                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00211-SCT
THADDEUS MACKLIN
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              10/10/95
TRIAL JUDGE:                                   HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                     SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                             KEN TURNER
NATURE OF THE CASE:                            CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 12/4/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                12/30/97




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




Thaddeus Macklin was indicted by the Scott County Grand Jury during the October, 1992 Term for
sale of a controlled substance by a habitual offender, in violation of Miss. Code Ann. § 41-29-139(a)
(1) (1993). He was convicted and sentenced to serve thirty years in the Mississippi Department of
Corrections by Circuit Court Judge Marcus Gordon. Macklin filed his "Motion for Post Conviction
Collateral Relief Under § 99-39-1 MCA to Vacate Sentence and Conviction" (hereinafter PCR
motion) on October 2, 1995. Judge Gordon dismissed Macklin's PCR motion on October 10, 1995,
finding that the motion "fails to state a cause upon which an order should be granted." Macklin
perfected his appeal to this Court from the trial court's denial of post-conviction relief.

                                                  I.
   WAS PETITIONER DENIED HIS RIGHT TO CONFRONT AND CROSS-EXAMINE
                       WITNESSES AGAINST HIM?


Macklin asserts that the State introduced a copy of the lab report from the Mississippi Crime
Laboratory at his trial without calling the laboratory scientist as a witness. A copy of the report is
attached to his brief, but is not included in the record before this Court. The report was completed by
Grady E. Downey and reveals that the substance which he was charged with selling was cocaine. A
copy of trial transcript index is also attached to Macklin's brief, revealing that Downey was not called
as a witness at trial. The trial transcript index is also absent from the record before this Court.
Macklin argues that by introducing the lab report without calling Downey as a witness, the State
denied him of his right to confront and cross-examine witnesses. He also contends that without
Downey's testimony, the jury did not have sufficient evidence at trial to convict him. He asserts that
the State failed to prove beyond a reasonable doubt that the substance was in fact cocaine, an
essential element of the crime for which Macklin was indicted.

Macklin points to this Court's decisions in Barnette v. State, 481 So.2d 788 (Miss. 1985) and Kettle
v. State, 641 So.2d 746 (Miss. 1994), to support his argument. In Barnette, we found that it was
reversible error for the trial court to admit the certificate of analysis in a sale of cocaine case without
requiring the analyst to testify. Barnette, 481 So.2d at 790-91. We determined that identifying the
substance as cocaine was an essential element of the crime, and that by admitting the report without
the testimony of the analyst, the trial court denied Barnette of his right to confront and cross-examine
witnesses against him. Id. at 791. In Kettle, we held that the right to confront and cross-examine
witnesses was also violated if someone other than the analyst testified regarding the lab report.
Kettle, 641 So.2d at 750.

"[T]he burden is on the appellant to make sure that the record contains 'sufficient evidence to support
his assignments of error on appeal.'" Jackson v. State, 684 So.2d 1213, 1224 (Miss. 1996) (quoting
Hansen v. State, 592 So.2d 114, 127 (Miss. 1991)). "We have always adhered to the rule that we
will not consider anything on appeal except what is in the record made in the trial court. We will not
go outside the record to find facts and will not consider a statement of facts attempted to be supplied
by counsel in briefs." Wortham v. State, 219 So.2d 923, 926-27 (Miss. 1969). The record before this
Court contains no evidence supporting Macklin's claims. Since the lab report and trial transcript index
were merely attached to Macklin's brief, we may not consider them as evidence. As the State points
out in its brief, it is possible that the parties stipulated at Macklin's trial that the substance tested
positive as cocaine, making Downey's testimony unnecessary and irrelevant. The fact that the lab
report attached to Macklin's brief has not been marked as a trial exhibit may support this stance.
Without the full transcript, we cannot make a credible ruling on this issue.

                                            CONCLUSION

"Generally speaking, when on appeal we review findings of ultimate fact made by a trial court sitting
without a jury, we enforce the familiar substantial evidence/clearly erroneous test, and it thus quite
limits our scope of review. This premise has been applied to proceedings for post-conviction relief."
McClendon v. State, 539 So.2d 1375, 1377 (Miss. 1989) (citing Reynolds v. State, 521 So.2d 914,
918 (Miss.1988); Merritt v. State, 517 So.2d 517, 520 (Miss.1987)). Based upon the limited record
on appeal, we cannot say that Judge Gordon was clearly erroneous in finding that Macklin's PCR
motion failed to state a viable claim for relief. We therefore give deference to the trial court's decision
and affirm the denial of post-conviction relief in this case.

LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, McRAE, ROBERTS, SMITH AND MILLS, JJ.,
CONCUR. BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.


     BANKS, JUSTICE, DISSENTING:

I don't believe that we know enough about this case to affirm and I don't believe that it is all the
prisoner's fault. Accordingly, I dissent.

What disturbs me is the content of the record in this pro se case. Despite the fact that the docket
sheet indicates that this is the record in both the original criminal case and the post-conviction relief
motion, several important documents are missing without explanation. As to the issue under
consideration, the notice of appeal and designation of the record are missing. Without a notice of
appeal, this Court lacks jurisdiction. As for the record of the previous proceedings upon which the
trial court presumptively relied, the motion for new trial or judgment notwithstanding the verdict, the
motion for appeal out-of-time, the list of witnesses for the defense and the state and the exhibits all of
which are indicated on the docket sheet are not in the record. While the docket sheet does not
indicate what was designated, it does indicate a notice of appeal from the order here attacked and
subsequent letter, neither of which were included with the record.

In civil matters, as this is, where the court dismisses for failure to state a claim "thirty days leave to
amend shall be granted." Miss.R.Civ.P. 15(a). There is no leave to amend in the order.

Under the Uniform Post-Conviction Relief Act the trial judge can direct that an insufficient pleading
be sent back together with a statement of the reason for its return. Miss. Code Ann. § 99-39-9 (4)
(1994). That wasn't done here. The next step is to examine the motion and the criminal case file,
Miss. Code Ann. § 99-39-11 (1994), and determine whether it "plainly appears . . . that the movant is
not entitled to relief." Perhaps this is what was done. If so, the case file should be delivered as a part
of the record in this case for review. That clearly was not done here. Moreover, because we don't
have whatever the entering clerk called "notice of appeal" and we don't have the subsequent "letter,"
we cannot be sure whether the clerk simply failed to follow the directions of the appellant as to the
content of the record. It is possible that this pro se prisoner has never seen the record as filed. He
may not be aware of the deficiencies noted above.

In my view, we ought to withhold judgment here and direct the clerk to send the entire record.
