        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-00669-COA




GYRONE MARCELL MCSWAIN A/K/A                                               APPELLANT
GYRONE MCSWAIN

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         04/05/2013
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                        PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF POSSESSION OF A
                                          CONTROLLED SUBSTANCE AND
                                          SENTENCED TO SIXTEEN YEARS IN THE
                                          CUSTODY OF THE MISSISSIPPI
                                          DEPARTMENT OF CORRECTIONS, WITH
                                          FOUR YEARS SUSPENDED FOR POST-
                                          RELEASE SUPERVISION, AND ORDERED
                                          TO PAY A $2,500 FINE AND $550 IN
                                          RESTITUTION
DISPOSITION:                              AFFIRMED - 10/28/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    A Forrest County jury convicted Gyrone Marcell McSwain of possession of a

controlled substance. The circuit court sentenced him to sixteen years in the custody of the

Mississippi Department of Corrections, with twelve years to serve and four years suspended
for post-release supervision. McSwain appeals.

¶2.    His appellate counsel filed a Lindsey 1 brief, certifying that he believes that there was

no error at the trial stage. McSwain filed a pro se supplemental brief, alleging that: (1) the

search of his house was illegal; (2) he received ineffective assistance of counsel; and (3)

various instances of misconduct occurred during the trial. Finding no error, we affirm

McSwain’s conviction and sentence.

                                           FACTS

¶3.    On December 8, 2011, officers with the Hattiesburg Police Department executed a

search warrant for a residence located at 405 East Fifth Street in Hattiesburg, Mississippi.

A few days earlier, officers had made a “controlled buy” of crack cocaine at the same address

from Tyrone McSwain, McSwain’s’s fraternal twin brother, giving them probable cause to

obtain the search warrant. When officers arrived to execute the warrant, they identified

McSwain leaving the residence, heading toward his car. An officer detained McSwain, while

others searched and secured the residence.

¶4.    Police found two pistols above the door frame of a bedroom that contained items

connecting McSwain to the bedroom. In the bedroom, police found mail addressed to

McSwain. They also found a picture of McSwain affixed to the mirror of the dresser in the

bedroom. On the same dresser, they found what they believed to be crack cocaine. In the

bedroom closet, police found one bag of a substance that appeared to be crack cocaine, a



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           Lindsey v. State, 939 So. 2d 743 (Miss. 2005).

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scale, and a cologne box containing $4,800 in cash. The Mississippi Crime Lab performed

a forensic analysis of the substance found in the bedroom, and the substance tested positive

for cocaine. Mail addressed to Tyrone and other narcotics were found elsewhere in the

house. Tyrone appeared at the residence during the search and was also arrested.

¶5.    McSwain was indicted for one count of possession of a controlled substance with the

intent to distribute, with a firearm enhancement under Mississippi Code Annotated section

41-29-139 (Supp. 2014). During the trial, while testifying in his defense, McSwain admitted

living at 405 East Fifth Street with his brother, Tyrone, and a nephew and having keys to the

house. However, McSwain maintained that the drugs found in the bedroom were not his.

After his trial, a jury convicted McSwain of possession of a controlled substance. The circuit

court sentenced McSwain to sixteen years in the custody of the Mississippi Department of

Corrections, with twelve to serve and the remaining four years suspended for post-release

supervision, leading to this appeal.

                                       DISCUSSION

¶6.    Pursuant to Lindsey, 939 So. 2d at 746 (¶18), whenever appellate counsel determines

that his client has no meritorious appeal, counsel must:

       (1) file and serve a brief in compliance with Mississippi Rule of Appellate
       Procedure 28(a)(1)-(4),(7);

       (2) certify that there are no arguable issues supporting the client’s appeal, and
       he or she has reached this conclusion after scouring the record thoroughly,
       specifically examining: (a) the reason for the arrest and the circumstances
       surrounding arrest; (b) any possible violations of the client's right to counsel;
       (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible
       prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether

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       admitted into evidence or not; and (h) possible misapplication of the law in
       sentencing.

       (3) Counsel must then send a copy of the appellate brief to the defendant,
       inform the client that counsel could find no arguable issues in the record, and
       advise the client of his or her right to file a pro se brief.

(Internal citations omitted). Upon receipt of a Lindsey brief, an appellate court should

require supplemental briefing of appellate counsel if the defendant files a brief raising an

arguable issue, or if the appellate court, in its review of the record, discovers an arguable

issue. Id.

¶7.    In this case, McSwain’s counsel has filed a brief indicating that he thoroughly scoured

the record and found no arguable issues to support McSwain’s appeal. Counsel specifically

asserts that he considered and reviewed: (a) the reason for the arrest and the circumstances

surrounding the arrest; (b) any possible violation of McSwain’s right to counsel; (c) the entire

trial transcript and content of the record; (d) all rulings of the trial court; specifically, the

rulings on various defense counsel objections, including, but not limited to, objections made

by defense counsel that were properly sustained; (e) possible prosecutorial misconduct; (f)

all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible

misrepresentation of the law in sentencing; (i) the indictment and all pleadings in the record;

(j) any possible ineffective-assistance-of-counsel issues and any other possible reviewable

issues; (k) whether the verdict was supported by the overwhelming weight of the evidence;

(l) whether trial counsel’s failure to file post-trial motions prejudiced McSwain; and (m) any

Fourth Amendment violation stemming from the search warrant. Counsel further confirms


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that McSwain was advised of his right to file a pro se brief. McSwain has done so.

¶8.    In his brief, McSwain asserts: (1) the search was illegal; (2) he received ineffective

assistance of counsel; and (3) there were instances of misconduct during the trial. After a

thorough review of the record, we have found no arguable issue. However, for the sake of

thoroughness, we briefly address the issues raised by McSwain.

       I. Illegal Search

¶9.    McSwain complains that his brother Tyrone’s name was listed in the search warrant,

and not his. The warrant specifically authorized a search of 405 East Fifth Street and recited

that the premises were controlled and occupied by Tyrone and unknown occupants. Given

that McSwain admitted that he resided at the same residence as Tyrone, we find any

argument regarding an illegal search and illegally seized evidence as a result of the search,

unpersuasive. We note that McSwain does not claim a lack of probable cause to invalidate

the warrant; however, he does claim that the officers proceeded to search the residence

without having the warrant in their possession. Agent Kendrick Short testified that he did

not execute the search of the house until after the search warrant had been signed. In

addition, Officer Jason Reed testified that he saw the search warrant prior to going to the

residence. While the record is not entirely clear as to whether the officers had the search

warrant in their possession when they went to the house to execute the search, it is clear that

they had obtained the search warrant before executing the search. Since the police officers

had a valid search warrant, whether in their possession or not at the time of the search, the

search was legal. See Williams v. State, 583 So. 2d 620, 624-25 (Miss. 1991) (holding that

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the failure to hand a copy of the search warrant to one of the codefendants does not require

reversal). This issue is without merit.

          II. Ineffective Assistance of Counsel

¶10.      On direct appeal, McSwain asserts an ineffective-assistance-of-counsel claim. It is

well settled that

          the merits of a claim of ineffective assistance of counsel brought on direct
          appeal should be addressed only when (1) the record affirmatively shows
          ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the
          record is adequate to allow the appellate court to make the finding without
          consideration of the findings of fact of the trial judge.

Jackson v. State, 73 So. 3d 1176, 1181 (¶20) (Miss. Ct. App. 2011). After a thorough review

of the record, we find that it does not affirmatively show ineffectiveness of counsel. The

parties have not stipulated that the record is adequate, and we cannot determine that findings

of fact by the trial judge are not needed for us to consider the issue. See Read v. State, 430

So. 2d 832, 841 (Miss. 1983). Consequently, we deny relief on this issue without prejudice

so that McSwain may, if he desires to do so, raise his claim in a motion for post-conviction

relief.

          III. Misconduct

¶11.      McSwain alleges that prosecutorial misconduct occurred throughout the trial. He

argues that the prosecutor attempted to “locate a juror that [had] a problem with the D.A.’s

case, in order to eliminate [the juror]. He [was] focusing on black potential jurors.”

Specifically, McSwain takes issue with the following monologue from Denton: “I need to

know if there[’]s anyone here who believes or thinks that in a drug case if the State cannot

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show that Mr. McSwain was holding the drugs, then he wasn’t in possession of [them]?”

After reviewing the record, we do not find anything inappropriate during the entire voir dire

process.   “Our law allows an attorney for either side to probe the prejudices of the

prospective jurors to the end that all will understand the jurors’ thoughts on matters directly

related to the issues to be tried.” West v. State, 553 So. 2d 8, 22 (Miss. 1989). McSwain fails

to show this court how the prosecutor’s conduct during voir dire amounted to prosecutorial

misconduct.

¶12.   McSwain further alleges that the prosecutor misled the jurors with his word choice

during the trial, specifically during his opening and closing statements. McSwain takes issue

with the prosecutor’s story about a dog that was left in a room and later feathers from pillows

were found everywhere, insinuating that this case had similar circumstantial evidence. “The

standard of review that appellate courts must apply to lawyer misconduct during opening

statements or closing arguments is whether the natural and probable effect of the improper

argument is to create unjust prejudice against the accused so as to result in a decision

influenced by the prejudice so created.” Sheppard v. State, 777 So. 2d 659, 661 (¶7) (Miss.

2000) (citing Ormond v. State, 599 So. 2d 951, 961 (Miss. 1992)). Our jurisprudence has

held that attorneys are allowed wide latitude in closing arguments. See Holly v. State, 716

So. 2d 979, 988 (¶33) (Miss. 1998); see also Wilcher v. State, 697 So. 2d 1087, 1110 (Miss.

1997). In addition, the “court should . . . be very careful in limiting free play of ideas,

imagery, and personalities of counsel in their argument to [a] jury.” Ahmad v. State, 603 So.

2d 843, 846 (Miss. 1992). Any alleged improper comment must be viewed in context, taking

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the circumstances of the case into consideration. Id. Here, after reviewing the transcript, we

do not find that the statements made by the prosecutor were improper and led to a prejudicial

outcome.

¶13.   Finally, McSwain argues that further misconduct occurred as a result of how the

circuit court handled the jury when it asked a question about the verdict. Specifically,

McSwain states that “[the court] never told the jury that if there’s reasonable doubt[, return]

a not-guilty verdict.” The record indicates that the jury requested clarification and asked:

“[H]ow do we write the verdict if we can’t agree?” According to the transcript, the circuit

court responded, “Please refer to the instructions.      The verdict must be unanimous.”

McSwain fails to show how the response to the jury was inadequate or prejudicial.

Therefore, we find this argument to be without merit.

¶14. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF
CONVICTION OF SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE AND
SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED FOR
POST-RELEASE SUPERVISION, AND ORDER TO PAY A $2,500 FINE AND $550
IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO FORREST COUNTY.

   LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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