      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2012-KA-00363-COA

DEXTER JOHNSON                                        APPELLANT

v.

STATE OF MISSISSIPPI                                   APPELLEE


DATE OF JUDGMENT:              11/05/2007
TRIAL JUDGE:                   HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:     BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:       JOHN M. COLETTE
                               SHERWOOD ALEXANDER COLETTE
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:             BRENDA FAY MITCHELL
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I, KIDNAPPING,
                               AND COUNT II, MURDER, AND
                               SENTENCED TO THIRTY YEARS FOR
                               COUNT I, AND LIFE WITHOUT THE
                               POSSIBILITY OF PAROLE FOR COUNT II,
                               WITH THE SENTENCES IN COUNTS I AND
                               II TO RUN CONCURRENTLY TO EACH
                               OTHER BUT CONSECUTIVELY TO ANY
                               PREVIOUSLY IMPOSED SENTENCE, ALL
                               IN THE CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS, AND
                               TO PAY $3,944 IN RESTITUTION AND
                               $156 TO THE CRIME VICTIMS’
                               COMPENSATION FUND
DISPOSITION:                   AFFIRMED - 10/27/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

     BARNES, J., FOR THE COURT:
¶1.    Dexter Johnson appeals his convictions for kidnapping and murder on the bases that

he received ineffective assistance of counsel, and the trial court abused its discretion in

dismissing two jurors during the trial. Finding no error, we affirm.

              SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2.    On the afternoon of August 1, 2005, Robert Hill Smith and JimBuck Frazier were

riding in Frazier’s car, when they passed Johnson’s home. Spying Smith in the car, Johnson

followed the men because Smith owed him approximately $65. Johnson stopped Frazier and

Smith and approached the car with a gun in his hand. Johnson got into the back seat of

Frazier’s car and ordered Smith to give him the money he owed, pointing the gun at Smith’s

leg. Johnson then forced Smith to get into Johnson’s car, and they drove away. Frazier did

not see Smith and Johnson again.

¶3.    The following morning, a Bolivar County road worker cutting grass on Cut-Off Road

found Smith’s dead body in a corn field. Smith had been shot several times: twice in the

arm, three times in the back, and once in the back of the head. There were also abrasions on

the left side of his face. Upon hearing of Smith’s death, Frazier contacted law enforcement

and gave a statement about the incident that had occurred the previous day. Johnson was

arrested, and he provided a statement to police, confessing that he shot Smith. Johnson

admitted that he abducted Smith at gunpoint, but claimed that he only intended to “scare”

Smith into giving him the money. When the two men reached Cut-off Road, Smith started

fighting with him. During the tussle, Johnson felt Smith “poke” him with an object. He

responded by shooting Smith and dragging his body into the corn field. Although Johnson



                                             2
originally said he disposed of the gun in a nearby lake, Johnson later directed law

enforcement to a boarding house he occasionally frequented, where they found a loaded gun

that matched the 9 millimeter shell casings found near Smith’s body at the crime scene.1

¶4.    Johnson was charged with kidnapping and murder. After a jury trial in Bolivar

County Circuit Court on October 1-4, 2007, Johnson was convicted on both counts and

sentenced to thirty years for Count One, kidnapping, and life without parole for Count Two,

murder, to be served in the custody of the Mississippi Department of Corrections.

¶5.    After the trial court denied his numerous posttrial motions, Johnson appealed his

convictions, asserting that he received ineffective assistance of counsel and that the trial

court abused its discretion in dismissing two jurors during the trial. We find no error and

affirm the judgment.

                                        DISCUSSION

       I.       Whether Johnson was denied his right to effective assistance of
                counsel.

¶6.    Johnson submits that he was denied effective assistance of counsel due to defense

counsel’s decision not to challenge the admissibility of his taped confession through a motion

to suppress, and his failure to move for a mistrial after the dismissal of two jurors.

¶7.    A claim of ineffective assistance of counsel 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.’” Collins v. State, 70

       1
           No bullets were recovered from Smith’s body.

                                               3
So. 3d 1144, 1147-48 (¶17) (Miss. Ct. App. 2011) (quoting Colenburg v. State, 735 So. 2d

1099, 1101 (¶5) (Miss. Ct. App. 1999)). Therefore, “ineffective assistance claims are more

appropriately brought during post-conviction proceedings . . . because[,] during direct

appeals[,] the Court is limited to the trial court record in its review of the claim, and there

may be instances in which insufficient evidence exists within the record to address the claim

adequately.” Cage v. State, 149 So. 3d 1038, 1046 (¶22) (Miss. 2014). However, a claim

may be brought on direct appeal “if such issues are based on facts fully apparent from the

record.” Id. (quoting M.R.A.P. 22(b)).

¶8.    As the parties have made no stipulation as to the adequacy of the record, we must

inquire whether the record affirmatively shows that Johnson was denied effective assistance

of counsel. “[W]here the record cannot support an ineffective assistance of counsel claim

on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right

to argue the same issue through a petition for post-conviction relief.” McClendon v. State,

152 So. 3d 1189, 1192 (¶12) (Miss. Ct. App. 2014) (quoting Aguilar v. State, 847 So. 2d 871,

878 (¶17) (Miss. Ct. App. 2002)). Here we find that all of Johnson’s claims are confined to

the record and can be found within the trial transcript; so we will consider his ineffective-

assistance-of-counsel claim.

       A.     Counsel’s Failure to Contest the Admissibility of Johnson’s
              Statement

¶9.    Defense counsel filed a motion to suppress Johnson’s statement on April 3, 2006. The

motion asserted that statements made by Johnson to law enforcement “were the result of

persistent and repeated interrogations by numerous law enforcement officers and in the


                                               4
absence of counsel and without an intelligent or knowing waiver of counsel.” A hearing to

determine whether Johnson’s statement was voluntary was requested.

¶10.   However, once the trial began, defense counsel informed the circuit court that there

was no objection to allowing the statement into evidence. Counsel stated: “[A]s a trial

strategy, we have no objection to the statement coming in because we believe it’s been

tampered with.” The circuit judge concluded that if the defense was “going to concede the

admissibility of [the statement,] the [c]ourt [would] let it in.”

¶11.   In order to prevail on a claim of ineffective assistance of counsel, a defendant must

show (1) that his defense counsel’s performance was deficient, and (2) that the deficient

performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). “The determination of whether counsel’s performance was both deficient and

prejudicial must be determined from the ‘totality of the circumstances.’” Harris v. State, 979

So. 2d 721, 730 (¶25) (Miss. Ct. App. 2008) (quoting Wynn v. State, 964 So. 2d 1196, 1200

(¶11) (Miss. Ct. App. 2007)). “When reviewing a claim of ineffective assistance of counsel,

‘a court must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.’” Herrington v. State, 102 So. 3d 1241, 1244-45 (¶11) (Miss. Ct. App. 2012)

(quoting Strickland, 466 U.S. at 689). Trial counsel’s decisions on “whether or not to file

certain motions, call witnesses, ask certain questions, or make certain objections fall within

the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.”



                                               5
Id. at 1245 (¶11) (quoting Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004)).

¶12.   Defense counsel admitted to the trial court that the decision to withdraw the motion

to suppress Johnson’s statement, challenging its admissibility, was trial strategy. Counsel

submitted:

       Your Honor, we’re not fighting the admissibility of the statement. We want
       the statement in just as bad as [the State] do[es]. We want to be able to
       demonstrate how the statement was obtained and how the statement was not
       free. In fact . . . we expect a perjury to occur in this case. I’m not going to
       state exactly what it is right now. I’m going to lay the trap when it comes, but
       it’s already occurred at a preliminary hearing. And I’ve got to prove it to the
       jury. This is part of our defense, and it’s something that the jury is entitled to
       hear.

Defense counsel then asserted in the opening statement that Johnson’s confession “was

coerced as a result of him being put in the hole, [and] his family threatened[.]” Counsel

cross-examined an officer present during the taping of the statement as to whether Johnson

was coerced into confessing, and he insinuated that the audio tape had been shut off during

portions of the statement. Finally, jury instruction D-3B, which was given by the court,

instructed the jury to “consider all of the evidence, including the circumstances under which

any statement may have been made.” Thus, it is evident from the record that defense

counsel’s decision not to contest the admissibility of the statement was within the ambit of

trial strategy and, therefore, does not give rise to a claim of ineffective assistance of counsel.

¶13.   Johnson has also failed to establish that if defense counsel had not withdrawn the

motion from consideration, Johnson’s statement would have been suppressed by the trial

court. See Robinson v. State, 806 So. 2d 1170, 1175 (¶14) (Miss. Ct. App. 2002) (rejecting

the claim that counsel’s failure to call for a hearing on a motion to suppress was ineffective

                                                6
assistance of counsel, as Robinson demonstrated “nothing which would lead [this Court] to

believe the confession would have been suppressed”). As such, nothing supports Johnson’s

claim that counsel’s failure to contest the statement’s admissibility prejudiced his defense and

constituted ineffective assistance of counsel.

       B.     Counsel’s Failure to Move for a Mistrial upon the Dismissal of
              Jurors

¶14.   As we will discuss in greater detail in our analysis of the next issue, the trial judge

dismissed two jurors during the trial and replaced them with alternate jurors. Johnson asserts

that “trial counsel’s performance fell below that which is guaranteed by the Sixth

Amendment when he failed to move for a mistrial upon the trial court’s dismissal of two

jurors during the trial.” Reviewing the record, we find Johnson has failed to show he

suffered any prejudice from the court’s dismissal of the jurors and, had counsel moved for

a mistrial after the dismissal of the two jurors, the result of the proceedings would have been

different. Therefore, we find no merit to this issue.

       II.    Whether the trial court abused its discretion by dismissing two
              jurors during the trial.

¶15.   Johnson argues the trial court abused its discretion in dismissing two jurors during the

trial. After Juror 10 failed to show up for trial on the second day, informing the court that

she had to take her daughter to a doctor in Jackson, the judge replaced the juror with an

alternate.   The second juror, Juror 3 (Kenneth Green), was observed by the State

acknowledging a member of the defendant’s family on his way out of the court room. After

the trial judge questioned Green, the judge dismissed him and replaced him with an alternate.



                                               7
Johnson argues that there was not sufficient cause to dismiss these jurors.

¶16.   Mississippi Code Annotated section 13-5-67 (Rev. 2012) governs the replacement of

regular jurors with alternates, providing that “[a]lternate jurors in the order in which they are

called shall replace jurors who, prior to the time the jury retires to consider its verdict,

become unable or disqualified to perform their duties.” “The decision to dismiss a juror for

good cause and the subsequent replacement with an alternate is completely within the trial

court’s discretion.” McCoy v. State, 820 So. 2d 25, 29 (¶11) (Miss. Ct. App. 2002) (citing

Stevens v. State, 513 So. 2d 603, 604 (Miss. 1987)). However, a trial court does not have

authority to dismiss and replace a juror arbitrarily. Id.

¶17.   At the start of the second full day of trial, Juror 10 sent word that she had to take her

child to see a doctor in Jackson. The trial judge noted that she would “obviously . . . have

to be replaced.” No objection was made by defense counsel. We find that the court was well

within its discretion to dismiss Juror 10, as she failed to appear for trial and was out of town.

¶18.   We also find no abuse of discretion in the dismissal of Juror 3. At the conclusion of

the testimony, and after the jurors had been dismissed for the day, the State alerted the judge

that Juror 3 had “passed by one of the men who was sitting with the defendant’s family, and

. . . . he reached out and touched him. They gave each other some kind of touch or whatever,

he smiled and laughed and walked on out of the courtroom.” The trial judge questioned Juror

3 the following morning. The juror said that the man had “bumped” him, and he told the man

not to talk to him. He did acknowledge smiling at the gentleman. The person in question,

however, was not in attendance that day. Defense counsel objected to dismissing Juror 3,



                                               8
arguing “there was no indication of wrongdoing other than smiling to an individual who we

don’t even know was a member of the [defendant’s] family.” However, the trial judge found

the juror’s replies to the court’s questions “at least gave credence, verification[,] or

affirmation” to the State’s assertion that he smiled and brushed arms with the individual in

the courtroom. Therefore, he dismissed Juror 3, and replaced him with an alternate.

¶19.   We find no abuse of discretion in the trial court’s dismissal of the two jurors. Further,

Johnson has failed to show that he suffered any prejudice by the dismissal and replacement

of the jurors. See McCoy, 820 So. 2d at 30 (¶13) (The defendant bears the burden of proving

the dismissal of a juror, and the subsequent replacement with an alternate, “result[s] in some

form of prejudice.”). A defendant is “not entitled to any particular juror, only to a fair and

impartial jury.” Smith v. State, 724 So. 2d 280, 328 (¶193) (Miss. 1998) (citation omitted).

Johnson made no attempt to show any actual prejudice suffered by the dismissal of the jurors.

We find this issue is without merit.

¶20.   Finding no errors on appeal, we affirm the judgment.

¶21. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL
DISTRICT OF BOLIVAR COUNTY OF CONVICTION OF COUNT I,
KIDNAPPING, AND COUNT II, MURDER, AND SENTENCE OF THIRTY YEARS
FOR COUNT I, AND LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR
COUNT II, WITH THE SENTENCES IN COUNTS I AND II TO RUN
CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO ANY
PREVIOUSLY IMPOSED SENTENCE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AND TO PAY $3,944 IN RESTITUTION AND
$156 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.


                                               9
