                     IN THE COURT OF APPEALS 04/08/97
                                       OF THE
                           STATE OF MISSISSIPPI
                              NO. 95-KA-00512 COA



CLARENCE O. BOURNE A/K/A CLARENCE ORLANDO BOURNE

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



            THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

                 MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. R. I. PRICHARD III

COURT FROM WHICH APPEALED: CIRCUIT COURT OF JEFFERSON DAVIS COUNTY

ATTORNEY FOR APPELLANT:

TOMIE T. GREEN

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT F. LEARY

DISTRICT ATTORNEY: MANYA CREEL

NATURE OF THE CASE: CRIMINAL: FELONY

TRIAL COURT DISPOSITION: CONVICTED FOR SALE OF COCAINE; SENTENCED TO
SERVE A TERM OF 25 YRS IN MDOC

MANDATE ISSUED: 6/24/97
BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ.

PAYNE, J., FOR THE COURT:

 Clarence O. Bourne was convicted for one count of sale of cocaine in violation of Mississippi Code
Section 41-29-139(a). Bourne was sentenced to serve a term of twenty-five (25) years in the custody
of the Mississippi Department of Corrections. The trial court denied Bourne’s motion for JNOV or,
in the alternative, a new trial. We find that none of Bourne’s issues on appeal has merit and therefore
affirm.

                                                FACTS

On June 9, 1994, Darrel Hilliard, chief deputy of the Copiah County Sheriff’s Office, was operating
in an undercover capacity for the State in a narcotics investigation in Jefferson Davis County,
Mississippi. Hilliard testified that the investigation was targeting a specific area on highway 84 in
Jefferson Davis County and that his instructions were to attempt to purchase narcotics in this area.
Hilliard, driving an undercover vehicle equipped with a video camera, stated that he went to the
targeted area and purchased cocaine from an individual named "Bearcat." Hilliard testified that
immediately following the "Bearcat" transaction a vehicle in which the Appellant, Bourne, was riding
drove up to his vehicle and that Bourne initiated a conversation with Hilliard. Hilliard testified that
Bourne asked him what he needed and then got out of the vehicle and approached Hilliard’s vehicle.
Hilliard stated that Bourne again asked what he needed and that Hilliard responded with the inquiry,
"What can you do for a hundred?" Hilliard testified that Bourne responded that he did not have it but
that his boys at the Jeffersonian Hotel had it. Hilliard then testified that he transported Bourne to the
hotel and that Bourne directed Hilliard to park in front of room 111. Hilliard stated that Bourne
asked how he wanted it, "in rocks or in a slab?" Hilliard stated that Bourne then went into the hotel
room but came back without the cocaine and indicated that the guy inside did not want to sell.
Hilliard testified that he told Bourne that he would go elsewhere if he could not get the cocaine and
that Bourne stated that he would try again. Hilliard indicated that Bourne went back into the hotel
room and returned with the cocaine. Hilliard testified that Bourne then handed him the cocaine and
that he (Hilliard) gave Bourne one hundred dollars. The transaction was captured on video which
was shown to the jury.

Bourne testified in his own behalf and alleged that he had been entrapped. Bourne testified that when
he saw Hilliard on June 9, 1994, he was looking for a ride to Prentiss, Mississippi. Bourne indicated
that he was merely a go-between in the transaction and that he was involved only because he was
doing Hilliard a favor in exchange for the ride. Bourne testified that he would not have been involved
with the drug buy if Hilliard had not initiated the events which took place. At trial, Bourne requested
and was granted an entrapment instruction. Nevertheless, the jury returned a verdict of guilty of sale
of cocaine. Feeling aggrieved, Bourne appeals.

                                              ANALYSIS

           I. WHETHER BOURNE IS ENTITLED TO A NEW TRIAL BASED ON A
           MATERIAL VARIANCE BETWEEN THE INDICTMENT, THE PROOF AT TRIAL,
           AND THE ORDER OF CONVICTION.

Bourne appeals his conviction on the ground that he was convicted of the possession of cocaine
which carries a maximum three (3) year penalty, as opposed to the transfer of cocaine as charged in
his indictment. Bourne bases his argument on the fact that his indictment charged him under
Mississippi Code Section 49-29-139(a)(1), the sale statute, and that his order of conviction indicates
that he was convicted under Mississippi Code Section 49-29-139(c)(1) which is the possession
statute. Bourne, in his brief, cites law which states that the trial court cannot modify an indictment so
as to change the charge made in the indictment to another crime, except by the action of the grand
jury who returned the indictment. Bourne, however, makes no argument as to how this law applies to
his case.

The State contends that Bourne is procedurally barred from asserting this assignment of error
because he failed to declare any meaningful argument on appeal. The State, without waiving this
defense, also argues that Bourne’s assignment of error is nothing more than an obvious scrivener’s
error in the order of conviction in that (c) was mistakenly used in the place of (a) in the citation to the
pertinent code section. The State points out that the trial court, pursuant to a motion by the State to
remand the matter to the trial court for correction, entered a nunc pro tunc order to amend the order
of conviction which stated:

           The order of conviction correctly stated that Clarence Bourne was indicted for sale of a
           scheduled II controlled substance, but erroneously stated that sale of a controlled
           substance was a violation of Miss. Code Ann. § 41-29-139(c)(1), rather than Miss. Code
           Ann. § 41-29-139(a)(1). A scrivener’s error was made in the order of conviction in that
           (c) was erroneously used in the place of (a).

            IT IS, THEREFORE, ORDERED AND ADJUDGED that the clerical error in the
           original order of conviction be corrected and that an amended order of conviction be
           entered. Pursuant thereto, the first sentence in the original order of conviction:

                        . . . charging said Defendant with the crime of SALE OF A SCHEDULED II
                       CONTROLLED SUBSTANCE, in violation of Mississippi Code Section 41-
                       29-139(c)(1) . . . ;

            shall hereby be corrected to read as follows in the amended order of conviction:

                        . . . charging said Defendant with the crime of SALE OF A SCHEDULED II
                       CONTROLLED SUBSTANCE, in violation of Mississippi Code Section 41-
                       29-139(a)(1) . . .

We find that the State, acting pursuant to MRAP 10(e), properly requested and was granted a stay of
appeal in order to file a motion for a nunc pro tunc order. Pursuant to the nunc pro tunc order to
amend the order of conviction, on January 26, 1996, the trial court entered an amended order of
conviction, correcting the scrivener’s error and holding that the "SALE OF A SCHEDULED II
CONTROLLED SUBSTANCE" is a violation of "Mississippi Code Section 41-29-139(a)(1)." We
find nothing in Bourne’s argument to convince us that the trial court acted improperly in amending
the order of conviction. The Mississippi Supreme Court has held:
           [T]he power to correct a judgment rendered at the former term of the court, so as to
           strike out the judgment erroneously entered by mistake of the clerk and substitute for it
           the wholly different judgment actually rendered by the court, is a power inherent in every
           court, and is not derived from any statute.

Bynum v. State, 76 So. 2d 821, 825 (Miss. 1955). We find that Bourne’s assignment of error is
unfounded as any variance between the indictment and the order of conviction was properly
corrected by the trial court pursuant to the nunc pro tunc order.

           II. WHETHER THE TRIAL COURT ERRED BY DENYING BOURNE’S MOTION
           FOR DIRECTED VERDICT BASED ON THE DEFENSE OF ENTRAPMENT.

Bourne contends that he was entitled to a directed verdict on the ground that the State failed to
prove that Bourne was predisposed to commit the offense charged. Bourne argues that a person’s
ready response to solicitations by an informant is not enough to establish beyond a reasonable doubt
that he was predisposed to commit the crime for which he was solicited. Bourne contends that "[l]aw
enforcement officials go too far when they implant in the mind of a person the disposition to commit
the alleged offense and induce its commission in order that they may prosecute."

Entrapment is defined as "the act of inducing or leading a person to commit a crime not originally
contemplated by him, for the purpose of trapping him for the offense." Hopson v. State, 625 So. 2d
395, 399 (Miss. 1993) (quoting Phillips v. State, 493 So. 2d 350, 354 (Miss. 1986)). Entrapment is
an affirmative defense and must be proved by the defendant. Hopson, 625 So. 2d at 399. "If the
defendant already possessed the criminal intent, and the request or inducement merely gave the
defendant the opportunity to commit what he or she was already predisposed to do, entrapment is
not a defense." Id. Thus, two requirements must be met to successfully raise entrapment as a defense:
(1) "proof of government inducement to commit the criminal act or acts;" and (2) "that the defendant
lacks the predisposition to commit the criminal acts." Id. at 400. In determining whether the
defendant has met the requirements necessary to raise an entrapment defense, "the defendant must be
given the benefit of all doubts about the evidence." King v. State, 530 So. 2d 1356, 1359 (Miss.
1988). Once the defendant makes out a prima facie case that he was entrapped, three consequences
follow: (1) the burden of production and proof shift to the prosecution, (2) the accused becomes
entitled to have the issue submitted to the jury on proper instruction, and (3) predisposition becomes
a fact of consequence, and evidence thereof becomes relevant and admissible. Tanner v. State, 566
So. 2d 1246, 1248 (Miss. 1990).

In the present case, Bourne was given the benefit of all doubt and an entrapment instruction was
given. Nevertheless, Bourne attacks the sufficiency of the evidence as it pertains to entrapment. It is
apparent, however, that Bourne misunderstands the distinction between the entitlement to an
entrapment instruction and entitlement to a directed verdict/JNOV. The Mississippi Supreme Court
has stated that whether an accused is entitled to an entrapment instruction is "wholly irrelevant" to
the question of whether the record contained evidence adequate to support a jury determination of
entrapment. King, 530 So. 2d at 1359-60. In the present case, Bourne is challenging the sufficiency
of the evidence by presenting arguments which pertain to whether or not the jury should be instructed
as to the entrapment defense. Bourne, in his confusion, makes no sufficiency argument whatsoever.
Nonetheless, the question before this Court is whether the evidence was sufficient enough to warrant
consideration by the jury.

A challenge to the sufficiency of the evidence requires consideration of the evidence before the court
when made, so that this Court must review the ruling on the last occasion when the challenge was
made at the trial level. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). This occurred when the
trial court overruled Bourne’s motion for JNOV. The Mississippi Supreme Court has stated, in
reviewing an overruled motion for JNOV, that the standard of review shall be:

           [T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most
           favorable to the State. The credible evidence consistent with [Bourne’s] guilt must be
           accepted as true. The prosecution must be given the benefit of all favorable inferences that
           may be reasonably drawn from the evidence. Matters regarding the weight and credibility
           of the evidence are to be resolved by the jury. We are authorized to reverse only where,
           with respect to one or more of the elements of the offense charged, the evidence so
           considered is such that reasonable and fair-minded jurors could only find the accused not
           guilty.

Id. (citations omitted).

 Bourne argues that the record was void of any proof that he was predisposed to sell cocaine. We
disagree. The testimony indicated that Bourne was present in an area known for drug transactions
and that he was engaged in a conversation with a man who, just moments before, had sold cocaine to
Officer Hilliard. Officer Hilliard testified that Bourne asked him what he needed and when Hilliard
indicated that he wanted to buy drugs, Bourne stated that he could get what Hilliard needed from his
boys at the Jeffersonian Hotel. Bourne then got into the car with Hilliard and directed him to room
111 at the hotel. The testimony as well as the video tape indicated that Bourne went into room 111
and retrieved the cocaine and then gave it to Hilliard in exchange for $100. Bourne was clearly
predisposed to commit the crime for which he was charged and did so when presented with the
opportunity.

The evidence consistent with the guilty verdict must be accepted as true. Id. at 778. Considering the
elements of the crime along with all the evidence in the light most favorable to the verdict, the
evidence is not such that reasonable jurors could only find Bourne not guilty of sale of cocaine. We
find that the trial court properly denied Bourne’s motion for a directed verdict.

           III. WHETHER THE STATE FAILED TO ESTABLISH A CHAIN OF CUSTODY
           FOR THE COCAINE THAT WAS ALLEGEDLY SOLD BY BOURNE TO
           HILLIARD.

Bourne contends that the chain of custody for the cocaine which he allegedly sold to Hilliard was not
properly established. Specifically, Bourne argues that two of the persons who handled the cocaine
were not presented as witnesses thus resulting in a failure to completely establish the chain of
custody. Bourne argues further, in support of this issue, that the crime laboratory analysis of the
cocaine was never admitted into evidence. Bourne cites one case, Kettle v. State, 641 So. 2d 746
(Miss. 1994), for the proposition that the defendant is entitled to have the person who conducted the
laboratory analysis testify in person.
Mississippi Rule of Evidence 901(a) states: "The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims." The Mississippi Supreme Court has held that the
test for chain of custody is "whether there is any indication of tampering or substitution of evidence."
Wells v. State, 604 So. 2d 271, 277 (Miss. 1992). Furthermore, the State does not have to produce
every person who handled the evidence, nor does the State have to account for every minute of every
day. Butler v. State, 592 So. 2d 983, 985 (Miss. 1991).

In the present case, the testimony indicated that Hilliard, after purchasing the cocaine, kept the
cocaine in his presence until he met with Mississippi Bureau of Narcotics Agent Elisha Adcox.
Hilliard then relinquished custody of the cocaine to Adcox who placed the cocaine into the first
evidence bag and then both Hilliard and Adcox initialed the bag. Both Adcox and Hilliard identified
the cocaine and first evidence bag at trial and testified that their initials were on the bag. Adcox
testified that she then placed the first evidence bag into a larger kapak bag and immediately went
back to her office where she heat sealed the kapak bag and placed it into the evidence vault. Shortly
thereafter, Adcox stated that she placed the kapak bag into a brown envelope and mailed it to the
Mississippi Crime Lab for testing.

Charles Terry, an employee of the Mississippi Crime Lab, was called by the State and qualified as an
expert forensic chemist in the specialty of drug identification and analysis. Terry testified that,
according to standard operating procedure, evidence is originally received at the Mississippi Crime
Lab by evidence technicians who in turn open the outside mailing envelope to confirm that the
contents match the description on the evidence submission form. Terry confirmed that the standard
operating procedures were followed in this case. Terry testified that he subsequently received the
kapak evidence bag which contained a smaller bag which contained the cocaine. Terry testified that
he tested the substance and confirmed that it contained 1.4 grams of cocaine.

There was no showing by Bourne that the evidence was not what it was purported to be, nor was
there any indication that the evidence had been tampered with or altered. We do not find the trial
court to be in error. The decision of whether the State has properly shown the chain of custody of
evidence is left to the discretion of the trial court, Wells, 604 So. 2d at 277, and this Court will not
reverse the trial court’s ruling "absent abuse resulting in prejudice to the defendant." Gibson v. State,
503 So. 2d 230, 233 (Miss. 1987). This Court holds that the State properly presented the chain of
custody of the evidence and we find this issue to be without merit.

           IV. WHETHER THE JURY WAS PROPERLY INSTRUCTED ON THE ISSUES OF
           THE INDICTMENT, ENTRAPMENT, SALE OR TRANSFER OF COCAINE.

Bourne argues that the jury was arbitrarily and abstractly instructed on the definition of "sale" when
there was no evidence that Bourne actually sold cocaine to anyone. Bourne contends that he was a
mere "go-between" between Hilliard and the actual seller of the cocaine. Bourne argues further that
there was no instruction regarding the transfer of cocaine even though the indictment indicated that
Bourne was being charged with the transfer of cocaine.

Bourne correctly points out that he was indicted for the transfer of cocaine but he erroneously
contends that the jury was not instructed on the transfer of cocaine. Instruction S-3 instructed the
jury as follows:
           The Court instructs the jury that the defendant, Clarence O. Bourne, has been charged in
           the indictment with the crime of the unlawful sale of cocaine.

           If you believe from all the evidence in this case beyond a reasonable doubt that:

                       Clarence O. Bourne, on June 9, 1994, in Jefferson Davis County, Mississippi,
                      did wilfully, unlawfully, feloniously, knowingly, and intentionally transfer
                      approximately 1.4 grams of cocaine to Darrell Hilliard for lawful U.S. money,
                      then you shall find the defendant guilty as charged, and the form of your
                      verdict may be: "We, the jury, find the defendant guilty as charged." (emphasis
                      added).

Bourne’s argument that the jury was "arbitrarily and abstractly" instructed on the definition of "sale"
is also without merit. Bourne fails to realize that "transfer of cocaine for money" is an element
contained within the definition of "sale." Instruction S-4 instructed the jury as follows:

           The Court instructs the jury that the words "sale", "sell" or "selling" as used in these
           instructions mean the actual, constructive or attempted transfer or delivery of cocaine for
           money. (emphasis added).

The State correctly points out that the above instruction was taken directly from the Mississippi Code
which defines "sale," "sell" or "selling" of a controlled substance as "the actual, or attempted transfer
or delivery of a controlled substance for remuneration, whether in money or other consideration."
Miss. Code Ann. § 41-29-105(aa) (Rev. 1993). We must agree with the State in that when the trial
court instructed the jury to determine whether Bourne "transferred cocaine for money," it was setting
out the elements for "sale" of cocaine. We therefore find nothing arbitrary or abstract about the
giving of the "sale" instruction.

Bourne also insists that he was not the seller of the cocaine but a mere "go-between." The State
points out that Bourne fails to mention in his argument why this distinction is meaningful. The State
argues and we agree that the distinction is not meaningful. The Mississippi Supreme Court held in
Boone v. State, 291 So. 2d 182, 184 (Miss. 1974), that the crime of "sale of controlled substance"
does not contemplate that the seller must realize a profit in order to be guilty of the crime. See
Messer v. State, 483 So. 2d 338, 340 (Miss. 1986); Williams and Williams v. State, 463 So. 2d 1064,
1066 (Miss. 1985). In a sale case, it is not necessary for the State to prove that the defendant
exercised dominion or control or that the defendant profited from the transaction. Turner v. State,
573 So. 2d 1340, 1342 (Miss. 1990). The statute simply says that the crime occurs whenever a
controlled substance is transferred or delivered in exchange for remuneration, whether money or
other consideration. Boone, 291 So. 2d at 184. Likewise, a sale exists even if such person is acting as
an agent for the seller. Id. at 185.

Bourne also reasserts the variance between the indictment and the order of conviction, and declares
that a possession instruction should have been given to the jury. We addressed this issue previously in
this opinion and see no need to revisit it again. As we stated earlier, any variance that existed
between the indictment and the order of conviction was properly resolved by the trial court.

Bourne makes one final attack on the issue of entrapment. Bourne contends that the he is entitled to
have the defense of entrapment submitted to the jury on proper instruction. We agree and find that
Instruction D-6 sufficiently instructed the jury on the issue of entrapment. Bourne’s entrapment
argument has already been addressed in the second issue in this opinion and we find no further
analysis necessary.

The standard for reviewing jury instructions is well established. Mississippi law allows the trial judge
to instruct the jury upon principles of law applicable to the case either at the request of a party, Miss.
Code Ann. § 99-17-35 (1972), or on the court’s own motion, Newell v. State, 308 So. 2d 71, 78
(Miss. 1975). See also Unif. Crim. R. Cir. Ct. Prac. 5.03. The Mississippi Supreme Court has held
that the failure of a court to give a requested instruction is not grounds for reversal if the jury was
"fairly, fully and accurately instructed on the law governing the case." Smith v. State, 572 So. 2d 847,
849 (Miss. 1990); see also Murphy v. State, 566 So. 2d 1201, 1206 (Miss. 1990) (holding that the
trial court may refuse an instruction which incorrectly states the law, is without foundation in the
evidence, or is stated elsewhere in the instructions); Calhoun v. State, 526 So. 2d 531, 533 (Miss.
1988) (holding that a trial court is not required to instruct a jury over and over on the same point of
law even though some variations are used in different instructions). The standard for reviewing jury
instructions is to read all instructions together, not in isolation. Townsend v. State, 681 So. 2d 497,
509 (Miss. 1996). For the reasons stated above, we find Bourne’s arguments regarding the
instruction of the jury on the applicable law to be without merit.

           V. WHETHER THE TRIAL COURT ERRED IN DENYING BOURNE’S MOTION
           FOR JNOV/NEW TRIAL.

Bourne argues: "[I]nasmuch as the court received and ruled on Bourne’s Motion for JNOV or New
Trial on the same day, April 14, 1995, it is apparent that the trial judge gave little or no consideration
or review of the evidence, indictment and propose [sic] errors before it." Bourne cites no authority in
support of the above proposition that judges may not receive and rule on motions for JNOV or new
trial on the same day nor are we aware of any such authority. We previously addressed Bourne’s
challenge to the sufficiency of the evidence in the second issue of this opinion and will not address it
again here. As with the motion for directed verdict, we find that the trial court did not err in denying
Bourne’s motion for JNOV.

Bourne’s motion for a new trial is, in effect, a challenge to the weight of the evidence. He complains
that the jury verdict was against the overwhelming weight of the evidence, and he requests a new
trial. The standard for reviewing a denied motion for a new trial is firmly established in our case law.
The Mississippi Supreme Court has held that "[t]he jury is charged with the responsibility of weighing
and considering the conflicting evidence and credibility of the witnesses and determining whose
testimony should be believed." McClain v. State, 625 So. 2d 774, 781 (Miss. 1993); see also Burrell
v. State, 613 So. 2d 1186, 1192 (Miss. 1993) (witness credibility and weight of conflicting testimony
are left to the jury); Kelly v. State, 553 So. 2d 517, 522 (Miss. 1989) (witness credibility issues are to
be left solely to the province of the jury). Furthermore, "the challenge to the weight of the evidence
via motion for a new trial implicates the trial court’s sound discretion." McClain, 625, So. 2d at 781
(citing Wetz v. State, 503 So. 2d 803, 807-08 (Miss. 1987)). The decision to grant a new trial "rest[s]
in the sound discretion of the trial court, and the motion [for a new trial based on the weight of the
evidence] should not be granted except to prevent an unconscionable injustice." Id. This Court will
reverse only for abuse of discretion, and on review will accept as true all evidence favorable to the
State. Id.

In the present case, the jury heard the witnesses and the evidence as presented by both the State and
the defense. The testimony was clearly for the jury to evaluate. The jury’s decision to believe the
State’s evidence and witnesses was well within its discretion. Moreover, the jury was well within its
power to weigh the evidence and the credibility of the witnesses’ testimony and to convict Bourne.
The trial court did not abuse its discretion by refusing to grant Bourne a new trial based on the
weight of the evidence. The jury verdict was not so contrary to the overwhelming weight of the
evidence that to allow it to stand would be to promote an unconscionable injustice. The trial court
properly denied Bourne’s motion for a new trial.

             VI. WHETHER BOURNE’S SENTENCE WAS EXCESSIVE.

Bourne contends that his sentence of twenty-five (25) years was excessive. Bourne bases his
argument on the fact that the order of conviction indicated that he had been convicted for possession
of cocaine instead of the sale of cocaine. Bourne argues that the maximum penalty for possession of
cocaine is three (3) years not twenty-five (25) or thirty (30) years as indicated by the trial court. We
have already found that Bourne was convicted for the sale of cocaine and that any variance in the
order of conviction indicating otherwise has been properly addressed and resolved by the trial court.
Thus, the appropriate statute to which the trial court must look for sentencing in this case is
Mississippi Code Section 41-29-139(b)(1) which states that anyone convicted for the sale or transfer
of a Schedule II controlled substance may be imprisoned for a maximum term of thirty (30) years.

In the present case, Bourne was sentenced to serve a term of twenty-five (25) years in the custody of
the Mississippi Department of Corrections. We find this sentence to comport with the guidelines set
forth in § 41-29-139(b)(1) of the Mississippi Code. The Mississippi Supreme Court has long held that
"a trial court will not be held in error or held to have abused its discretion if the sentence imposed is
within the limits fixed by statute." Edwards v. State, 615 So. 2d 590, 597 (Miss. 1993) (citing
Johnson v. State, 461 So. 2d 1288, 1292 (Miss. 1984)); see also Barnwell v. State, 567 So. 2d 215,
221 (Miss. 1990) (save for instances where the sentence is "manifestly disproportionate" to the crime
committed, extended proportionality analysis is not required by the Eighth Amendment); Corley v.
State, 536 So. 2d 1314, 1319 (Miss. 1988); Reed v. State, 536 So. 2d 1336, 1339 (Miss. 1988).

Bourne also argues that the judge did not utilize the presentence report as contemplated by Rule
11.02 of the Mississippi Uniform Circuit Rules. A review of Rule 11.02 indicates that the use of a
presentence report is discretionary as the rule states that "the court may direct that a presentence
investigation and report be made." URCCC 11.02 (emphasis added). The Mississippi Supreme Court
has also held that "the use of presentence investigations and reports is discretionary with the trial
judge and is not mandatory. Edwards v. State, 615 So. 2d 590, 598 (Miss. 1993) (citing Roberson v.
State, 595 So. 2d 1310, 1315 (Miss. 1992)).

Bourne argues further that the judge’s newspaper comments indicated punitive enhancement of
Bourne’s sentence so that Bourne could be made an example to others. We find nothing in Bourne’s
brief to support this proposition. The sentence imposed by the trial judge did not exceed the
maximum sentence as provided by the Mississippi Code and we therefore find that Bourne’s sentence
was not excessive.
           VII. WHETHER BOURNE WAS A VICTIM OF INEFFECTIVE ASSISTANCE OF
           COUNSEL.

The standard of review for an ineffective assistance of counsel argument is the two-prong test: (1)
counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 686 (1984). The Mississippi Supreme Court
adopted the Strickland standard for an ineffective assistance of counsel argument in Stringer v. State,
454 So. 2d 468, 476-77 (Miss. 1984). See McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990).
"The burden is on the defendant to demonstrate both prongs." McQuarter, 574 So. 2d at 687 (citing
Leatherwood v. State, 473 So. 2d 964, 968-69 (Miss. 1985)). This standard is based upon the totality
of the circumstances surrounding each case. Id. (citing Waldrop v. State, 506 So. 2d 273, 275 (Miss.
1987)).

Mississippi "recognizes a strong but rebuttable presumption that counsel’s conduct falls within a
broad range of reasonable professional assistance. Id. (citing Gilliard v. State, 462 So. 2d 710, 714
(Miss. 1985)). The court recognized "[t]o overcome this presumption, ‘[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Schmitt v. State, 560 So. 2d 148, 154 (Miss. 1990) (quoting
Strickland, 466 U.S. at 694). There is also a presumption that counsel’s decisions are strategic. See
Handley v. State, 574 So. 2d 671, 684 (Miss. 1990); Leatherwood v. State, 473 So. 2d 964, 968-69
(Miss. 1985)).

In the present case, Bourne argues that his attorney raised none of the objections contained in this
appeal with the exception of the entrapment defense. Specifically, Bourne argues that his attorney
failed to object to the variance between the indictment and the order of conviction, and he failed to
object to the instructions which were given during the trial. The first issue of our opinion addresses
the scrivener’s error in the order of conviction in which we found that the clerical mistake had been
properly resolved by the trial court. We find that no prejudice resulted from this mistake as the
indictment and all of the proof at trial were consistent with a charge and conviction for the sale of
cocaine. We therefore find that Bourne’s attorney was not deficient in his failure to object.

In the fourth issue of this opinion, we addressed Bourne’s concerns regarding the instructions given
by the trial court. For reasons set fourth in that discussion, we found that the jury instructions were
not erroneous. We therefore find that Bourne’s counsel was not deficient in failing to object.

Finally, Bourne declares that he talked with a juror during the lunch break on the day of trial. Bourne
asserts that his trial counsel was deficient in failing to inform the court of Bourne’s alleged
misconduct. Bourne’s appellate counsel contends that she discussed this matter with Bourne’s trial
counsel and that he denied that Bourne ever informed him of the misconduct. Bourne’s appellate
counsel also contends that the juror involved admitted to her that he did in fact speak to Bourne
during the trial but that the juror refused to sign an affidavit indicating as much.

As we stated above, the defendant has the burden of proof in a claim for ineffective assistance of
counsel. Bourne provides us with no evidence that a conversation took place with a juror nor does he
provide us with evidence, if such misconduct did occur, that he informed his attorney of his actions.
We cannot declare an attorney deficient in a matter of which he had no knowledge.
In the present case, Bourne has not met his burden of satisfying the two prongs of Strickland. Bourne
has failed to show this Court that his trial counsel was deficient nor has he demonstrated how his trial
counsel’s actions, or inactions, prejudiced him. We have reviewed the record and looking at the
totality of the circumstances, we cannot say that the assistance provided by Bourne’s counsel rises to
the level required under Strickland. Thus, we are compelled to affirm.

THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY OF
CONVICTION OF TRANSFER OF A CONTROLLED SUBSTANCE (COCAINE) AND
SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
TAXED TO THE APPELLANT.



BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, KING,
AND SOUTHWICK, JJ., CONCUR.
