                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-KA-00072-SCT

CHRISTOPHER ARCHER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        03/01/2004
TRIAL JUDGE:                             HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:               HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  KELSEY LEVOIL RUSHING
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                       JAMES H. POWELL, III
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 07/24/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




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

      EASLEY, JUSTICE, FOR THE COURT:

¶1.   Christopher Archer was indicted by the grand jury of Holmes County in December

2002 for unlawfully, wilfully, and feloniously robbing John Winston, Jr. of his personal

property against his will, and placing him in fear of immediate injury to his person by

exhibition of a deadly weapon in violation of Mississippi Code Annotated Section 97-3-79

(Rev. 2006). Archer’s first trial, in October 2003, ended in a mistrial after the jury was

unable to reach an unanimous verdict. Archer was retried the following February with a

newly empaneled jury, and found guilty of armed robbery. On March 1, 2004, the Honorable
Jannie Lewis sentenced Archer to ten years, with two years suspended, in the custody of the

Mississippi Department of Corrections. Counsel for Archer filed a notice of appearance,

along with a motion for a new trial and a request for a continuance that same day.1 Judge

Lewis granted the continuance, held a hearing on May 19, 2005, and thereupon denied

Archer’s motion for a new trial.

¶2.    Based on the unavailability of the trial transcript, Judge Lewis granted Archer two

extensions of time to file an appeal. Notice of appeal having now been filed, Archer seeks

review of his conviction.

                                          FACTS

¶3.    On July 21, 2002, Winston entered the Auto Zone store in Lexington, Mississippi, to

purchase some motor oil. At the oil aisle, Winston ran into an acquaintance. The two

exchanged greetings and soon began discussing engine heads for an ’89 Mustang. During

their conversation, another individual whom Winston had never seen before interjected and

said he knew where some heads were located nearby, and could take Winston there. Winston

and the individual, whom he later identified as Archer, left the store and got into Winston’s

vehicle.

¶4.    Winston testified that as he turned his head to back out of his parking spot, Archer

reached over and stuck a “pistol” into Winston’s side and said, “Give me your m*** f***

money.” “Scared,” Winston reached into his pocket and handed Archer $60. Archer then


       1
       The record indicates that Archer’s counsel for this appeal was introduced to the jury
by Archer’s lead counsel during voir dire and assisted during trial.

                                             2
said, “Snap that chain off your neck.” Winston yanked a gold herringbone necklace from

around his neck and handed it to Archer. Archer instructed Winston to leave the store’s

parking lot and to drive towards Saints Academy. When they reached the school, Archer told

Winston to make a U-turn onto Balance Due Road. Once on Balance Due, the two rode

throughout the area, turning onto various roads and lanes, before eventually arriving back

onto the main road. Again on Balance Due, they approached a bridge where Archer

instructed Winston to stop his car. Winston complied. At that point, Archer looked directly

over at Winston and said, “I ought to kill your m*** f*** a**.” Archer then stepped out of

the vehicle, told Winston to “get the f*** out of here,” and left on foot.

¶5.    Winston immediately drove back to the Auto Zone and told the store’s manager that

he had just been robbed. A store employee contacted a police officer who happened to be

standing across the street at the Junior Food Mart. Officer Kenny Wilson, who was helping

a stranded motorist at the time, told Winston to go to the police station and wait for him

there. Officer Wilson arrived shortly thereafter, and the two drove back to the Auto Zone.

The officer conducted an investigation, during which time someone (the record does not say

who) said that Archer was the person who had left with Winston. Officer Wilson, who

testified that he knew Archer, drove Winston back out to the Balance Due area to look for

Archer, but to no avail.

¶6.    On July 27, Winston swore out an affidavit concerning the events on July 21. The

next morning, Officer Wilson called Deputy Sam Chambers at the Holmes County Sheriff’s

Department, and asked the deputy if he had a picture of Archer that could be used in a photo

                                              3
lineup.     The deputy found one in his computer, and printed it along with two other

individuals’ photographs. The lineup was conducted later that afternoon in the deputy’s

office. In the presence of Officer Wilson and Deputy Chambers, Winston viewed each

photograph. He picked Archer’s picture out of the three and stated to the officers that this

was the person who had robbed him on July 21. A warrant was then issued for Archer’s

arrest.

¶7.       Three weeks later, on August 18, Archer was stopped by the Goodman police on

Highway 15 and detained there for an unrelated incident. Officer Wilson, having informed

the Goodman police to be on the lookout for Archer, was called to the scene. Upon arrival,

Officer Wilson asked Archer if he had a weapon inside his vehicle; Archer said that he did.

The officer retrieved a .380 caliber handgun from Archer’s car, and took Archer into custody.

                                       DISCUSSION

¶8.       Archer presents two claims on appeal. First, Archer charges that he was provided

ineffective assistance of counsel due to the following omissions by his counsel at trial: (1)

failure to seek suppression of the gun found in Archer’s possession at the time of his arrest;

(2) failure to use a peremptory challenge on juror number 21, who disclosed during voir dire

that she personally knew the victim, and had, herself, been the victim of a robbery; and (3)

failure to request a motion for dismissal at the close of the state’s case and again at the end

of the defense’s case. Archer argues that these omissions constituted a series of errors by his

trial counsel which severely prejudiced his defense and deprived him of his constitutional

right to effective assistance of counsel.

                                              4
¶9.    Secondly, Archer argues that the trial court erred by denying his challenge for cause

as to juror number 11, due to her disclosure that she casually knew the victim in this case.2

In addition, Archer argues that, despite his counsel’s failure to challenge juror number 21,

the trial court nevertheless erred by not sua sponte excusing juror 21 from the venire. Thus,

by having both jurors 11 and 21 empaneled on his jury, Archer claims he was denied his

constitutional right to a trial by a fair and impartial jury.

       I. INEFFECTIVE ASSISTANCE OF COUNSEL.

¶10.   The appellant’s ineffective-assistance-of-counsel claim will not be addressed on this

direct appeal. As the record indicates, appellant’s counsel on appeal also assisted the

appellant’s lead counsel at trial.

¶11.   This Court was presented a similar claim in Minnick v. State, 551 So. 2d 77 (Miss.

1998) (overruled on other grounds), where the defendant’s counsel on appeal also had

represented the defendant at trial and was claiming in the defendant’s appeal that he provided

ineffective assistance of counsel during trial. The Minnick Court cursorily acknowledged

the unusualness of an attorney claiming his own ineffectiveness, but nevertheless addressed

the merits of the claim and applied the two-pronged test set forth in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-95 (1984),


       2
         Appellate counsel for Archer stated in his brief that juror number 11 had also been
victim to a robbery, but the record reveals this to be inaccurate. During the challenge stage
of jury selection, Archer’s trial counsel moved to strike juror number 11 for cause on the
basis that she knew the victim and had, herself, been a robbery victim. However, juror
number 11 did not respond when the court asked the jurors if anyone had ever been the
“victim of a violent crime, armed robbery, or mugging.”

                                                5
requiring the defendant to show: (1) that his counsel’s performance was deficient, and (2)

that the deficiency prejudiced his defense. Id. at 98-99. Minnick held that the defendant’s

appellate counsel failed to demonstrate that his representation at trial was either deficient or

that his performance had prejudiced his client with an unfair trial. Id. at 99.

¶12.   Research failed to locate another case in which this Court was petitioned to review a

self-ineffectiveness claim. However, the Court of Appeals has been presented with such a

claim on at least two occasions. See Lyle v. State, 908 So. 2d 189, 197 (Miss. Ct. App.

2005); and Hill v. State, 749 So. 2d 1143, 1149-50 (Miss. Ct. App. 1999).

¶13.   In Hill, the Court of Appeals readily called attention to the inappropriateness of an

attorney who represents a criminal defendant at trial raising on appeal the claim of his own

ineffective trial assistance, and laid out four professional-conduct violations arising from

such representation. See Hill, at 1149-50. The court noted that raising this kind of error on

appeal “leaves questions as to whether it is a good faith argument, or rather an action to

circumvent the judicial process.” Id. at 1150. However, based on Minnick, the Court of

Appeals addressed the merits of the claim, applied the Strickland test and ruled Hill’s

ineffectiveness claim to be without merit. Id. at 1150-51.

¶14.   Faced with another self-ineffectiveness claim in Lyle, the Court of Appeals, citing

Minnick, again addressed the merits of appellate counsel’s argument that he had provided

his client ineffective legal assistance during trial. Lyle, 908 So. 2d at 197-98. After applying

the Strickland test, the court held the argument to be without merit, but not without noting,

once again, the problematic nature such a claim presents. Id. at 197-98. We agree.

                                               6
¶15.   Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought

during post-conviction proceedings. This is 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. Wilcher v.

State, 863 So. 2d 776, 825 (Miss. 2003). In such a case, the appropriate procedure is to deny

relief, preserving the defendant’s right to argue the issue through a petition for post-

conviction relief. Read v. State, 430 So. 2d 832, 837 (Miss. 1983).

¶16.   However, this Court may address an ineffectiveness claim on direct appeal if the

presented issues are based on facts fully apparent from the record. M.R.A.P. 22; see also

Havard v. State, 928 So. 2d 771, 786 (Miss. 2006). Mississippi Rule of Appellate Procedure

22 was amended in 2005 to clarify that both appellate courts have the authority to address

and rule on the merits for these types of issues during direct appeals when proper, and now

reads as follows:

       (b) Post-conviction issues raised on direct appeal. Issues which may be
       raised in post-conviction proceedings may also be raised on direct appeal if
       such issues are based on facts fully apparent from the record. Where the
       appellant is represented by counsel who did not represent the appellant at trial,
       the failure to raise such issues on direct appeal shall constitute a waiver barring
       consideration of the issues in post-conviction proceedings.

M.R.A.P. 22(b) (2005) (emphasis added).3 For this case, the second sentence of the rule,

which did not change, is of primary relevance to the matter herein before the Court.


       3
          At the time of the appellant’s trial in 2002, former Rule 22 was in effect and is
therefore controlling. The former rule did not contain the language, “if such issues are based
on facts fully apparent from the record.”

                                               7
¶17.   The sentence intentionally serves a dual purpose.             Under judicial-economy

considerations, the Court presumes that new eyes on appeal, having thoroughly reviewed the

trial court proceedings, will know whether or not certain claims, such as those charging

ineffective trial assistance, are meritorious. Thus, if an issue or claim is ripe and based on

matters fully enveloped within the record, it should be brought during direct appeal to avoid

the risk of being deemed waived.

¶18.   The Court is aware, however, that in many instances a criminal defendant’s trial

counsel may continue to represent the defendant in his or her appeal. Such is perfectly

acceptable, and in many situations may be the better course. But in order to safeguard the

defendant’s constitutional rights, the procedural bar that otherwise would apply to an

ineffective-trial-assistance issue when new counsel is handling the defendant’s appeal does

not apply when appellant counsel was also the defendant’s trial counsel. This is a matter of

protective necessity, and is intended to ensure that a convicted criminal defendant will not

be precluded from the opportunity to raise the claim that he or she was denied his or her

constitutional right to adequate legal representation. Read, 430 So. 2d at 837.

¶19.   When a criminal defendant is represented on appeal by counsel who actively

participated in the defendant’s defense at trial, a charge that the defendant was provided

ineffective assistance of counsel runs counter to both intentions. First and foremost, as this

Court stated in Read, “it is absurd to fantasize that [a] lawyer might effectively litigate the




                                              8
issue of his own ineffectiveness.” Read, 430 So. 2d at 838.4 Second, were this Court to

entertain such a claim, and thereafter deny it on the merits, under the doctrines of collateral

estoppel and res judicata the criminal defendant would be precluded from re-raising the

issue(s) or the claim in a post-conviction proceeding. And third, apart from the procedural

and substantive reasons, this type of claim, as the Court of Appeals aptly noted, leaves

questions.

¶20.   Thus, a self-ineffectiveness claim is absolutely inappropriate and must not be

permitted. In the event a reviewing court finds itself presented with such a claim, it should

not address and rule upon the matter during a direct appeal, no matter how clearly the record

indicates baselessness.5 The only means by which a reviewing court adequately can ensure

that a criminal defendant represented on appeal by his or her trial counsel has the opportunity

at least to fully raise an ineffectiveness claim is via a post-conviction proceeding.

¶21.   Our ruling, of course, is not meant to prevent the court from acting on direct appeal

in the extraordinary event that the record clearly shows ineffective trial assistance of

constitutional dimensions by the same counsel representing the defendant on appeal. In any

such case, the reviewing court simply would formally address the merits of the




       4
          Read was not addressing a self-ineffectiveness claim, but rather was reasoning why
ineffective-assistance-of-counsel claims, as the state was trying to argue, must not be held
to the procedural standard–requiring questions raised on appeal to have first been preserved
in the trial court below.
       5
            Apparently, this was the reason for the Minnick Court doing so. Minnick, 551 So.
2d at 99.

                                               9
ineffectiveness issue therein invoked prior to remanding the case for a new trial. Read, 430

So. 2d at 841. In the case sub judice, having carefully and thoroughly reviewed the record

herein before this Court, we find no such instance.

¶22.   The record reveals that Archer’s appellant counsel apparently only assisted Archer’s

lead counsel at trial. The record does not indicate to what extent he was involved; however,

his participation in the appellant’s defense at trial regardless of his role, by imputation,

ascribes any potential claim of deficient and prejudicial trial performance unto himself as

well, and consequently constitutes a self-ineffectiveness claim. Therefore, Archer’s

ineffective-assistance-of-counsel claim is dismissed without prejudice. Archer will be

allowed, if he chooses, to file an appropriate post-conviction proceeding raising the

ineffective-assistance-of-counsel issue. If his application states a prima facie claim, he then

will be entitled to an evidentiary hearing on the merits of that issue in the Circuit Court of

Holmes County. Once the issue has been formally adjudicated by the circuit court, Archer

will also have the right to appeal that court’s decision.

       II. WHETHER THE DEFENDANT WAS DENIED A RIGHT TO A
       TRIAL BY A FAIR AND IMPARTIAL JURY.

       A. Whether the trial court erred by denying the defendant’s request that
       juror number 11 be removed on challenge for cause.

¶23.   Under settled law in Mississippi, “a juror who may be removed on challenge for cause

is one against whom a cause for challenge exists that would likely effect (sic) his competency

or his impartiality at trial.” Evans v. State, 725 So. 2d 613, 653 (Miss. 1997), cert. denied,

525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34 (1999) (quoting Billiot v. State, 454 So.

                                              10
2d 445, 457 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369

(1985), reh'g denied, 470 U.S. 1089, 105 S. Ct. 1858, 85 L. Ed. 2d 154 (1985)); Armstrong

v. State, 214 So. 2d 589, 593 (Miss. 1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L.

Ed. 2d 750 (1969) ("Those [jurors] who say that they could follow the evidence and the

instructions of the court should be retained, and those who cannot follow the instructions of

the court should be released”). Finding a prospective juror competent to sit and impartially

hear a criminal matter is a judicial question reserved for the trial judge, and will not be

disturbed unless clearly wrong. Dennis v. State, 555 So. 2d 679, 682 (Miss. 1989); Walls

v. State, 371 So. 2d 411, 413 (Miss. 1979).

¶24.   In his appeal, the defendant offers nothing more than a conclusive assertion that the

trial court erred by denying his challenge for cause as to juror number 11, based on her

disclosure that she casually knew the victim in this case from having seen him in the

community. This is not enough to place the trial court in error.

¶25.   A tangential relationship with the victim in a criminal case, by itself, is not a sufficient

reason to exclude a potential juror for cause. See Bell v. State, 725 So. 2d 836, 846 (Miss.

1998) (“Mere acquaintance or even family relationships with parties or those related to

parties is not sufficient to require that a juror be excused for cause”). Moreover, the record

reveals that, following the juror’s disclosure, the trial court conducted a followup inquiry.

The juror affirmatively indicated this relationship would not prevent her from being fair and

impartial, nor would it affect her ability to render judgment based solely on the evidence



                                               11
presented. The trial court’s decision not to grant the defendant’s causal challenge was a

discretionary finding, which the defendant has failed to show was wrongly decided.

¶26.   Furthermore, the defense accepted juror number 11 with four peremptory challenges

remaining. A party who chooses not to challenge a juror peremptorily when he has unused

challenges may not thereafter seek to put the trial court in error because the court declined

to permit the juror to be challenged for cause. Davis v. State, 660 So. 2d 1228, 1244 (Miss.

1995) (citing Mettetal v. State, 602 So. 2d 864 (Miss. 1992)); Hansen v. State, 592 So. 2d

114 (Miss. 1991), cert. denied, 504 U.S. 921, 112 S. Ct. 1970, 118 L. Ed. 2d 570 (1992),

reh'g denied, 505 U.S. 1231, 112 S. Ct. 3060, 120 L. Ed. 2d 924 (1992). To hold otherwise

would allow the defendant to invite error and later take advantage of it on appeal.6 The

appellant’s argument that the trial court erred by refusing to remove juror number 11 for

cause is without merit.

       B. Whether the trial court erred by not sua sponte removing juror
       number 21 from the venire.




       6
        In Hansen v. State, 592 So. 2d 114, 129-30 (Miss. 1991), cert. denied, 504 U.S.
921, 112 S. Ct. 1970, 118 L. Ed. 2d 570 (1992), reh’g denied, 505 U.S. 1231, 112 S. Ct.
3060, 120 L. Ed. 2d 924 (1992), this Court held:

       The reason for the rule is that the appellant has the power to cure substantially
       any error so long as he has remaining unused peremptory challenges. We
       would put the integrity of the trial process at risk were we to allow a litigant
       to refrain from using his peremptory challenges and, suffering an adverse
       verdict at trial, secure reversal on appeal on grounds that the circuit did not
       do what appellant wholly had power to do.

                                              12
¶27.   Archer’s argument that juror 21 should have been removed on the court’s own motion

charges essentially that the juror’s relationship with the victim and her circumstance as a

prior victim herself disqualified her as a competent juror in this case. Archer submits that,

regardless of his counsel’s failure either to challenge the juror for cause or to peremptorily

strike her from the venire panel, the trial court nevertheless was obligated to exclude this

juror based on her disclosures.

¶28.   Again, Archer provides this Court nothing other than a blanket assertion that the trial

court erred. Lack of reasoning notwithstanding, Archer’s contention is rejected on both

procedural and substantive grounds. Procedurally, a party’s failure to object to a juror’s

competency to sit before the jury was empaneled constitutes, based on unequivocal

principles, a procedural bar. See Myers v. State, 565 So. 2d 554, 557 (Miss. 1990) ("[A]

party who fails to object to the jury's composition before it is empaneled waives any right to

complain thereafter"). In limited circumstances, this Court will set aside the procedural bar

and reverse when it is clear that a juror disqualified under Mississippi Code Annotated

Section 13-5-67 was not removed before the jury retired to consider its verdict. Caldwell v.

State, 381 So. 2d 591, 594 (Miss. 1980). Essentially, this requires a showing that the juror

in question has been convicted of an “infamous crime” or has withheld information or

misrepresented material facts that would have provided a legitimate basis for challenge.

Miss. Code Ann. §13-5-67 (Rev. 2002); Myers v. State, 565 So. 2d at 558; see also Odom

v. State, 355 So. 2d 1381, 1383 (Miss. 1978).



                                             13
¶29.   Archer has failed to show either. There is nothing in the record to indicate that juror

21 had been convicted of an infamous crime at the time she was empaneled to render

judgment in this case. Nor is there any indication that juror 21 withheld or misrepresented

any information or material facts that otherwise would have made her incompetent to sit as

a fair and impartial juror throughout, or that disadvantaged the defense in its decision

whether to challenge her for cause or to exercise a peremptory challenge.7

¶30.   Substantively, under Mississippi law, any person not disqualified under Mississippi

Code Annotated Section 13-5-1, who will make oath that he or she is impartial, is competent

to sit as a juror in a criminal case. Miss. Code Ann. § 13-5-79 (Rev. 2002). The trial judge

whose duty is to see that a competent, fair, and impartial jury is empaneled, is empowered

with broad discretion to determine whether a prospective juror can be fair and

impartial–notwithstanding the juror’s admission under oath that he or she will be. Miss.

Code Ann. § 13-5-79 (Rev. 2002); Burt v. State, 493 So. 2d 1325, 1327 (Miss. 1986). This

Court recognizes that the trial judge is in the best position to determine whether the jury as

selected was fair and impartial, and therefore yields to a trial court’s discretionary finding

that a competent jury, under its oath to be fair and impartial, was empaneled to render

judgment, and will not reverse absent clear abuse of that discretion. Caston v. State, 823 So.

2d 473, 498 (Miss. 2002); Bell v. State, 725 So. 2d at 846.




       7
         The record indicates that the defense had three peremptory challenges remaining at
the time it accepted juror number 21.

                                             14
¶31.   The record shows juror 21 was forthright in each of her responses to questions posed

during voir dire. The juror affirmatively indicated that neither her relationship with the

victim in this case, nor her prior circumstance as a robbery victim, would prevent her from

being fair and impartial, nor would it affect her ability to render judgment based solely on

the evidence presented. Archer has failed to show why the trial court’s belief in the juror's

oath to remain fair and impartial throughout was error. Archer’s claim that the trial court

erred by not sua sponte removing juror number 21 is without merit.

                                     CONCLUSION

¶32.   The judgment of the Circuit Court of Holmes County is affirmed.

¶33. CONVICTION OF ARMED ROBBERY AND SENTENCE OF TEN (10)
YEARS, WITH TWO (2) YEARS SUSPENDED, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

       SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY. GRAVES,
J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.




                                             15
