts as I understand them from discovery." Again, placing the statement back in the
proper context of the complete opening statement, Attorney Parrish's clearly does not
concede Easter's guilt. Attorney Parrish's opening statement emphasized that there were
conflicts in the evidence and a lack of evidence that would create reasonable doubt. In order
25
to review the statement in the proper context, the record reflects that Attorney Parrish's
complete opening statement was as follows:
Well, Mr. Davis pretty much laid out the facts as I understand them
from discovery. That still doesn't mean that they have proven anything yet.
I anticipate when the evidence is done and the Judge instructs you on the law,
he'll talk to you about reasonable doubt, and he's going to tell you that
reasonable doubt can arise from lack of evidence. It can arise from a conflict
of evidence.
Now, like the Judge said, I can't predict what's going to happen in this
case. We don't have depositions in criminal cases in Mississippi, so I don't
know exactly how the testimony is going to be developed from the witness
stand, but I anticipate there's going to be some conflict in the evidence; that
one person's going to say, you know, it was black, and the other person is
going to say that is was white. One person is going to say that is was one
thing, and another person is going to say that's another thing. That's the
conflict in the evidence, and that -- if you're looking for it and you see, it can
give rise to reasonable doubt.
Again, there's going to be, I believe, a lack of evidence. You're going
to hear about this tape of this alleged sale, and we've listened to this tape
today. It's about eight seconds long, and you're going to have the opportunity
to hear it. What you're not going to hear is any conversation of saying, Here's
$800; here's three-quarters of an ounce of cocaine. That's not going to happen.
You're going to hear two voices for about eight seconds; one of them saying,
Hey, how you doing? The other one saying, I'm good; how you doing? Okay.
See you later. That's it.
Now, the primary proof that the State's going to be using I anticipate is
going to be the testimony of this Thompson boy. Okay? And I anticipate that
his testimony is going to be developed perhaps on direct but for certain on
cross-examination by me talking about how he got to where he was working
as a snitch for the cops. And the fact of the matter is he's the drug dealer.
Okay? He's the drug dealer. He got caught....
And he's going to testify about his illegal activities and how he got
arrested; and in turn for getting a lenient sentence, he worked off -- okay -- he
worked off his -- some of his punishment. And part of working that off was
to make sure that this man (indicating) was charged with this crime.
Now, like I said, I don't -- I can't anticipate everything that's going to
happen, but I can tell you two things based upon trying cases for several years;
that is, there's going to be conflict. There's no doubt about it. There's going
to be a lack of evidence. The State's already admitted -- those surveillance
agents, the guys that were surveilling him didn't see what happened. There's
no video. There's no money. There's no fingerprints. What you've got is a
26
convicted felon and a drug agent who saw Mr. Easter for the first time that
day, an unidentified black man; so we've already got at least one other suspect
that was sitting in the truck. We don't know who that was. We don't even
know that Baron Easter was there. He's just charged with being there. That's
what I'm telling you, conflict and lack of evidence. And when it's over, there's
reasonable doubt. And if there's reasonable doubt, by you oath, you must
acquit. Thank you.
Clearly, the opening statement focused on reasonable doubt and raised possible conflicts and
questions in the evidence. Again, this Court finds that taking the statement in the proper
context and reviewing the complete opening statement, the statement did not constitute
ineffective assistance of counsel.
B. Lack of Objection
¶48. Easter also contends that the defense counsel failed to aggressively defend him at
trial. First, Easter alleges that Agent Grogan was allowed to give hearsay from Thompson
that Easter was his drug source. The record reflects that following exchange:
State: [W]ere you working with MBN... in an undercover
operation on May 22nd, 2001?
Agent Grogan: Yes, sir.
State: And what other officers were involved with that
operation?
Agent Grogan: Agents Alan Ward and James Reagan.
State: Who else was involved with that operation?
Agent Grogan: The C.I.
State: And who was that?
Agent Grogan: Chris Thompson.
State: And what was the plan for that day?
Agent Grogan: We contacted an individual.
State: Who was the individual?
Agent Grogan: Baron Easter. He was going to sell us an ounce of
powder cocaine for $800.
State: All right. Who made this call?
Agent Grogan: Chris Thompson did.
State: Okay. Now, can you tell the jury why -- why Chris was
working for you, Neil?
27
Agent Grogan: Chris has been arrested earlier that month on a drug
charge, and he was going to help us get his source.
¶49. In his testimony Thompson confirmed that he supplied Easter's name to the MBN to
set up a sting. The record reflects the following:
State: [O]n or about May 22nd, 2001, were you involved with the
Mississippi Bureau of Narcotics?
Thompson: Yes....
State: Okay. And I guess because of your -- Well, why were you --
how would you be able to do that? Why were you able to get in
to get other drugs?
Thompson: Because I was selling it....
State: What, if any, plan did you have on May 22nd that involved the
Mississippi Bureau of Narcotics?
Thompson: I was supposed to get in contact with Baron Easter and set up a
buy.
State: Okay. And when you say you were supposed to get in contact
with Baron Easter, now, earlier you said you had worked out a
deal where you were trying to get drugs for them. Did you give
them the information, the name of Baron Easter; or did they
provide that name for you?
Thompson: I gave it to them.
State: Okay. So Baron Easter was someone that you had contact with?
Thompson: Yes.
¶50. Thompson's testimony provided that he supplied Easter's name to the MBN to arrange
a transaction to get drugs. Agent Grogan testified that the purpose of working with a
confidential informant was to get the informant to help arrange sting operations to apprehend
other violators. We find that not objecting to Agent Grogan's statement, "he was going to
help get his source," did not amount to ineffective assistance of counsel.
¶51. Second, Easter also contends that the trial counsel did not aggressively defend him
by not objecting to Agent Grogan's account about "something else later on in the week."
However, what the "something else" was not stated. Agent Grogan did not say that it
28
involved another drug transaction. Also, the State did not ask Agent Grogan as to any other
conversation. The record reflects the following exchange:
State: After you received the dope, what happened -- or I'm
sorry-- the suspected substance, what happened?
Agent Grogan: Mr. Easter and Chris Thompson had a little discussion
about something else later on in the week, and then we
left and went down Highway 19 and got back on the
interstate going toward our office.
Besides the fact that the "something else" was not identified or referenced as any other drug
activity, it is also reasonable that the trial strategy was to avoid drawing further attention to
the statement. This Court finds that this did not constitute ineffective assistance of counsel.
¶52. Third, Easter alleges that the trial counsel did not raise any disparity in treatment
between Thompson and Easter. However, Attorney Parrish did attempt to discredit
Thompson as a witness. The record reflects the following:
Parrish: Now, let's talk about the reason that you're testifying here today.
You got arrested for selling drugs?
Thompson: No, sir.
Parrish: You got arrested for possessing a -- possession with intent to
sell drugs?
Thompson: Yes, sir.
Parrish: Okay. And they told you that if you didn't snitch on other
people, they'd send you to prison for 20 or 30 years; is that
correct?
Thompson: No.
Parrish: Okay. What did they tell you?
Thompson: They told me that I would have a better chance if I helped them.
They didn't tell me I had to snitch. They didn't force me to or
anything like that.
Parrish: They didn't force you to snitch?
Thompson: No.
Parrish: Okay. And you've pled guilty to a felony?
Thompson: Yes, sir.
Parrish: Drug felony?
Thompson: I did.
29
Parrish: And you got a probationary sentence; correct?
Thompson: Yes, sir.
Parrish: And that was because of your help in this investigation is that
correct?
Thompson: Yes.
Parrish: So it would be safe to say to avoid prison, you're willing to turn
in anybody that you could find to save yourself; is that correct?
Thompson: No.
We find that this allegation is without merit.
C. Previously Addressed Issue
¶53. Easter argues that it amounted to ineffective assistance of counsel for his counsel not
to have made a Batson challenge when Juror 11 was struck. The lack of a Batson challenge
was addressed in issue IV. Therefore, we will not address it again in detail. However, there
were 10 blacks out of the 35 venire panel. Three out of the 12 jurors that served were black.
Easter only contests the State's use of its peremptory challenge as to Juror 11. As discussed
in Issue IV, there was no error in striking Juror 11. Alternatively, as discussed in footnote
2 in issue IV, there was an exchange between the State and Juror 11 during questioning.
This Court finds that in the case sub judice the lack of a Batson challenge does not merit
reversal.
D. Pretrial Hearing
¶54. Finally, Easter alleges on appeal that trial counsel should have requested a pretrial
hearing on whether Easter's 2 prior drug convictions could be used for impeachment if he
took the stand to testify. However, Easter did not testify at trial so his prior convictions were
not introduced to the jury. The prior convictions were only examined by the trial court on
sentencing to determine if enhancement for habitual offender status was proper. Whether
30
Attorney Parrish's decision not to call Easter to testify amounted to ineffective assistance of
counsel is the real issue before this Court.
¶55. On appeal, Easter's appellate counsel does not address any possible trial strategy by
Attorney Parrish for not calling Easter to testify. For instance, Attorney Parrish may have
feared voice recognition since the State was introducing 2 taped conversations into
evidence. Various other possible trial strategy theories may exist to support the decision not
to call Easter to the stand. Easter does not present any support in the form of affidavits or
any proposed testimony as to any ineffective assistance of counsel. In fact, Easter does not
present any evidence of ineffective assistance of counsel to merit reversal.
¶56. In King v. State, 679 So. 2d 208, 209-10 (Miss. 1996), the Kings claimed that their
attorneys advised them that it would better if they did not testify themselves since they had
prior convictions. No witnesses were called to testify by the defense. Id. at 210. Citing
Alexander v. State, 503 So. 2d 235, 240 (Miss. 1987) and Buckelew v. United States, 575
F.2d 515, 521 (5th Cir. 1978), this Court held that "[d]ecisions regarding which witnesses
to call are peculiarly within the gambit of trial strategy." King, 679 So.2d at 211. The Court
further stated that:
The Kings' habitual offender status certainly highlights their 'unlikely status
as candidates for the witness stand,' and gives added credibility to counsel's
strategy. We do not undertake this opportunity to second guess obvious trial
strategy...Nor are we enlightened by the affidavits of the three supposed ready,
willing and able other witnesses.
Id. at 212. We find that this issue does not merit reversal.
¶57. In conclusion, Easter fails to establish that he received ineffective assistance of
counsel at trial. In fact, the record reflects that Easter's trial counsel had a difficult case to
31
defend given the 2 eyewitnesses that testified as to the sale and the taped recorded
conversations. Furthermore, in this case, we have the unusual situation of having a record
which reflects that Attorney Parrish had negotiated a 15 year non-habitual sentence in
exchange for Easter pleading guilty. The record demonstrates that Attorney Parrish advised
Easter to take the plea but Easter refused. Attorney Parrish was successful as a result of his
motion for directed verdict to have the trial court dismiss the portion of the indictment which
dealt with the sale being within 1,500 feet of a public park. Easter fails to establish that his
defense was prejudiced as a result of Attorney Parrish's representation.
CONCLUSION
¶58. For the foregoing reasons, this Court affirms the judgment of the Circuit Court of
Lauderdale County, Mississippi.
¶59. CONVICTION OF SALE OF COCAINE AND SENTENCE OF FORTY
YEARS (40) IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE POSSIBILITY OR BENEFIT OF PROBATION
OR PAROLE, TOGETHER WITH ALL COSTS AND FEES, AFFIRMED.
APPELLANT IS GIVEN CREDIT FOR 35 DAYS SERVED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT
PARTICIPATING.
32