author: ROBERTS, J., for the Court.

text:
    Don Frederick HANCOCK, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KP-01569-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied June 26, 2007.

      Don Frederick Hancock, Jr., appellant, pro se.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. Don Frederick Hancock, Jr. was indicted on June 21, 2004, as a habitual offender for the crime of armed robbery. Following his trial in the Circuit Court of Harrison County, First Judicial District, on June 23, 2005, Harrison was found guilty and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections under section 99-19-81 of the Mississippi Code Annotated (Supp.2006). Aggrieved by the jury’s finding, Hancock now appeals pro se and raises the following issues, listed verbatim:

I. IMPROPER AND MIS-LEADING JURY INSTRUCTION.

II. INEFFECTIVE ASSISTANCE OF COUNSEL / FAILURE TO OBJECT WHEN THE TRIAL COURT COMMITTED PLAIN ERROR BY ACTING AS AN ADVOCATE FOR THE STATE IN THE PRESENCE OF THE JURY / FAILURE TO OBJECT TO THE TRIAL COURT’S VIOLATION OF MISS. CODE ANN. § 99-17-35.

III. INEFFECTIVE ASSISTANCE OF COUNSEL / FAILURE TO CONDUCT AN ADEQUATE INVESTIGATION.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL / FAILURE TO ARGUE MOTION IN LIMINE WHICH ALLOWED PLAIN ERROR TO STAND UNCORRECTED / FAILURE TO REQUEST CURATIVE INSTRUCTION.

V. INEFFECTIVE ASSISTANCE OF COUNSEL / FAILURE TO OBJECT TO IMPROPER REFERENCE TO STATE’S CLOSING ARGUMENT TO EVIDENCE NOT PRESENTED AT TRIAL.

Finding no error, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Don Frederick Hancock, Jr., was indicted on the crime of armed robbery, as a habitual offender, on June 21, 2004. Specifically, Hancock was alleged to have robbed the Union Planters Bank in Gulf-port, Mississippi. During Hancock’s June 22, 2005 trial in the Circuit Court of Harrison County, First Judicial District, Marcella L. Shelby, the Union Planters’s teller actually robbed, testified that a short time after eleven on the morning of December 10, 2003, she was approached by a heavyset, white male with a moustache and dark hair wearing a hat, glasses and wearing a dark top. She could not identify Hancock at trial as the robber because of his “disguise,” but was confident that the robber threatened her with a gun. Another bank employee, Sonya Williams, testified that while she was not aware at the time that a robbery was occurring, she glanced at the robber and his hands but did not state whether she saw a gun. Finally, Williams and the bank manager testified that the robber stole around $7,300.

¶ 3. Thomas Nave, owner of the Deluxe Cleaners located next to the bank, was next to testify. He testified that as he left for lunch on December 10 he saw a man wearing a ball cap, dark top and black pants running from the bank towards a black pick-up truck parked behind the bank. When shown photographs of Hancock’s later found truck, State exhibits nine and ten, Nave testified that the truck he saw the morning of the robbery was very similar. Finally, he testified that no one ever parks where the truck was parked and when he returned from lunch forty-five minutes later it was gone.

¶ 4. The day after the robbery, the Gulf-port Police Department (GPD) provided a local newspaper with a description of the robber and a photo taken from the bank’s surveillance system. GPD was soon thereafter contacted by Karen Ramsey, a leasing agent at the Maison D’Orleans Apartment complex in Biloxi, and Cynthia Curtis, the apartment manager. Ramsey testified that as soon as she saw the photo in the paper she immediately recognized the man in the photo as Hancock, one of the tenants of the apartment. She stated that she recently saw Hancock when she attempted to collect two months of past due rent from him. She also learned that his power had been shut off. Curtis testified that she remembered Hancock as a generally heavyset man with a moustache and that he drove a dark truck.

¶ 5. Once contacted by Ramsey and Curtis, Detective Adam Cooper of GPD proceeded to the apartment to serve a search warrant. Cooper testified that the search resulted in a photo of Hancock and a dark colored truck, but Hancock was nowhere to be found. Further questioning of the apartment employees revealed that the apartment was actually leased to his mother, Sarah Hancock, but she now lived in a RV park. Cooper testified that Ms. Hancock looked disappointed when shown the bank surveillance photo and she said it looked like her son. Cooper also testified that Ms. Hancock stated that Hancock was driving a dark colored truck that was titled in her name. Cooper then testified that Hancock’s brother, who was present at Ms. Hancock’s residence, stated that he also believed it was his brother in the photo. Cooper further testified that Ms. Hancock stated since Hancock’s power had been disconnected at the apartment he had been living in hotels along the beach.

¶ 6. With this new information, on December 11, 2003, members of the GPD and Biloxi Police Department began searching for a dark colored truck at local hotels. Investigator Paul Cannette with the Biloxi Police Department was the first to spot Hancock’s truck at the Broadway Inn in Biloxi. Cannette testified that after spotting the truck, he, along with two other officers, stopped at the hotel, and while the other officers were speaking with hotel management, Cannette kept watch over the truck. Hancock then exited a room close to Cannette and after recognizing him from bank photos, Cannette identified himself as law enforcement and ordered Hancock to place his hands on the truck. Cannette further testified that after having Hancock empty his pockets onto the truck he waited for GPD personnel to arrive. Cooper testified that Hancock had $805 in his possession when he was arrested. Cooper continued that on December 16, 2003, after Hancock had been given Miranda warnings, Hancock stated that the money they found him with was related to the charge against him and that he had actually committed the act of which he was charged.

¶ 7. Jennifer Taylor was next to testify at Hancock’s trial. Taylor stated she ran an escort service under the name Misty Mars and Hancock employed her in December. She testified that she was with him some time before the robbery and the day after. She continued that both times he appeared to have money, but when she saw him after the robbery he had not only shaved his beard and moustache but also took her shopping with a “wad” of money, paid her $200 for her services, paid her a $100 tip and paid for the room at the Broadway Inn. Lastly, Taylor testified that Hancock drove a navy blue truck.

¶ 8. The State next called Matthew Bu-rel. While he testified that he was not familiar with the area, Burel spent time with Hancock while they were in jail while Hancock was awaiting his trial on the armed robbery charge. Burel testified that Hancock confessed to the robbery and stated that “as long as he could, his retirement [would] come out the end of a gun barrel.” Burel claimed that Hancock explained that he chose that particular bank because of its location and parked his truck by a fence between the back of the bank and a dry cleaners so it would not be noticed. Burel continued that Hancock stated that the teller he robbed was female and that he purposefully smudged his fingerprints so the police would not be able to identify him. Additionally, Burel testified that Hancock told him that he stole just under $8,000 and got rid of the gun he used somewhere between Biloxi and Ocean Springs. Furthermore, according to Bu-rel’s testimony, Hancock told him that after the robbery he spent time with a call girl named Misty Mars in hotels and they spent some money. Burel then testified that Hancock told him he was losing weight while in jail in order to “stump the jury.” The State then asked Burel if he had seen any of the discovery materials sent to Hancock by his attorney. He responded that Hancock did show some of the materials to him but he saw nothing in detail. Finally, the State asked about any arguments Burel may have had with Hancock. Burel testified that while he and Hancock had “debates” from time to time, they never had an argument.

¶ 9. After the State rested, Hancock called Christopher Landry to the stand. Landry testified that he, Hancock and Bu-rel were friends while in a restitution center. He further testified that while it was not an actual fight, Hancock “set Burel straight” in front of many of the center’s compulsory guests. Landry testified that Burel later claimed he was going to get Hancock back for embarrassing him. Specifically, according to Landry, Burel said he was going to testify against Hancock to facts he knew were false and it would be his word against Hancock’s.

¶ 10. After deliberating for two hours, the jury returned a verdict of guilty on the charge of armed robbery. On June 23, 2005, Hancock was subsequently sentenced to twenty-five years, day-for-day, in the custody of the Mississippi Department of Corrections. Aggrieved by this, Hancock now appeals. Additional facts will be discussed as needed.

ANALYSIS

I. WHETHER JURY INSTRUCTION S-2 WAS IMPROPER OR MISLED THE JURY.

¶ 11. This Court’s standard of review for jury instruction issues is well-established. “When considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed.” Scott v. State, 878 So.2d 933(¶ 92) (Miss. 2004). “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (quoting Collins v. State, 691 So.2d 918 (Miss. 1997)). There is no error “if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law....” Scott, 878 So.2d at (¶ 92).

¶ 12. Hancock claims that jury instruction S-2 should not have been given as it spoke to the weight of the evidence and implied that a gun was unimportant to the State’s case. Generally, the trial court should not comment on specific evidence, or the weight of said evidence, in the instructions given to the jury. Miss.Code Ann. § 99-17-35 (Rev.2000). Additionally, it is well settled that “[a]n instruction which is on the weight of the evidence or which singles out and gives undue prominence to certain portions of the evidence is erroneous.” Bester v. State, 212 Miss. 641, 647, 55 So.2d 379, 381 (1951); see also Duckworth v. State, 477 So.2d 935, 938 (Miss.1985) (stating that jury instructions should not comment on or single out specific evidence).

¶ 13. In support of his argument, Hancock cites Mickell v. State, 735 So.2d 1031 (Miss.1999). In Mickell, the defendant was charged with armed robbery of a convenience store and the jury was also instructed on the lesser-included offense of robbery. During its deliberations over the fate of Mickell’s charges, the jury requested clarification of the law in the form of a note which read, “can we convict a person of armed robbery without the policeman finding the gun or a gun?” Mickell, 735 So.2d at (¶ 5). Over objection, the circuit court responded, “yes.” Id. After his conviction, Mickell appealed and argued that the court’s answer of “yes” commented on the testimony and weight of the evidence. Id. The supreme court identified the central issue of the case as being whether Mickell had a gun, as the clerk who was robbed testified Mickell had a gun. Mic-kell took the stand and stated that he did not and the jury was instructed on the lesser offense of robbery. Id. at (¶ 10). In reversing Mickell’s conviction and ordering a new trial the supreme court held,

The trial court’s answer to the jury’s question in the case sub judice imper-missibly singled out the lack of specific evidence for particular attention by the jury and served to minimize the significance of the fact that no gun had been found by the police-an issue which was central to the case. The fact that the jury asked the question at all indicates that there may well have been jurors who had concluded that the State’s failure to recover a weapon was sufficient to raise a reasonable doubt that the crime of armed robbery had been committed. A pronouncement by the trial court that such evidence was not essential to a conviction for armed robbery could easily have undermined a legitimate analysis of the strength of the State’s proof. It is for this reason that judges are constrained from discussing the significance of any portion of the evidence.

Id. at (¶ 13).

¶ 14. Similarly, over Hancock’s objection, instruction S-2 was read as follows, “[t]he Court instructs the Jury that it is not necessary that the State either recover or produce at trial the weapon alleged to have been used by the Defendant in this case.” The circuit court’s rationale in giving S-2 was explained in the following exchange.

HANCOCK’S ATTORNEY: Your Hon- or, I object on the basis that I think that misleads the jury.
THE COURT: In what way?
■HANCOCK’S ATTORNEY: In that it tells them that in the defense’s perspective that a weapon is not important to the issue of armed robbery.
THE COURT: Well, S-2, for the benefit of the record, reads, [instruction read]. So it reaffirms that a weapon was used.
And taken in conjunction with ST1, the requirement that the jury find beyond a reasonable doubt that the currency was taken from her person and against her will by virtue of her employment by putting Ms. Shelby in fear of immediate injury to her person by the exhibition of a deadly weapon, to wit, a handgun, I find the jury instructions, taken as a whole, properly instruct the jury that a handgun' must have been used as the mechanism to place her in fear, and" I’m going to give S-2.

¶ 15. The language of Mickell makes it clear that the instruction at issue has been deemed an impermissible comment on the evidence, and, as such, the trial court erred in allowing the instruction over objection. However, the facts of Mic-kell are distinguishable from the case sub judice and any resultant error stemming from the inclusion of instruction S-2 was harmless.

¶ 16. The supreme court has stated that “an error is harmless only when it is apparent on the face of the record that a fair minded jury could have arrived at no verdict other than that of guilty.” Kolberg v. State, 829 So.2d 29(¶ 34) (Miss.2002) (quoting Carleton v. State, 425 So.2d 1036, 1040 (Miss.1983)). Error has also been deemed harmless “if it is clear beyond a reasonable doubt that it did not contribute to the verdict.” Conley v. State, 790 So.2d 773(¶ 72) (Miss.2001) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

¶ 17. In Mickell, that a gun was never found by law enforcement was a central issue to the case as Mickell took the stand in his defense and testified that he did not' even own a gun and the jury was instructed on the lesser offense of robbery. The Mickell court stated, “[a] pronouncement by the trial court that such evidence was not essential to a conviction for armed robbery could easily have undermined a legitimate analysis of the strength of the State’s proof.” Mickell, 735 So.2d (¶ 13). Such is not the case here. The jury in this case was presented with direct, uncontra-diated testimony from Shelby, the bank teller, that the robber had a gun during the robbery. That no one else testified to the presence of the gun during the robbery is of no moment. Additionally, Hancock’s counsel withdrew an instruction that would permit the jury to find Hancock guilty of simple robbery. Furthermore, evidence of Hancock’s participation in the crime was substantial. While no bank employees or customers were able to identify Hancock in court, those that knew him immediately identified him from bank surveillance photos. The leasing agent of the apartment complex where Hancock had lived for a time recognized Hancock from a photo printed in a newspaper and the apartment manager verified that Hancock drove a dark colored truck. When Cooper visited Hancock’s mother she looked disappointed when she saw the bank photo and said that it looked like her son. This identification was echoed by Hancock’s brother as well. Taylor testified that she was with Hancock before and after the robbery. She continued that he had a moustache before December 10 but when she saw him the day after the robbery he was clean shaven. Additionally, she testified that he had a significant amount of money the day after the robbery and was generous enough to buy her clothes and offer a fifty percent tip for her services. This pecuniary wherewithal is in stark contrast to his apparent financial situation days before the robbery. Ramsey, the leasing agent at Hancock’s apartment, testified that he was two months late on his rent and the power to his apartment had been disconnected. Many of these facts were verified by Burel, Hancock’s jailhouse confidant. Lastly, and most revealing, Hancock himself admitted that the money found in his possession when he was arrested at the Broadway Inn came from the robbery and, even more detrimental to Hancock’s case, that he actually committed the robbery. As the evidence against Hancock was such that no fair minded juror could have arrived at any verdict other than guilty, this issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 18. Our standard of review when considering a claim of ineffective assistance of counsel is well established. As recently stated in Scott v. State, 938 So.2d 1233(¶ 25) (Miss.2006):

The standard for determining if a defendant received effective assistance of counsel is well established. “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, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his attorney’s actions were deficient and that the deficiency prejudiced the defense of the case. Id. at 687[, 104 S.Ct. 2052], “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. 2052. The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.

Id. (quoting Davis v. State, 897 So.2d 960(¶ 10) (Miss.2004)).

Furthermore, a strong presumption exists “that the attorney’s conduct fell within the wide range of reasonable professional assistance.” Carr v. State, 878 So.2d 991 (¶ 27) (Miss.2004). “[Counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy” and will not stand as support for an ineffective assistance of counsel claim. Id. (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

a. Failing to object when the trial judge questioned a witness in the jury’s presence.

¶ 19. During the State’s examination of Samuel Moore, an individual who had previously spent time in jail with Hancock, the following colloquy took place:

A. [Moore] Can I say something? I have nothing to say about this. I want to plead the Fifth or whatever.
Q. [State] Okay. Well, let me ask you this, Mr. Moore. Do you remember making a statement to Mark Hampel, Investigator Hampel?
A. No.
Q. You don’t remember making that statement?
A. No, ma’am.
Q. Do you remember someone questioning you about what Mr. Hancock had told you about this?
A. Yeah. In Parchman.
Q. Okay. And do you remember telling them what he had told you?
A. No.
Q. You don’t remember that?
A. No, ma’am. I have nothing — you know what I mean?
Q. Can you tell me why you’re pleading the Fifth?
A. Because I really don’t have nothing to say. I really don’t remember. I don’t remember nothing really. I was coming off drugs, So I don’t remember nothing.
Q. Okay. And you weren’t involved in this bank robbery?
A. I was in jail when it took place. I believe I met him after I was already sentenced. I was so bad on drugs, I really don’t — if that’s the dude right there, I really don’t remember him.
Q. But you keep looking at him, right?
A. Well, that’s him then.
Q. Okay. Now, is it not true that you told one of the other ADAs today that unless we cut your sentence and set you free you weren’t going to tell what you knew?
A. No.
Q. You didn’t say that?
A. Oh, I did, yes. I said, what could you do for me? And they said, nothing.
Q. All right. And so now you’re refusing to tell what you know?
A. Yep.
Q. And do you remember Mr. Hancock telling you—
A. No, I don’t.
Q. —that his girlfriend was involved in this robbery?
A. No, ma’am.
Q. Do you remember Mr. Hancock telling you his girlfriend was involved in this?
A. No.
Q. You don’t? You don’t remember him talking to you about creating an alibi or anything like that?
A. No ma’am.
Q. None of that?
A. No, ma’am.
Q. You don’t even remember having this conversation?
A. No, ma’am.
Q. And are you denying you told the investigator at Parchman this statement?
A. I believe so, yes ma’am.
Q. And that’s because you just don’t want to tell anybody and you want to get out of jail?
A. No. I got my sentence. I’m fíne with it. But I don’t — you know what I mean? If it’s the truth, I say it. If it isn’t, then — you know what I mean? Everything you asked me so far I said the truth to.
THE COURT: Let’s hold on just a minute. Ms. Dodson, do you have [a] copy of the statement that he gave to the authorities?
THE STATE: I have a summary of it, Your Honor.
THE COURT: Hand it to Mr. Moore. Allow him to review it. Read it to yourself, Mr. Moore.
THE WITNESS: (Reviews Document) I don’t remember that, and I didn’t sign that, sir.
THE COURT: Just a second. Just a second. Mr. Moore, having read that statement and refreshed your recollection or given you the opportunity to refresh your recollection, I need to advise you at this point that you have no right to claim the Fifth Amendment. You are not a suspect. You are not charged with anything. You aren’t—
THE WITNESS: Oh, okay.
THE COURT: Let me finish my statement, Mr. Moore, because you really need to understand what I’m about to tell you. It’s important you listen to me for a minute. You have no Fifth Amendment right to refuse to answer Ms. Dodson’s questions. Given that they allege, the State alleges, that you have made a statement to law enforcement, what they’re going to do right after you claim that you have no memory of this is put the officer up there. And if the officer testifies that you
. made these statements to him and swears under oath that you told these things to him, you are then subject to the penalty of perjury given that you’re now sitting there under oath and an additional ten-year sentence.
THE WITNESS: Okay.
THE COURT: So what I’m going to do is send the jury out for about two or three minutes and let you stretch your memory and see if it comes back to yon, Mr. Moore.

At this point the jury was excused and Moore was further allowed to refresh his recollection and again advised of the consequences of failing to answer the questions asked of him truthfully. Additionally, Hancock’s attorney did, in fact, make an objection outside the presence of the jury, albeit a cautious one. He stated, “I’d just like to object to the manner in which it’s being done in that it appears to me thát he’s being pressured into [testifying].”

¶ 20. Hancock claims his attorney, James Evans, was ineffective in failing “to object when the trial court displayed bias against Hancock” in acting as an advocate for the State and violating Miss.Code Ann. Section 99-17-35 (Supp.2006), and the prejudice he suffered as a result of this lack of an objection changed the outcome of the trial. Hancock cites Brent v. State, 929 So.2d 952 (Miss.Ct.App.2005); West v. State, 519 So.2d 418 (Miss.1988); Nichols v. Munn, 565 So.2d 1132 (Miss.1990); Thompson v. State, 468 So.2d 852 (Miss. 1985); Jones v. State, 669 So.2d 1383 (Miss.1995) for support of his claim that failing to object was ineffective assistance of counsel, however, none of the cases cited by Hancock pertain to ineffective assistance of counsel. Hancock also cites Stallworth v. State, 310 So.2d 900 (Miss. 1975) in support of his proposition that his attorney provided ineffective assistance by failing to object to the trial court’s claimed violation of Section 99-17-35. Again, Stallworth does not speak to ineffective assistance of counsel.

¶ 21. Despite Hancock’s claims, it is clear that Evans objected to the trial court’s alleged involvement during Moore’s testimony. Furthermore, the trial court’s advisement of Moore is clearly distinguishable from the cases Hancock cites in support of his argument, and while, in most cases, trial courts would be well advised to excuse the jury before questioning or advising a witness, the trial court’s actions in the case sub judice can hardly be said to exhibit bias or advocacy for the State. In Brent, the court questioned a witness pertaining to substantive issues surrounding the case. Brent, 929 So.2d at (¶ 8); The trial court in West actually assisted the prosecution in what the supreme court referred -to as “coaching the district attorney.” West, 519 So.2d at 420-21. In Nichols, the trial court displayed obvious and unwarranted distrust of a witness’s response and heavily questioned another witness at the completion of cross-examination. Nichols, 565 So.2d at 1133, 1135. Similarly, once the prosecution and defense were finished with a witness, the court in Thompson further questioned the witness exhibiting his approval of the witness and her testimony. Thompson, 468 So.2d at 854. Finally, in Jones, the supreme court without condemning the trial courts actions, noted that its colloquy was conducted outside the presence of the jury. Jones, 669 So.2d at 1387.

¶ 22. In the case before this Court, Moore testified that he was not telling what he knew. The trial court did not question him regarding substantive testimony, but only advised him of the consequences of his admitted perjury. The risk of influencing the jury in terms of the trial court’s disposition regarding Moore and his testimony was nonexistent as it was obvious that Moore was being purposefully forgetful, and it was for this reason alone that he was cautioned. Furthermore, the trial court’s actions did not violate Section 99-17-35. In Stallworth, the supreme court reversed the judgment of the lower court based upon the trial court’s warning to a witness not to tell a lie. Stallworth, 310 So.2d at 901. The witness’s testimony was in conflict with other testimony given during the trial and the supreme court reasoned that by bringing attention to the truthfulness of the witness’s testimony the trial court commented on the testimony. Id. Unlike Stallworth, there was no testimony given that conflicted with Moore’s and, again, Moore admitted to perjury. Therefore, as Hancock’s attorney did object to the trial court’s actions and, even had he not, such actions would not have constituted error, this issue is without merit.

b. Failure to conduct an adequate investigation of discovery material.

1. Failure to object to the introduction of evidence.

¶ 23. During the State’s case-in-chief, Detective Sean Dunagan testified that he was one of the officers that searched Hancock’s truck after he was found at the Broadway Inn. During his testimony the State asked Dunagan to identify four items of clothing that were found during the search of the truck so they could be admitted into evidence. Without objection, the State introduced a pair of brown shoes, a Henley style shirt and a blue Hanes T-shirt. When the State attempted to introduce a pair of blue jeans, the final article of clothing, Hancock’s attorney objected based upon the claim that the jeans were not mentioned on any evidence list provided by the State during discovery. After both sides argued their relative points, the trial court sustained Hancock’s objection based on the fact that the jeans were not listed on any evidence list or property invoice given during discovery. During argument over the objection, Evans stated that he did not see the shoes, jeans or Henley style shirt on any evidence lists either. Based on this, Hancock claims that Evans failure to object to the introduction of those items was ineffective assistance of counsel.

¶ 24. Even if Hancock could support a finding that Evans’s performance was deficient in failing to object to the introduction of the items recovered from his truck, he must still show that but for his counsel’s errors, there is a reasonable probability that the outcome of his trial would have been different. The probability of a different outcome is reasonable if it is “sufficient to undermine confidence in the outcome.” Cole v. State, 666 So.2d 767, 775 (Miss.1995). This determination must be made based upon a totality of the circumstances. Eakes v. State, 665 So.2d 852, 863 (Miss.1995). Even without the introduction of the clothes, the record is replete with evidence of Hancock’s guilt. He was identified from the bank photos by his apartment leasing agent and manager as well as by his own mother and brother. Hancock’s truck matched the description of the truck Nave saw parked behind the bank. Testimony from Taylor indicated that his appearance before the robbery matched that shown upon the bank photos and that Hancock had changed his appearance since the robbery occurred. Additionally, she testified that he had a substantial amount of money when she saw him after the robbery. Burel testified that Hancock admitted to the bank robbery and supplied a great deal of detail surrounding the crime. Finally, Cooper testified that Hancock stated he committed the robbery. Based upon the overwhelming evidence against Hancock, we cannot say that absent the introduction of the clothing the result of the trial would have been different. As such, this issue is without merit.

2-3. Failure to object to false testimony.

¶25. Hancock next argues that Evans should have objected to Cooper’s testimony regarding Hancock’s apparent confession of the robbery and claim that the money found on his person at the time of arrest came from the robbery as “the discovery file contained two documents clearly stating Hancock never confessed and that Hancock stated the money came from drug sales.” However, the record is void of those documents Hancock claims contains information contrary to Cooper’s testimony, and, in fact, is void of any hint of doubt as to the truth of Cooper’s testimony. As such, there is nothing in the record to indicate that an objection regarding Cooper’s testimony would have been proper. Therefore, this issue is without merit.

c. Failure to argue a motion in limine or request a curative instruction.

¶ 26. Hancock next argues that he received ineffective assistance of counsel as a result of Evans’s failure to argue a motion in limine requesting the trial court to restrict counsel for the State and all State witnesses from mentioning' any crime Hancock may have committed other than the current armed robbery charge. Hancock continues that as a result of Evans’s failure to argue the motion Burel testified, without solicitation from the State, as follows:

Q. All right. Tell me what [Hancock] told you about the armed robbery, about this one in December of 2003.
A. He explained how he did it, that he’s got experience with the bank rob- ■ beries from his prior record.
MR. EVANS: Your Honor, I object. THE COURT: Sustained

At the conclusion of the State’s questioning of Burel, the jury was removed and Evans requested a mistrial as a result of Burel mentioning Hancock’s prior record. In denying the motion for mistrial, the trial court stated:

THE COURT:' What allegation of prior history? Your original motion said because of his prior convictions. There’s no reference to any convictions. There certainly was no solicitation by the State of any prior convictions. The question from the State at least was what he told you about this robbery. The witness’s response was not completely responsive, albeit he said, he told me that he had experience with bank robberies based on his prior record. Record to you and I in this setting typically means record of conviction. I don’t know that that’s what it necessarily means to the jury. It may mean his track record, his record around the community, his record of offenses. It could mean a number of things that we’re not permitted to speculate on.

Hancock further argues that Evans’s’ failure to request a curative instruction pertaining to Burel’s statement was also ineffective assistance of counsel.

¶ 27. While Burel did testify as to Hancock’s “prior record,” we would agree with the trial court that such testimony is ambiguous at best in the eyes of most jurors. “Where the witness refers briefly to another crime, and the testimony was not purposely elicited by the district attorney to prove the defendant’s character, no reversible error occurs.” Hobson v. State, 730 So.2d 20(1110) (Miss.1998). Burel made no mention of any specific prior convictions or crimes, but only made reference to Hancock’s experience. As the statement did not educate the jury on Hancock’s criminal history, it could not have tainted the jurors’s view of the overall case against Hancock, and, as such, did not prejudice his defense. Therefore, even assuming Evans was deficient in failing to argue the motion in limine, Hancock has failed to show any prejudice as a result. This issue is without merit.

¶ 28. Hancock’s claim that Evans was deficient in not requesting a curative instruction is also without merit as that decision falls squarely within the realm of trial strategy. While Burel’s statement was not immediately prejudicial, caution by the trial court may have sparked the juror’s attention and inadvertently brought undue consideration of an otherwise harmless statement.

d. Failure to object during the State’s closing argument to reference to evidence not presented at trial.

¶ 29. Hancock’s final claim of ineffective assistance of counsel concerns Evans’s failure to object when the prosecution made reference during its closing argument to a hat found during the search of Hancock’s truck when no such hat was ever found. As evidence of the effect the prosecution’s statement had upon the jury, Hancock calls attention to a note the jury sent the trial judge inquiring about the statement. The note stated, “What was Mr. Evans [sic] statement in closing arguments in reference to the hat,” to which the judge responded, “You have all the evidence and instructions of law. Please continue your deliberations.” A similar claim was made in Jackson v. State, 860 So.2d 653 (¶ 79-80) (Miss.2003). In Jackson, the prosecutor stated during closing arguments that Jackson had been previously convicted of kidnaping. Id. In fact, Jackson had not been convicted of kidnap-ing, but only burglary with the intent to commit kidnaping. Id. In finding that the prosecutor’s misstatement was not prejudicial, and in turn that Jackson was not prejudiced by his attorney’s failure to object to the statement, the Jackson court noted that the jury had been supplied with a certified copy of the actual conviction as evidence of the inaccuracy of the prosecution’s statement. Id.

¶ 30. In the case sub judice, the prosecutor’s actual statement was, “And in the search of the truck you have the evidence items here, a blue-gray Henley shirt, blue tee shirt, and cap.” The jury was obviously confused by the statement as there was no cap presented or offered into evidence. Additionally, Cooper was again called to the stand as the last defense witness and he testified that a hat was never recovered. The jury’s note is evidence of this confusion and not prejudice to Hancock. In fact, the note indicates that the jury was acutely aware of the State’s misstatement and questioned the court for clarification. The trial court’s response informing the jury that they had all evidence before them solidified its understanding of the misstatement as there was no hat present among the evidence and testimony from one of the officers that conducted the search of Hancock’s truck indicated that no hat was ever recovered. As in Jackson, Evans failure to object during closing does not demonstrate, in the face of the jury’s note, the lack of a hat in evidence and Cooper’s testimony, that Hancock was prejudiced. Therefore, even if Evans’s failure to object could be characterized as deficient, the result of a lack of objection did not prejudice Hancock, thus prohibiting him from proving the second prong of Strickland. As such, this issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER UNDER SECTION 99-19-81 OF THE MISSISSIPPI CODE ANNOTATED IS AFFIRMED. ALL COSTS OF THIS APPEAL APE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.

      . The disguise Shelby referred to was a hat, glasses, and moustache. The day of trial Hancock was clean shaven.


source: Caselaw Access Project

author: MYERS, P.J., for the Court.

license: Public Domain

text:
    Jonathan M. WHITE a/k/a Jonathan Maurice White, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01213-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Ross Parker Simons, Richard C. Conant, Pascagoula, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J., for the Court.

¶ 1. Jonathan Maurice White appeals his October 22, 2004, Jackson County Circuit Court conviction of capital murder. The jury found that White, while attempting to evade an arrest on suspicion of driving under the influence, struck the patrol car of Moss Point Police Officer Larry Lee, resulting in Lee’s death. White was sentenced to a life term in the custody of the Mississippi Department of Corrections without the possibility of parole. Aggrieved by the judgment and sentence of the circuit court, White appeals, raising the following issues:

I. WHETHER THE CIRCUIT COURT ERRED IN ACCEPTING AS RACE-NEUTRAL THE REASONS OFFERED BY THE STATE FOR STRIKING JURORS NOS. 8, 9, 20, AND 29?
II. WHETHER JUROR NO. 30 WAS PROPERLY EXCUSED FOR CAUSE?
III. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING INTO EVIDENCE THE TESTIMONY OF THE STATE’S FORENSIC PATHOLOGIST, DR. PAUL MCGARRY, THAT PATROLMAN LEE WAS OUTSIDE OF HIS PATROL CAR WHEN STRUCK BY WHITE’S VEHICLE?
IV. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING INTO EVIDENCE STATE’S EXHIBITS NOS. 42, 43, 44, AND 45?
V. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING AN INSTRUCTION ON DEPRAVED HEART MURDER UNDER MISSISSIPPI CODE ANNOTATED SECTION 97 — 3—19(l)(b) WHEN THE INDICTMENT CHARGED WHITE WITH CAPITAL MURDER UNDER MISSISSIPPI CODE ANNOTATED SECTION 97-3-19(2)(a)?
VI. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT A CAPITAL MURDER CONVICTION?

¶ 2. Finding no error, we affirm White’s capital murder conviction and life sentence.

STATEMENT OF THE FACTS

¶ 3. At approximately 10:30 p.m. on the night of October 17, 2002, Patrolman Carlton Logan of the Moss Point Police Department observed a car weaving from side to side and otherwise being driven erratically. When Logan attempted to stop the vehicle, the driver, Jonathan Maurice White, made a sudden U-turn and fled on the wrong side of Mississippi Highway 63. Patrolman Logan then radioed his fellow patrolmen for assistance in apprehending White. In response to Logan’s radio transmission, Patrolman Larry Lee positioned his marked police patrol car with flashing blue lights on top of a highrise bridge spanning Highway 63 to block White’s path of escape. Patrolman Lee took a position outside his patrol car. As White approached the apex of the bridge, his vehicle reached a speed of nearly eighty miles per hour. Without slowing, White slammed his vehicle into Lee’s person and his patrol car. The impact propelled Lee some distance across the pavement causing mass trauma, resulting in death.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN ACCEPTING AS RACE-NEUTRAL THE REASONS OFFERED BY THE STATE FOR STRIKING JURORS NOS. 3, 9, 20, AND 29?

¶ 4. White asserts that the circuit court violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it accepted the reasons offered by the prosecutors for striking African-American Jurors No. 3, 9, 20, and 29 to be race-neutral. The State argues that each of the reasons offered by the State for striking these jurors has been previously recognized as an acceptable race-neutral reason in our State’s jurisprudence, and therefore, White’s Batson objections were properly overruled. We are to give great deference to the circuit court when reviewing whether or not peremptory challenges were race-neutral. Manning v. State, 765 So.2d 516, 519(¶ 8) (Miss. 2000). “Such deference is necessary because finding that a striking party engaged in discrimination is largely a factual finding. ... Indeed, we will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence.” Id.

¶ 5. Pursuant to the landmark case of Batson, a defendant may establish a prima facie case of purposeful racial discrimination in the State’s use of peremptory challenges by showing: (1) that he is a member of a cognizable racial group, (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race, and (3) that the facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities. See also Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987). In Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), the United States Supreme Court clarified the proper trial court procedure following a Batson objection as follows: (1) the defendant must make a prima facie showing that the prosecutor has exercised his peremptory challenges on the basis of race, (2) if the requisite showing has been made, the burden shifts to the prosecution to articulate race-neutral explanations for striking the jurors in question, and (3) the trial court has the duty of determining whether the defendant has carried his burden of proving purposeful discrimination. The process outlined in Hernandez has been adopted in Mississippi. See Walters v. State, 720 So.2d 856, 865(¶28) (Miss.1998); Thorson v. State, 721 So.2d 590, 593(¶2) (Miss.1998).

¶ 6. In the case at bar, the prosecution used ten of its twelve peremptory strikes to eliminate African-Americans from the venire. White raised Batson objections to the striking of Juror Nos. 3, 9, 20, and 29, and the circuit court then required the prosecutor to provide race-neutral reasons for striking each of these jurors. In response, the prosecutors articulated that Jurors No. 3 and 9 were struck because law enforcement officers present in the court room indicated to the prosecutors that Juror No. 3 had “a family full of drug dealers” and that Juror No. 9 “lived in a high crime area.” Additionally, the prosecutors articulated that Juror No. 3 was struck because she had previously served as a juror on a criminal case that failed to return a death sentence, where the prosecution sought the death penalty. The prosecution further proffered the reason that Juror No. 20 was struck because he was a counselor at a mental health facility and Juror No. 29 was struck because of her demeanor. The prosecution asserted that Juror No. 29 was non-responsive and slept through much of voir dire.

¶ 7. Our case law has set out a non-exhaustive list of valid race-neutral reasons for the exercise of peremptory challenges, which includes “living in a ‘high crime’ area, body language, demeanor, [distrust of a juror by the party exercising the strike], inconsistency between oral responses and the juror’s card, criminal history of juror or relative, social work and other types of employment, and religious beliefs.” Perry v. State, 949 So.2d at 767-68(¶ 7) (Miss.Ct.App.2006) (quoting Walker v. State, 815 So.2d 1209, 1215(¶ 12) (Miss. 2002)). Additionally, our supreme court has previously recognized prior service on a criminal jury that returned a verdict other than the outcome sought by the State as a valid race-neutral reason for striking a juror. Harper v. State, 635 So.2d 864, 868 (Miss.1994). Thus, we hold that the circuit court did not err in accepting as race-neutral the prosecution’s reasons for striking Jurors No. 3, 9, 20, and 29.

II. WHETHER JUROR NO. 30 WAS PROPERLY EXCUSED FOR CAUSE?

¶ 8. White next asserts that under the United States Supreme Court’s holding in Witherspoon v. Illinois, 391 U.S. 510, 519-20, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the circuit court erred in excusing Juror No. 30 for cause at the request of the State. White argues that the prosecutor’s delay in announcing that he would not seek the death penalty until after jury selection resulted in Juror No. 30 being improperly excluded for cause on the basis that he opposed the death penalty. The State asserts that the defense made no objection during voir dire to the striking of Juror No. 30 for cause, and, in fact, the defense agreed to the strike. Further, the State asserts that it was not error for the circuit court to excuse for cause a member of the venire who stated that he could not follow the law as enunciated.

¶ 9. Questions of prosecutorial misconduct will not be addressed where the defendant did not raise the question at trial. Jackson v. State, 832 So.2d 579, 581(¶ 3) (Miss.Ct.App.2002) (citing Dufour v. State, 483 So.2d 307, 311(Miss.l985)). Failure to object at trial acts as a procedural bar in an appeal. Jackson, 832 So.2d at 581(¶ 3) (citing Carr v. State, 655 So.2d 824, 853 (Miss.1995)). This issue is procedurally barred.

III. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING INTO EVIDENCE THE TESTIMONY OF THE STATE’S FORENSIC PATHOLOGIST, DR. PAUL MCGARRY, THAT PATROLMAN LEE WAS OUTSIDE OF HIS PATROL CAR WHEN STRUCK BY WHITE’S VEHICLE?

¶ 10. White asserts that the circuit court erred in permitting the State’s forensic pathologist, Dr. Paul McGarry, to testify that Lee was standing outside of his patrol car when struck by White’s vehicle. At trial, White argued that the testimony was outside the scope of Dr. McGarry’s expertise, that the information was not provided in discovery, and that the testimony was only meant to bolster the prosecution’s theory that White recognized a uniformed officer prior to impact. On appeal, White argues that Dr. McGarry was not tendered as an expert in accident reconstruction, and such testimony is outside his area of expertise. Further, White argues that Dr. McGarry’s opinion that Lee was outside of his patrol car when struck was not provided to the defense during discovery. The State contends that Dr. McGarry was qualified and accepted by the circuit court as an expert in forensic pathology, which encompasses expertise in wounds. Therefore, the State asserts that under Mississippi Rule of Evidence 702, Dr. McGarry was allowed to testify, based on the autopsy he performed and his autopsy notes, as to the position of Lee’s body at the time his wounds were received. Additionally, the State asserts that Dr. McGarry’s autopsy reports were provided to the defense prior to trial and his opinions were expressed therein. “[T]he admission of expert testimony is within the sound discretion of the trial judge.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003). Therefore, the decision of a trial judge will stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.

¶ 11. Our supreme court has previously addressed this issue in Bell v. State, 725 So.2d 836, 853-54 (¶¶ 50-51) (Miss.1998), where the court held:

In addition, Dr. Hayne was qualified as an expert in forensic pathology, which includes expertise in how wounds are received. This expertise necessarily relates to the position of the body at the time. The State contends that this is allowable under Miss. R. Evid. 702, Testimony by Experts.
Although there have been cases cited where experts were not permitted to testify to the position of the body, these are not consistent with the rules of evidence and the substance of the complained of testimony. Miss. R. Evid. 702 states: “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Bell stipulated as to the fact that Dr. Hayne was an expert in forensic pathology. Forensic pathology is generally accepted as a division within pathology requiring a medical degree and advanced training in forensic pathology. A forensic pathologist addresses two basic questions: what was the cause of death, and what was the manner of death? Rule 702 allows Dr. Hayne to opine as to the path of the lethal gunshot wound and that path is through the third finger on the right hand into the left temple. This view has broad acceptance in jurisdictions applying Rule 702. See Eason v. United States, 687 A.2d 922 (D.C.1996); State v. Thomasson, 122 Idaho 172, 832 P.2d 743 (Idaho 1992); State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (N.C.1979). This assignment of error has no merit.

Following the logic employed by our supreme court in Bell, we find Dr. McGarry’s testimony that Patrolman Lee’s wounds indicated that he was struck while standing outside his vehicle, rather than sitting inside, is admissible under Rule 702. Furthermore, the opinion is consistent with the autopsy report provided to the defense prior to trial and the circuit court did not abuse its discretion by allowing Dr. McGarry to opine as to the location of Patrolman Lee’s body at the moment of impact.

IV. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING INTO EVIDENCE STATE’S EXHIBITS NOS. 42, 43, 44, AND 45?

¶ 12. White argues that the circuit court erred in admitting into evidence, over his objection, State’s Exhibits No. 42, 43, 44, and 45, all which depicted Patrolman Lee’s mangled body. He asserts that the gruesome and repetitive content of the photographs served only to inflame the jury and that the probative value of the photographs was greatly outweighed by their prejudice. The State contends that the photographs were admitted during the testimony of Dr. McGarry to aid the doctor in describing the circumstances of Patrolman Lee’s death. The State asserts that Mississippi’s appellate courts have expressed that the admission of photographs, no matter how gruesome, for this purpose is within a trial judge’s sound discretion.

¶ 13. Our standard of review for either the admission or exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002). Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258(¶ 28) (Miss.Ct.App.2004). Specifically, the admissibility of gruesome crime scene photographs is within the sound discretion of the trial court. Randolph v. State, 852 So.2d 547, 566(¶ 62) (Miss.2002) (citing Chatman v. State, 761 So.2d 851, 854(¶ 11) (Miss.2000)). The decision to admit gruesome photographs “runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (citing Spann v. State, 771 So.2d 883, 895(¶ 29) (Miss.2000)). Photographs are deemed to have evidentiary value if admitted to (1) aid in describing the circumstances of the killing, (2) aid in describing the location of the body and cause of death, and (3) supplement or clarify witness testimony. Id. The photographs in question were used by Dr. McGarry to describe the circumstances of Patrolman Lee’s death, the cause of death, and location of Lee’s body. The photographs were relevant and clarified the matter for the jury. Therefore, the admission of the photographs was not error, and this issue is without merit.

Y. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING AN INSTRUCTION ON DEPRAVED HEART MURDER UNDER MISSISSIPPI CODE ANNOTATED SECTION 97 — 3—19(l)(b) WHEN THE INDICTMENT CHARGED WHITE WITH CAPITAL MURDER UNDER MISSISSIPPI CODE ANNOTATED SECTION 97 — 3—19(2)(a)?

¶ 14. White was indicted under Mississippi Code Annotated section 97-3-19(l)(a) for capital murder, but a jury instruction was presented by the state on depraved heart murder under Mississippi Code Annotated section 97 — 3—19(l)(b). White argues that the circuit court erred in allowing a jury instruction on depraved heart murder to be read to the jury, when he was charged with capital murder. “This familiar issue has long been resolved in our state’s jurisprudence.” Chatman, 952 So.2d at 948(¶ 6). “Although the structure of Section 97-3-19(l)(a) and (b) appears to create two distinct categories of murder, Mississippi case law has established that deliberate design murder and depraved heart murder have coalesced into one.” Id. (citing Catchings v. State, 684 So.2d 591, 599 (Miss.1996)). “Although the statutory language defining depraved heart murder does not clearly state the requirement for deliberate design or malice aforethought, depraved heart murder involves an act so reckless that malice or deliberate design is implied.” Chatman, 952 So.2d at 948(¶ 6) (citing Windham v. State, 602 So.2d 798, 801 (Miss.1992)). Therefore, we find no error by the court’s allowing the depraved heart murder instruction.

VI. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT A CAPITAL MURDER CONVICTION?

¶ 15. Lastly, White argues that the circuit court erred in denying his motion for JNOV and asserts that the evidence presented at trial was insufficient to support his capital murder conviction because the prosecution failed to prove the required element of Mississippi Code Annotated section 97-3-19(2)(a) that White acted “with knowledge that the victim was a peace officer.” Issues based upon a denial of a motion for JNOV challenge the sufficiency of the evidence. Boose v. State, 851 So.2d 391, 394(¶ 13) (Miss.Ct.App. 2003). The standard of review of a claim that the evidence presented at trial was insufficient to support the verdict requires the reviewing court to accept as true all evidence tending to support the verdict, including the inferences derived therefrom, and ask the question, “after viewing the evidence in the light most favorable to the prosecution, [if] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979)). This Court may only reverse the denial of the directed verdict or JNOY “where with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.” Boose, 851 So.2d at 394(¶ 14) (quoting Harveston v. State, 493 So.2d 365, 370 (Miss.1986)). The evidence adduced at trial established that White struck Lee, a uniformed police officer, with his automobile while Lee was standing outside his marked police car with flashing blue lights. The argument that White was unaware that Lee was a police officer is unsupported by the record. Accordingly, we find that the evidence presented at trial, when viewed in the light most favorable to the prosecution, and allowing the jury to make all reasonable inferences therefrom, would allow a rational juror to conclude that White knew Lee was a police officer at the moment of impact. This issue is without merit.

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

LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.


author: CHANDLER, J., for the Court.

text:
    Ronnie MITCHENER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-01630-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Stephen L. Beach III, Jackson, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for Appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Ronnie Mitchener pled guilty in the Circuit Court of Lowndes County to one count of kidnaping. The court accepted the plea and, at a separate hearing, sentenced Mitchener to twenty years in the custody of the Mississippi Department of Corrections. Mitchener timely filed a motion for post-conviction relief (PCR). He alleged that he received ineffective assistance of counsel (1) because his attorney repeatedly assured him that if he entered an open plea of guilt he would receive a sentence of time served and probation, and (2) because his attorney told him that the kidnaping victim would not testify against him at the plea hearing, but the victim testified at the sentencing hearing. Mitch-ener attached the affidavits of witnesses that supported his factual allegations.

¶ 2. The circuit court summarily dismissed the PCR after finding that Mitch-ener’s claims were rendered a sham by his sworn statements in the plea petition and at the plea hearing. Mitchener appeals. We reverse and remand for an evidentiary hearing on the issues of ineffective assistance of counsel and involuntary plea, but find Mitchener’s other issues to be without merit.

FACTS

¶ 3. Mitchener was indicted for kidnap-ing on May 7, 2004, and entered an open plea of guilt at a hearing on November 12, 2004. The prosecutor indicated the State was prepared to show that, on January 3, 2004, Mitchener had held a visitor to his property at gunpoint for several hours. Mitchener did this because he was worried that the victim and other persons were involved in a conspiracy against him. The court informed Mitchener of the constitutional rights he waived by pleading guilty and of the maximum and minimum sentences for the crime. Upon questioning by the court, Mitchener stated that his lawyer had explained the kidnaping charge, his constitutional rights, and any defenses he might have and that he was satisfied with his lawyer’s assistance. Mitchener also stated that he was not under the influence of drugs or alcohol and that he was not pleading guilty in response to any threats or promises. Mitchener admitted that he had held the victim at gunpoint. The court accepted Mitchener’s plea after finding there was a factual basis for the plea and it was freely, voluntarily, knowingly, and intelligently entered.

¶ 4. At a separate sentencing hearing, the court heard testimony in aggravation from the victim and in mitigation from Mitchener and his examining physician. The aggravating and mitigating testimony was not transcribed and made a part of the record. After hearing the testimony, the court imposed a sentence of twenty years. The court provided a lengthy explanation for the sentence on the record and expressed concerns for Mitchener’s mental health and the safety of people in the community. The court related Mitchener’s testimony that he still thought the victim and others were involved in a conspiracy against him. The court stated that it based the twenty-year sentence primarily upon Mitchener’s demeanor and testimony at the sentencing hearing which revealed that he might remain a danger to the victim and others.

¶ 5. On August 31, 2006, Mitchener filed his PCR alleging his counsel was ineffective for guaranteeing that if Mitchener pled guilty, he would receive time served and probation and the victim would not be able to testify against him. Mitchener also asserted that his guilty plea was involuntary due to these misconceptions created by counsel’s erroneous advice. Mitchener attached his own affidavit to his PCR as well as the affidavits of several witnesses. In his affidavit, Mitchener made the following allegations:

1. In early to mid-September 2004, between the hours of 8:00 a.m. and 9:00 a.m., my attorney ... came to see me at the Lowndes County Jail. He told me he was going to get me out of jail and get me probation.
2. In or around early October 2004, between 8:00 a.m. and 9:00 a.m., my attorney ... came to see me at the Lowndes County Jail. He assured me he was going to get me a sentence of time served and probation.
3. In mid to late October 2004, I spoke with my attorney ... by way of a three way telephone conversation. The telephone call was made by Carolyn Bently to [my attorney], from Janice Burris’ telephone, my former bookkeeper and accountant for many years. [My attorney] told me if I pleaded he would have me out of there on time served and some probation. He also told me “Ronnie you did not kidnap this guy.” I said, “I know I did not, but if I plead to get myself out of jail will he be able to testify?” [My attorney] told me he will not be able to testify if you plead.
4. Sometime in the fall of 2004,1 spoke with my attorney ... by way of a three way telephone conversation. The telephone call was made by Elizabeth Stephens to [my attorney], for me, my attorney told me several times that he was going to get me probation with time served.
5. On November 12, 2004 at approximately 9:00 a.m. at the Lowndes County Courthouse, my attorney ... told me that he wanted me to plead. He said, “I’ve got you covered, I am going to get you time served and a couple years probation.” I asked [my attorney] if the alleged victim ... was going to be able to testify if I plead guilty because if [the victim] testifies, I want to go to trial and tell the truth about what happened.
[My attorney] reassured me again by telling me “He wont [sic] even be able to testify if you plead guilty, plus the Judge doesn’t care what this guy thinks, he is just a cabinet maker. I have known this Judge and worked with him a long time, I have you covered.” I will have you out of here sometime next week and you will be able to get back to taking care of business.
6. On March 3, 2005, immediately before my sentencing hearing, I learned that [the victim] was in the courthouse preparing to testify against me. I said to my attorney: “You told me that [the victim] would not be able to testify.” [My attorney’s] reply was: “Well, I did not think he would be able to.” If it had not been for [my attorney’s] assurances that [the victim] could not testify, I would have never pleaded guilty, as I had told [my attorney] on prior occasions.
7. Every time my attorney ... told me that I would be sentenced to time served and probation, it was in the form of an absolute guaranty and a certainty that probation would be my sentence. My attorney never told me that he believed or thought probation would be my sentence. All of his assurances to me were in the form of absolute statements that probation would be my sentence.
8. If it had not been for the repeated unqualified assurances of [my attorney] that I would be sentenced to probation, I would not have pleaded guilty and would have insisted on a trial to prove my innocence.

¶ 6. Mitchener’s ex-wife, Christine Mitchener, stated in her affidavit that she helped Mitchener stay in contact with his attorney because he had been denied bond. As the trial date neared, she and Mitchener spoke daily about the possibility of a trial and the ongoing plea bargain negotiations. In late September 2004, during a three-way call from Christine to Mitchener and his attorney, the attorney represented that if Mitchener entered an open plea of guilt, he would get probation. Christine Mitchener said she was hesitant, but the attorney assured her that probation would be the sentence if Mitchener entered an open plea. Before the sentencing hearing, Mitchener’s attorney called her and asked if Mitchener could live with her as a condition of his probation. During another conversation between Mitchener and his attorney, she heard the attorney again assure Mitchener he would get time served and probation. Christine Mitchener averred that Mitchener was so sure he would receive this sentence that he asked her to bring his truck to the sentencing hearing so that he could drive himself home. Christine Mitchener opined that if the attorney had not told Mitchener he would get probation, Mitchener would not have pled guilty.

¶ 7. Mitchener’s cousin, Betsy Chandler, averred that she learned Mitchener was going to plead guilty several days before the plea hearing and called his attorney for verification. The attorney told Chandler that he had not negotiated a plea deal with the district attorney, but assured her that Mitchener would get probation if he pled guilty. When Chandler expressed disbelief, the attorney “emphatically told me he was sure that Ronnie Mitchener would get probation.” Chandler told the attorney she thought it was dangerous for Mitchener to plead guilty without a plea deal, but the attorney said he knew-what he was doing. He again reassured Chandler that Mitchener would get probation.

¶ 8. In another affidavit, Elizabeth Stephens swore that, during an October 2004 three-way call from her home, she heard Mitchener’s attorney tell him that he would get him time served and probation. In her affidavit, Carolyn Bentley stated that, in fall 2004, she placed several three-way calls for Ronnie Mitchener. At least twice, she heard Mitchener’s attorney tell him he was sure that if Mitchener pled guilty, he would get time served and probation. Bentley also heard Mitchener ask the attorney if the victim could testify. The attorney told Mitchener that the victim could not testify if Mitchener pled guilty. Mitchener told the attorney that he wanted to go to trial if the victim could testify, but the attorney told Mitchener that he would have a better chance with a judge than with a jury.

¶ 9. After reviewing the record of the proceedings, the trial court summarily dismissed Mitehener’s PCR. The court found that Mitchener’s allegations were overwhelmingly belied by the plea hearing transcript and the guilty plea petition, which showed that Mitchener was informed that the court could sentence him to the maximum penalty of thirty years and that the court was the authority for setting the sentence. The court further found that the victim did not testify as to the facts of the case and thus did not testify against Mitchener per se.

STANDARD OF REVIEW

¶ 10. The lower court may summarily dismiss a PCR if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). On appellate review of a summary dismissal, we take the well-pleaded allegations of the PCR as true and review the record de novo. Myers v. State, 583 So.2d 174, 176 (Miss.1991). We will affirm if the petitioner has failed to demonstrate “ ‘a claim procedurally alive substantiality] showing denial of a state or federal right....’” Young v. State, 731 So.2d 1120, 1122(119) (Miss.1999) (quoting Myers, 583 So.2d at 176). We will reverse and remand for a hearing if the movant has “alleged facts which require further inquiry in the expanded setting of an evidentia-ry hearing.” Jones v. State, 949 So.2d 872, 873(¶ 3) (Miss.Ct.App.2007) (quoting Myers, 583 So.2d at 175).

LAW AND ANALYSIS

¶ 11. We have consolidated Mitchener’s issues under the following heading:

I. DID THE TRIAL COURT ERR BY DISMISSING MITCHENER’S PCR WITHOUT AN EVIDENTIARY HEARING?

¶ 12. Mitchener claims that he made a substantial showing of ineffective assistance of counsel and involuntary plea such that he was entitled to an evidentiary hearing. Claims of ineffective assistance of counsel must be made with specificity and detail. Robertson v. State, 669 So.2d II, 13 (Miss.1996). Mississippi applies the two-part test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to ineffective assistance of counsel claims. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). Under Strickland, a defendant alleging ineffective assistance of counsel bears the burden of proof to show that (1) counsel’s performance was deficient and prejudiced the defendant, and (2) there is a reasonable probability that, but for counsel’s deficient performance, a different result would have occurred. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). There is a strong but rebuttable presumption that counsel rendered effective assistance. McQuarter v. State, 574 So.2d 685, 686 (Miss.1990). We assess the questions of deficient performance and prejudicial effect by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995).

¶ 13. When a defendant challenges a guilty plea on the ground of ineffective assistance of counsel, he must show unprofessional errors of substantial gravity that proximately resulted in his guilty plea and that, but for these errors, he would not have entered the plea. Reynolds v. State, 521 So.2d 914, 918 (Miss. 1988). Another consideration here is that a claim that counsel’s erroneous advice induced a guilty plea implicates the volun-tariness of the plea. See Jones, 949 So.2d at 873(¶ 8). “To be enforceable, a guilty plea must emanate from the accused’s informed consent.” Myers, 583 So.2d at 177.

It is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty.

Gilliard v. State, 462 So.2d 710, 712 (Miss.1985) (citing Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)).

¶ 14. The record of the proceedings in this case reveals a facially correct guilty plea. At the plea hearing, the trial court asked Mitchener if he understood that the maximum sentence for the crime was thirty years if imposed by the court but a jury could impose a life sentence. Mitchener responded in the affirmative. The court asked if anyone had given Mitchener any hope of leniency to prompt him to plead guilty. Mitchener responded, “no.” Mitchener also stated that he was satisfied with his attorney’s advice and help. Mitchener executed a sworn plea petition on the day of the hearing, stating that he entered the plea freely and voluntarily. There was a pre-printed statement in the petition that Mitchener recognized that, if his lawyer told him he might receive probation or a light sentence, that was merely the lawyer’s prediction and not binding on the court. Another pre-printed statement declared that no officer or agent of any branch of government had represented to him that he would receive any form of leniency if he pled guilty. Under a section for district attorney sentencing recommendations, the words “ask for time” appeared with a scratch-through and, next to it, the words, “open plea.”

¶ 15. The State argues that Mitchener’s allegations that he pled guilty in response to counsel’s erroneous advice were belied by the plea petition and the transcript of the plea hearing. It is the rule that “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.” Wright v. State, 577 So.2d 887, 390 (Miss.1991). “Solemn declarations in open court carry a strong presumption of verity.” Blaekledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). This presumption has been held to apply to statements in sworn guilty plea petitions. Ward v. State, 879 So.2d 452, 455(¶ 11) (Miss.Ct.App.2003). However, an attack on a facially correct plea may survive summary dismissal if supporting affidavits of other persons are attached. Jones, 949 So.2d at 873(¶ 3).

¶ 16. In Myers, the court discussed the viability of a PCR alleging that the defendant pled guilty in response to the erroneous advice of counsel about the sentence the court would impose. Myers, 583 So.2d at 177. The court stated that a guilty plea may be subject to collateral attack when the defense counsel lied to the defendant about the sentence he would receive. Id. If the defendant relies on the erroneous advice in entering the plea, then the plea is not knowingly and voluntarily made. Id. The court recognized a distinction between a defendant’s “mere expectation or hope, however reasonable, of a lesser sentence than might be meted out after conviction upon trial by jury” and counsel’s firm representation of a lesser sentence. Id. (citing Sanders v. State, 440 So.2d 278, 287 (Miss.1983) (overruled on other grounds)). While a “mere expectation” or “generalized prediction” of a lesser sentence will not entitle the petitioner to relief, a firm representation of a lesser sentence may vitiate the plea. Id. This Court applied this analysis in Riggs v. State, 912 So.2d 162, 164 — 65(¶ 7) (Miss.Ct.App.2005), in which we affirmed the dismissal of Riggs’s PCR because the evidence showed that Riggs harbored a mere expectation or hope of being sentenced to time served and that counsel had made no firm representation.

¶ 17. In Mitchener’s affidavit, Mitchener averred that on numerous instances his attorney guaranteed that, if he pled guilty, he would receive time served and probation. The attorney went so far as to tell Mitchener that he knew the judge and “[had Mitchener] covered.” With these statements, the attorney firmly represented to Mitchener what sentence the judge would impose if he pled guilty and did not merely predict what Mitchener could hope for generally. Mitchener’s allegations were very specific and detailed as to the time, place, and content of the attorney’s assurances. Mitchener attached four witness affidavits providing additional specific and detailed information strongly corroborating Mitchener’s claim that the lawyer assured him he would get time served and probation if he pled guilty. The information contained in the affidavits was of sufficient evidentiary strength that we cannot say Mitchener’s claims were overwhelmingly belied by the plea petition and plea hearing transcript.

¶ 18. Mitchener’s claim that defense counsel misrepresented the length of sentence that would be imposed for a guilty plea is grounds for showing deficient performance under Strickland. Readus v. State, 837 So.2d 209, 214(1118) (Miss.Ct.App.2003). And, Mitchener’s averment that he relied on the attorney’s misrepresentations and would not have pled guilty but for the assurance of receiving time served and probation states a claim under the prejudice prong of the Strickland test. Id. Therefore, we reverse and remand this case for an evidentiary hearing on the issues of ineffective assistance of counsel and involuntary plea. We express no opinion on the merits of Mitchener’s PCR and hold only that his allegations in the PCR, along with the affidavits of himself and four others, are sufficient to “require further inquiry in the expanded setting of an evidentiary hearing.” Myers, 583 So.2d at 175.

¶ 19. We turn to Mitchener’s claim that he received ineffective assistance of counsel because his attorney told him the victim could not testify against him if he pled guilty, but the victim did testify at the sentencing hearing. In his affidavit, Mitchener said he told his attorney that, if the victim could testify at the plea hearing, he wanted to go to trial to tell the truth about what happened. The attorney told Mitchener the victim could not testify if he pled guilty. In addition to Mitchener’s own affidavit, this claim is supported by the affidavit of Bentley saying she heard the attorney tell Mitchener that the victim could not testify against him if he pled guilty. She also said she heard Mitchener tell his attorney that he wanted to go to trial if the victim could testify. Mitchener avers he would not have pled guilty if the attorney had told him the victim could testify against him.

¶20. The trial court reasoned that the attorney’s advice and Mitchener’s response related to whether the victim would testify for the State against Mitchener on the question of his guilt or innocence and, therefore, this advice did not encompass whether the victim could offer aggravating testimony at the sentencing hearing. Considering the totality of the circumstances, we find Mitchener’s claim does not overcome the presumption that counsel rendered effective assistance. Counsel made the statements when Mitchener was engaged in the process of deciding whether to plead guilty or go to trial to have his guilt or innocence determined by a jury. Counsel’s statements that the victim could not testify if Mitchener pled guilty logically related to whether, if Mitchener pled guilty, the victim nonetheless would be able to testify against him on the question of his guilt or innocence. In fact, the victim did not testify against Mitchener on the question of guilt or innocence. Mitch-ener has failed to show counsel’s advice was deficient. This issue is without merit.

¶ 21. Finally, for the first time on appeal, Mitchener argues that his attorney was deficient for neglecting to assure that a transcript was made of the aggravating and mitigating testimony at the sentencing hearing. Mitchener does not allege any specific error occurred that would have been shown by the missing transcript. Therefore, he has failed to show prejudice from the failure to transcribe the aggravating and mitigating testimony and his ineffective assistance of counsel claim on this ground is without merit. Branmer v. State, 947 So.2d 254, (¶ 19) (Miss.2006) (citing Green v. Johnson, 160 F.3d 1029, 1039 (5th Cir.1998)).

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING ON THE ISSUES OF INVOLUNTARY PLEA AND INEFFECTIVE ASSISTANCE OF COUNSEL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.