                          IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2003-KA-01338-SCT

JAMES JEROME IRBY a/k/a JAMES J. IRBY a/k/a
"MIKE"

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            5/23/2003
TRIAL JUDGE:                                 HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:                   LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      JAMES A. WILLIAMS
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY:                           BILBO MITCHELL
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 12/02/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

        WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.     Subsequent to an undercover drug bust, James Jerome Irby was convicted and sentenced

to sixty years in prison for selling cocaine.   Irby appeals, arguing several grounds of error.

Finding no reversible error, we affirm.

                                     FACTUAL BACKGROUND

¶2.     In November of 1999, the East Mississippi Drug Task Force, in cooperation with the

Attorney General's office, set up an undercover purchase of cocaine from James Jerome Irby.
Undercover agent David Polson, the "buyer," used Randy Sharpston, a confidential informant,

to gain the trust of the seller, Irby. Sharpston called Irby on a payphone and told him he had a

buyer who was willing to pay $1200 for an ounce of cocaine. Irby agreed to make the sale, but

told Sharpston he wanted to finish fishing first.

¶3.       As agreed, Polson, Sharpston, and Irby met at a local bar, and Irby directed the men to

follow him to the Dixie Gas Station. Unbeknownst to Irby, Polson was wired with a recording

device.     Additionally, agents Joseph Turnage, Joel Walters, Tim Eldridge, and Karl Merchant

monitored the operation from a vehicle by way of an audio surveillance system. Merchant used

a video camera to record the operation from a distance.

¶4.       At the gas station, Irby pulled up beside Polson and Sharpston in a well-lighted area and,

upon request, tossed a bag of powder cocaine into Polson's vehicle.                Irby testified, while

refusing to identify him by name, that a "Mr. Hair" was the one who provided the drugs, and that

he had ridden in the passenger's seat throughout the transaction. Irby got out of his vehicle to

collect the money and talked with the buyers for a moment after being paid.

¶5.       At a post-buy debriefing, Polson turned over the micro cassette tapes to Turnage and

the cocaine to Walters.         Turnage subsequently turned the tapes over to Walters.             In a

subsequent meeting with other agents, Polson positively identified Irby in a photo lineup.

¶6.       Walters died before trial. The audio and video tapes of the operation were consequently

unavailable, because Walters had apparently secured the evidence at a separate location without

telling anyone rather than putting it with the other case materials.          At trial, Irby admitted to

selling the drugs at the Dixie Gas Station that night. He offered the defense of entrapment, the

substance of his argument being that he trusted Sharpston, Sharpston solicited his help in


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locating drugs, and if he had known Sharpston was working with the police, he would have never

sold him the cocaine. The jury found Irby guilty of the sale of cocaine, and the judge sentenced

him to sixty years in prison in accordance with the Mississippi Uniformed Controlled

Substance Act.

                                              ANALYSIS

¶7.     Irby argues five grounds of reversible error: denial of due process as a result of the

missing audio and video tapes, propriety of voir dire questioning, propriety of jury instructions,

prejudicial nature of admitted evidence, and ineffective assistance of counsel.

        1. Missing Tapes

¶8.     We employ a two-part test when a defendant claims he is entitled to a new trial based

on the prosecution's loss or destruction of evidence.         First, we must determine whether the

evidence would have played a significant role in the defendant's case. Cox v. State, 849 So. 2d

1257, 1266 (Miss. 2003).        To play a significant role, the exculpatory nature and value of the

evidence must have been apparent before the evidence was lost.              Id.   Second, the defendant

must have no way of obtaining comparable evidence by any other means.                 Id.   Additionally,

"unless a criminal defendant can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due process of law."              Id. (citing

Wilson v. State, 574 So. 2d 1324, 1329 (Miss. 1990) (quoting Arizona v. Youngblood, 488

U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)).

¶9.     First, the missing tapes would not have played a significant role in providing valuable

exculpatory evidence for Irby's defense. Irby argues that the tapes would have shown that "Hair

was the drug dealer, not Irby." However, Irby's argument appears to rest on the presumption

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that he would be exculpated as being only a participant if he could somehow demonstrate that

he merely sold drugs that "Mr. Hair" provided. The fact remains that Irby admittedly sold the

narcotics and was convicted of doing so, regardless of the role that this third party may have

played.     Second, the fundamentally important evidence that was lost with the tapes was

recovered by the testimony of the officers and Sharpston, as well as Irby's own admission that

he negotiated the deal and delivered the cocaine.

¶10.      Furthermore, the record is totally devoid of any evidence that the loss of the tapes was

the result of any bad faith by Walters or the other agents. Therefore, this failure to preserve

potentially useful evidence does not constitute a denial of due process of law.      Irby was not

denied a fair trial, fundamental fairness, or due process as a result of the loss of the tapes. This

issue is without merit.

          2. Voir Dire

¶11.      Irby argues that the prosecutor inappropriately exacted a promise from the jury when

he asked:

                 Now, what I want to ask you is this: If you believe those facts that I just
                 related to you beyond a reasonable doubt and if the law is substantially
                 what I said I believe that it would be, in other words, if that is what the
                 judge tells you at the end of the case, is there anyone here for any reason
                 whatsoever that could not find the defendant guilty of [the] sale of
                 cocaine?

¶12.      Although Irby now objects to the prosecutor's question, no such objection was made

during trial.   The failure to make a contemporaneous objection waives the right of raising the

issue on appeal. Palm v. State, 748 So. 2d 135, 137 (Miss. 1999). As we have stated:

                 [A] voir dire examination of jurors must be discretionary with the circuit
                 judge, and in the absence of objection we have no way of knowing the


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                degree of influence it had, if any, on the ultimate verdict.' A trial court
                is not put in error unless it had an opportunity to pass on the question.

Id. (alterations in original & citations omitted).       Irby is procedurally barred from raising this

issue.

         3. Instruction C-10

¶13.     Irby vaguely argues that the use of instruction C-10 regarding Sharpston's prior

conviction "lacked integrity," and in light of the fact that his defense was entrapment "it was

fundamentally unfair for [i]nstruction C-10 to merely couch Sharpston's prior conviction as

only an impeachment of his testimony, as only a credibility question."               The instruction was

given to caution the jury that it should disregard the criminal history of Sharpston, the

confidential informant, other than for impeachment purposes.1            Instruction C-10, as amended,

reads:

         The [c]ourt instructs the [j]ury that evidence has been admitted, based upon
         improper questions of [d]efense [c]ounsel, regarding an arrest and conviction of
         Randy Sharpston. Defense [c]ounsel promised to provide additional testimony
         to make the evidence admissible and failed to do so. The only admissible part
         of this evidence is that Mr. Sharpston admitted that he had been convicted of the
         possession of cocaine. His conviction may only be used by you in determining
         his believability as a witness in this case and for no other purpose. You may not
         make any other inference or draw any other type of conclusion based upon that
         conviction. You shall not consider that part of the evidence involving arrest,
         charges made, or probation for any purpose whatsoever.

¶14.     At trial, the court asked Irby's attorney whether he had any objection to the instruction

regarding the testimony.     The defense attorney responded in the affirmative and stated, "I think



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         The prosecution requested the instruction as a result of Irby's attorney calling
Sharpston to the stand with the promise to the court that he would somehow link the
confidential informant's criminal history with his agreement to work as a confidential
informant. The defense attorney never did make the promised connection.

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it is incumbent on the evidence to say it is error to allow the testimony, and I think it is highly

prejudicial."

¶15.    After the prosecutor argued that the instruction should have never been allowed in

except for the purpose of impeaching Sharpston's testimony, Irby's attorney interrupted the

judge to say:

                BY MR. JORDAN: I don't think . . . it was error to allow that testimony.
                It wasn't error.

                BY THE COURT: Well, to the extent that it was admitted for the purpose
                of impeaching his credibility, it was not erroneous; is that your point?

                BY MR. JORDAN: Yes, sir.

The trial court then proceeded without any further objection to C-10.

¶16.    Our standard of review for jury instructions is as follows:

        [T]he instructions are to be read together as a whole, with no one instruction to
        be read alone or taken out of context. A defendant is entitled to have jury
        instructions given which present his theory of the case. However, the trial judge
        may also properly refuse the instructions if he finds them to incorrectly state
        the law or to repeat a theory fairly covered in another instruction or to be
        without proper foundation in the evidence of the case.

Howell v. State, 860 So. 2d 704, 761 (Miss. 2003).

¶17.    Generally, when a jury instruction is offered at trial, it is the duty of the opposing party,

in order to preserve the point for appeal, to state a contemporaneous objection in specific

terms. Nunnally v. R.J. Reynolds Tobacco Co., 869 So. 2d 373, 378 (Miss. 2004); Young v.

Robinson, 538 So. 2d 781, 783 (Miss. 1989); see also Holifield v. State, 431 So. 2d 929, 930

(Miss. 1983) (general objection to jury instruction does not suffice to preserve issue for

appeal).   Furthermore, on appeal a party may not argue that an instruction was erroneous for



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a reason other than the reason assigned on objection to the instruction at trial. Young, 538 So.

2d at 783.

¶18.    Irby's objection to instruction C-10 was ineffective to preserve the issue for appeal.

First, at the trial court, Irby's attorney vaguely argued, "it is incumbent on the evidence to say

it is error to allow the testimony, and I think it is highly prejudicial."       This broad argument

thoroughly lacks the specificity our precedent requires to preserve the issue for appeal.

Second, Irby's attorney initially objected to the instruction, but then later agreed with the judge

that his only concern was that the testimony be admitted for the purpose of impeaching

Sharpston's testimony.      In fact, that is exactly what the instruction achieved, albeit in a

discursive way. Even if we did somehow find that the objection was sufficiently specific, Irby

cannot now argue that the instruction was in error since he dropped the objection and agreed

that the instruction, as amended and given, was appropriate. This issue is without merit.

        4. Admission of Evidence

¶19.    Irby argues that "the disclosure to the jury . . . of Irby as being a big drug dealer,"

Sharpston's revelation that Irby had sold him drugs before, and the absence of the surveillance

tapes was highly prejudicial and robbed him of due process of law.

¶20.    The admissibility of evidence rests within the discretion of the trial court, Sturdivant

v. State, 745 So. 2d 240, 243 (Miss. 1999), and reversal is appropriate only when an abuse of

discretion resulting in prejudice to the accused occurs. Id.

¶21.    Irby argues that the absence of the surveillance tapes was prejudicial and robbed him of

due process of law.      We have adequately dealt with the issue of the surveillance tapes in this

opinion; therefore, no further discussion is warranted.

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¶22.       Irby also argues that the trial court erred in admitting evidence of his history of drug

dealing and his prior drug sales to Sharpston.       However, his defense of entrapment eviscerates

this assignment of error of any validity.         Entrapment occurs when law enforcement entices

someone into committing a crime he was not otherwise predisposed to commit solely for the

purpose of trapping the individual into committing the offense and prosecuting him for it.

Tanner v. State, 566 So. 2d 1246, 1248 (Miss. 1990). When entrapment is pled as a defense,

evidence of predisposition is always relevant and therefore admissible. Sanders v. State, 678

So. 2d 663, 668 (Miss. 1996). As we have previously stated, "a defendant is not entrapped -

and enjoys no protection from prosecution - when he is already predisposed to commit the

crime and when law enforcement officials merely furnish him the occasion or opportunity for

doing so." Tanner, 566 So. 2d at 1248.

¶23.       Evidence of Irby's history of having a predisposition towards drug dealing was made

relevant when he asserted the defense of entrapment.             Furthermore, the evidence of his

predisposition to make drug sales to Sharpston was of particular relevance to his defense of

entrapment. Irby may not avail himself of the defense of entrapment and then cry foul when

the resultant consequences of doing so work unfavorably for him.        This issue is without merit

as well.

           5. Ineffective Assistance of Counsel

¶24.       Irby points to a myriad of instances in which he claims that he received ineffective

assistance of counsel. The instances to which Irby points include, but are not limited to, Irby's

claim that his trial attorney "fail[ed] to bore into Sharpston" on cross-examination, the

attorney's alleged failure to clearly and precisely establish how Irby became a target for

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entrapment, the attorney's alleged failure to object to certain questions by the State, the alleged

failure to object "to the hearsay characterizations of Irby as a big drug dealer," and the

attorney's supposed failure to "'tie up' the weight of the pressure the [t]ask [f]orce placed on

Sharpston to make Irby get him drugs."

¶25.   The touchstone for testing a claim of ineffectiveness of counsel must be "whether

counsel's conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668,

686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).           The standard of review for a claim of

ineffective assistance involves a two-prong inquiry: The defendant must demonstrate that his

counsel's performance was deficient and that the deficiency prejudiced the defense of the case.

Carr v. State, 873 So. 2d 991, 1003 (Miss. 2004); Walker v. State, 863 So. 2d 1, 12 (Miss.

2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). This requires that the defendant

show that his attorney's "errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." Walker, 863 So. 2d at 12 (citing Strickland, 466 U.S. at 687, 104

S.Ct. at 2064). The defendant is required to prove both prongs of the test; otherwise, "it cannot

be said that the conviction . . . resulted from a breakdown in the adversary process that renders

the result unreliable." Walker, 863 So. 2d at 12 (citing Strickland, 466 U.S. at 687, 104 S.Ct.

at 2064).   In all cases involving a claim of ineffectiveness, "the performance inquiry must be

whether counsel's assistance was reasonable considering all the circumstances."          Walker v.

State, 863 So. 2d 1, 12 (Miss. 2003); (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2065).

¶26.   Irby has not demonstrated that his attorney's conduct was deficient, that it resulted in

prejudice, or that the attorney acted unreasonably considering the circumstances of his client's

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case.   Irby merely alleges general claims of deficiency based on tactical decisions made by his

trial counsel.    He has not presented any action of his attorney that we have found to be

unreasonable, and none of complaints he now lodges against trial counsel are we willing to

deem “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” The

evidence against Irby was overwhelming, notwithstanding the missing tapes.        Upon Irby's own

admission and failed entrapment defense, we can be certain that the guilty verdict was accurate

and well-deserved.       Any prejudice that Irby experienced at trial was a self-inflicted result of

his choice to sell powder cocaine to Sharpston, and he may not now attempt to lay the blame

at the feet of his trial attorney. This issue is without merit.

                                               CONCLUSION

¶27.    Finding no merit in Irby's assignments of error, we affirm the circuit court’s judgment.

¶28. CONVICTION OF SALE OF COCAINE AND SENTENCE OF SIXTY (60) YEARS AS
A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT HOPE OF PAROLE OR PROBATION, AND PAYMENT OF A
FINE OF $10,000.00, COSTS OF $248.00 AND LAB FEE OF $300.00, AFFIRMED.
APPELLANT IS GIVEN CREDIT FOR TIME SERVED.

    SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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