                            IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2000-CA-00704-SCT

BRUCE BENSON
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT:                                   3/31/2000
TRIAL JUDGE:                                        HON. KEITH STARRETT
COURT FROM WHICH APPEALED:                          LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                             CHOKWE LUMUMBA
ATTORNEY FOR APPELLEE:                              OFFICE OF THE ATTORNEY GENERAL

                                                    BY: W. GLENN WATTS
DISTRICT ATTORNEY:                                  DUNNICA O. LAMPTON
NATURE OF THE CASE:                                 CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                        AFFIRMED - 7/18/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     8/8/2002



      BEFORE SMITH, P.J., DIAZ AND EASLEY, JJ.

      DIAZ, JUSTICE, FOR THE COURT:


¶1. On September 24, 1993, Bruce Benson was tried and convicted by a jury, in the Circuit Court of
Lincoln County, the Honorable Keith Starrett presiding, for the sale of cocaine. Benson was given a fifteen-
year sentence in the custody of the Mississippi Department of Corrections. The conviction was appealed to
the Mississippi Court of Appeals and affirmed on November 25, 1995. Benson v. State, No. 93-KA-
01262-COA (opinion not designated for publication). On November 24, 1998, this Court granted
Benson's Application for Leave to File Post Conviction Motion, and on December 15, 1998, Benson filed
for post-conviction relief. Hearings were held in the trial court on the petition for post-conviction relief on
May 24, 1999, November 22, 1999, and December 20, 1999. Benson's motion for post-conviction relief
was denied by order dated March 31, 2000. On appeal, Benson now asks that this Court consider the
following issues:

      I. WHETHER BENSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      HIS TRIAL COUNSEL'S FAILURE TO REQUEST A COMPETENCY HEARING.

      II. WHETHER BENSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      HIS TRIAL COUNSEL'S FAILURE TO CHALLENGE THE USE OF THE AUDIO TAPE
      RECORDING.

      III. WHETHER BENSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      HIS TRIAL COUNSEL'S LACK OF PREPARATION.

                                                   FACTS

¶2. On May 17, 1993, Anthony Lloyd, a confidential informant, met with two officers with the Brookhaven
Police Department, Craig Oster and Clint Earls. Lloyd agreed to bait Benson into selling him drugs. Lloyd
wore a microphone and went to Benson's house where he was able to buy cocaine from Benson under the
audio surveillance of Oster and Earls. The drug transaction was recorded on audio tape. At trial, Officer
Oster, Officer Earls, the informant, and Charles Terry of the Mississippi Crime Laboratory testified for the
State. The audio tape was played before the jury. Benson's voice was identified on tape, and Benson, who
testified on his own behalf, stated that it was possible that the audio recording was his voice. Benson was
found guilty.

¶3. On direct appeal, Benson raised two issues before the Mississippi Court of Appeals. First, he argued
that Oster's testimony about what he heard on the audio tape was hearsay. Second, he argued that the trial
court erred in restricting the cross examination of Lloyd as to Lloyd's prior convictions. Benson's conviction
and sentence were affirmed.

¶4. Benson was granted a hearing on his motion for post-conviction relief. In a hearing on May 24, 1999,
Benson argued about the legality of the audio surveillance under Miss. Code Ann. § 41-29-525 (2001).
The trial court found that the statute relied upon by Benson was not applicable to the facts of this case. On
November 22, 1999, a hearing was held on Benson's claims of ineffective assistance of counsel. The trial
court heard testimony from a psychiatrist, Dr. Richard Roden, Benson's mother, Mae Benson, and
Benson's trial attorney, Durwood Breeland. The trial court found that there was no ineffective assistance of
counsel.

                                               DISCUSSION

¶5. To establish a claim for ineffective assistance of counsel the defendant must prove that under the totality
of the circumstances (1) the counsel's performance was deficient and (2) the deficient performance
deprived the defendant of a fair trial. Hiter v. State, 660 So.2d 961, 965 (Miss.1995) (citing Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

      I. WHETHER BENSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      HIS TRIAL COUNSEL'S FAILURE TO REQUEST A COMPETENCY HEARING.

¶6. Benson argues that his trial counsel was ineffective for failing to request a competency hearing. It is
undisputed that Benson has suffered significant mental problems for several years. His primary diagnosis is
paranoid schizophrenia. Benson was able to establish these medical conditions at the hearing on his petition
for post-conviction relief. Furthermore, Breeland, Benson's trial counsel, testified that he had known
Benson for a number of years and was familiar with his mental problems. However, the trial court found that
Benson failed to meet his burden of proof in establishing that he did not know "right from wrong" at the time
of the alleged offense. The trial court concluded that Benson had not met his burden of proof for
establishing that he was criminally insane or that he was not competent to stand trial.
¶7. At the hearing Dr. Roden testified that schizophrenia was a treatable illness and that with proper
medication, a person with this illness could function properly at work and at home. Dr. Roden testified that
merely having the condition did not mean one could not distinguish right from wrong. In addition, Breeland
testified at the hearing that he was Benson's trial counsel and that based upon his communications with
Benson, he had no reason to think Benson would be incompetent to stand trial.

¶8. Breeland testified that he advised Benson not to testify because the jury would have the opportunity to
recognize Benson's voice. Nevertheless, Benson refused Breeland's advice. Breeland also testified that
Benson told him that he did not remember what happened on May 17, 1993, the day he sold cocaine to
Lloyd.

¶9. The issue of whether a trial court erred by failing to order a competency hearing sua sponte has been
considered by this Court in Richardson v. State, 722 So. 2d 481 (Miss. 1998). In that case, Richardson's
attorney told the trial court that he was able to effectively communicate with his client. There was no
evidence "that Richardson suffered from irrational behavior or incompetence to a degree that would affect
his right to a fair and just trial." Id. at 487. The failure to hold a competency hearing in that case was not
error.

¶10. In Conner v. State, 632 So. 2d 1239 (Miss. 1993), overruled on other grounds, Weatherspoon
v. State, 732 So. 2d 158 (Miss. 1999), this Court found that Conner suffered from schizophrenia, had a
low intellectual capacity, and recalled no facts about the charges against him. Nevertheless, he was
competent to stand trial. 632 So.2d at 1251. This was due to Conner's apparent ability to understand the
proceedings of the case, to appreciate the significance of the proceedings, and to aid his attorney in his
defense. Id.

¶11. In the instant case, there is no evidence in the record indicating that Benson had no understanding of
the nature and significance of the proceedings against him and that he could not rationally assist his trial
counsel in his defense. The only arguments used to support this claim is that the trial counsel knew of
Benson's psychological problems and let him stand trial and testify as to the audio tape. Benson merely
states that, based on those arguments, the trial counsel should have requested a competency hearing. There
is simply no showing that Benson's trial counsel's failure to raise the issue of Benson's competency
constituted ineffective assistance of counsel.

      II. WHETHER BENSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      HIS TRIAL COUNSEL'S FAILURE TO CHALLENGE THE USE OF THE ENTIRE
      AUDIO TAPE RECORDING.

¶12. Breeland testified at the hearing that he did not pursue an illegal search and seizure challenge during the
trial because the State had testimony from two eyewitnesses and a confidential informant, as well as a tape
recording of a voice identified as Benson's during the cocaine sale. Furthermore, Breeland testified that
Benson stated he did not remember anything that day, so there was no means to pursue a search and
seizure challenge.

¶13. Benson argues that Breeland should have objected to the use of the audio recording as a violation of
Miss. Code Ann. § 41-29-503 (2001) and as a violation of the Fourth Amendment. Benson contends that
he had a reasonable expectation of privacy in his conversation with Lloyd. Furthermore, Benson argues that
the officers were not Bureau of Narcotics agents and were not permitted to electronically intercept
conversations, although Officer Oster was a contract agent of the Bureau of Narcotics. At the hearing on
this issue, the trial judge found that under these facts the conversation was not one in which Benson had an
expectation of privacy. Benson was monitored electronically while Benson sold cocaine to an informant.

¶14. We conclude that Benson has not shown how Breeland's failure to challenge the use of the audio tape
recording constitutes ineffective assistance of counsel. Furthermore, this issue was capable of being raised
during the trial or on appeal. This issue is without merit.

      III. WHETHER BENSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      HIS TRIAL COUNSEL'S LACK OF PREPARATION.

¶15. Benson argues that his trial counsel had only 14 days to prepare for trial and that in a motion for
continuance his trial counsel had argued that he had ten other criminal cases at the time. Benson also argues
that his appellate counsel was ineffective by not raising the issue of his trial counsel's ineffective assistance of
counsel and by only raising two issues and not filing a rebuttal brief. Benson's trial counsel testified at the
hearing that he did have adequate time to prepare for Benson's case because there were only a few
witnesses. Specifically, Benson's trial counsel stated that there were three witnesses for the State "and
against my wishes, my client, were the four witnesses, It wasn't particularly complex. No. I wouldn't say
that 14 days is long enough to - hopefully, you would have long enough to prepare for any trial."

¶16. An allegation of ineffective assistance of counsel for failure to properly prepare must state whether any
additional investigation, such as interviewing witnesses or investigating facts, would have significantly aided
or altered the outcome of the defendant's case at trial. Brown v. State,798 So. 2d 481, 494, 496. (Miss.
2001); Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Based on a review of the record and of the facts
of this case, there is no support for Benson's claim that his trial counsel was not adequately prepared and
that any additional investigation would have altered the outcome of the case. This issue is without merit.

                                                CONCLUSION

¶17. Benson's allegations that his trial counsel was deficient in performance at Benson's trial are not
supported by the record. There is no evidence that Benson's trial counsel was deficient, and there is
certainly no evidence that any deficiency by Benson's trial counsel would have altered the outcome of the
trial. Therefore, the trial court's judgment denying post-conviction relief is affirmed.

¶18. AFFIRMED.

      PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY, CARLSON
      AND GRAVES, JJ., CONCUR.
