                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2008-CA-00750-SCT

ROBERT LEE TYLER, JR.

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           03/27/2008
TRIAL JUDGE:                                HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     SANFORD E. KNOTT
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JOHN R. HENRY
DISTRICT ATTORNEY:                          JOHN W. CHAMPION
NATURE OF THE CASE:                         CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                AFFIRMED - 08/20/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRAVES, P.J., RANDOLPH AND PIERCE, JJ.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    This appeal comes to the Court from the Circuit Court of DeSoto County’s denial of

Robert Lee Tyler, Jr.’s request for post-conviction relief (PCR). On December 5, 2007, this

Court granted Tyler’s request for leave, permitting him to file his PCR motion in the circuit

court, and directed the circuit court to conduct an evidentiary hearing on two issues raised

in Tyler’s petition. Those issues were: Whether the trial court erred in Tyler’s criminal trial

in the manner it instructed the jury to continue deliberations, and whether Tyler’s counsel

was ineffective for failing to raise an alleged due-process violation when the trial court

instructed the jury in the absence of Tyler and his trial counsel. Having reviewed the record
in this matter, we affirm the circuit court’s ruling denying the motion for post-conviction

collateral relief.

                        FACTS AND PROCEEDINGS BELOW

¶2.    In June 2002, a DeSoto County grand jury returned an indictment against Tyler for

three counts of sexual battery, charging him with having sex with a minor. Tyler was found

guilty by a jury of one count of sexual battery and was sentenced to a term of thirty years’

imprisonment.

¶3.    Tyler’s criminal trial was held on July 9, 2003, with former Circuit Judge George

Ready presiding. The jury began its deliberations the next morning, at which point Judge

Ready instructed the parties not to leave the courthouse.

¶4.    At around 11:30 a.m., when food was ordered for the jurors, Tyler’s trial counsel,

Johnny Walls, left the courthouse to eat lunch across the street. Tyler, who was out of jail

on bond, also left the building but remained on the courthouse grounds outside. Shortly

thereafter, and unbeknownst to either Tyler or Walls, the jury sent a note to Judge Ready

which stated, “We are unable to reach a decision on all the grounds.” According to Judge

Ready, an effort was made to locate both Tyler and Walls inside the building. That effort

failed, and Judge Ready instructed the jury to continue deliberating.

¶5.    At approximately 2:05 p.m., the jury alerted the court that it had reached a verdict.

Tyler, with his attorney present, was found guilty. After being polled, the jury was

discharged. Tyler was taken into custody and transported to the DeSoto County jail.

According to his testimony, upon arriving at the jail, Tyler called his attorney’s office and

was told by his attorney’s secretary that he “had a hung jury.”


                                             2
¶6.    Walls thereafter filed a motion for judgment notwithstanding the verdict, or in the

alternative a new trial, asserting, inter alia, that the trial court had erred in failing to allow

Tyler to move for a mistrial when, prior to rendering its verdict, the jury sent out the note.

A post-trial hearing was held on the motion, at which time Walls told the judge that he had

given his business card to the bailiff, with his cell-phone number written on it, and had never

received a call to come back to the courtroom. Judge Ready, on the record, said he had told

the jury to continue its deliberations, adding that this is what the court always does. Judge

Ready reminded Walls that he had been instructed “not to leave the courthouse while the jury

was deliberating.” He then told Walls that, even if he had been present, the result would not

have been any different, as it is standard practice for defense counsel to move for a mistrial

any time a jury informs the court that it is deadlocked, and that he “would not have granted

a mistrial on the first note coming out saying they were deadlocked.” Judge Ready then

remarked that he recently had presided over another criminal matter similar in nature to

Tyler’s, in which he had received four notes from the jury indicating that it was deadlocked,

but had instructed that jury continue its deliberations nonetheless.

¶7.    Tyler’s motion was denied, and he appealed his conviction with different counsel,

Thomas Lowe. The Court of Appeals found each issue argued in Tyler’s direct appeal

meritless, and affirmed the circuit court’s judgment of conviction. Taylor v. State, 911 So.

2d 550, 556 (Miss. Ct. App. 2005), cert. denied, 920 So. 2d 1008 (Miss. 2005). In his direct

appeal, Tyler did not raise the issue of whether the trial court had erred in instructing the jury

without his trial counsel being present.




                                                3
¶8.    Following that judgment, and with new counsel, Sanford Knott, Tyler timely and

properly filed a PCR application with this Court, in accordance with Mississippi Code

Sections 99-39-5, 99-39-7, and 99-39-27. In that petition, Tyler presented an affidavit by his

father, in which his father claimed to have heard the trial judge say to the bailiff, “Go back

and tell them do not come out until they have a verdict.” This Court granted Tyler leave to

proceed in the circuit court on two of the issues raised in his PCR petition.

¶9.    On February 25, 2008, an evidentiary hearing was conducted in the DeSoto County

Circuit Court, Judge Robert Chamberlin presiding. The parties stipulated that no transcript

could be found by the court reporter documenting the relevant communication between the

trial judge and the jury. Tyler and his father (hereinafter Mr. Tyler) testified on Tyler’s

behalf. Sergeant Lynn Fly, the security bailiff at Tyler’s criminal trial, and Judge Ready

testified for the State.

¶10.   Tyler testified that, soon after the jury began its deliberations, he walked outside and

stood in front of the courthouse with his wife, where he remained until he was called back

into the courtroom after the jury had reached a verdict. He testified that at no time prior to

the verdict did he know the jury had communicated with Judge Ready that it was deadlocked.

Tyler acknowledged that he was in the courtroom when Judge Ready instructed the parties

not to leave the courthouse, but added that he did not think this meant he needed to remain

inside the courthouse building.

¶11.   Mr. Tyler testified that, after the jury had requested lunch, Walls had told them he was

going to eat lunch across the street. Mr. Tyler said he and his wife then talked to Tyler for




                                              4
a moment before going out to their car to eat a sandwich. Shortly thereafter, Mr. Tyler told

his wife he was going back into the courtroom.

¶12.   At this point in his testimony, Mr. Tyler had trouble conveying exactly who had been

in the courtroom when he and his wife returned. Initially, he said that only he, his wife, the

judge and the bailiff had been present. He then indicated that nobody was in the courtroom

when he and his wife arrived. When Judge Knott asked who had come in next, Mr. Tyler

responded, the “jury.” Judge Knott then asked, “The judge?” Mr. Tyler answered, “the

bailiff.” Later in his testimony, when Mr. Tyler was asked if the prosecution had been

present, he indicated that it was present.

¶13.   According to Mr. Tyler, the bailiff then went to one of the side doors to the courtroom,

“as if he was looking for someone.” The bailiff came back and passed the judge a note. Mr.

Tyler testified that the judge looked at it and said, “Go back and tell them do not come out

until they have a verdict.” Mr. Tyler identified Sergeant Lynn Fly, who was present in

courtroom for Tyler’s PCR evidentiary hearing, as the person who had handed the note to

Judge Ready.

¶14.   On cross-examination, Mr. Tyler was asked if he saw what the note had said. Mr.

Tyler indicated that he did not, adding, “The only time I saw a note, the attorney showed it

to me. The State queried, “Which note was that, sir?” Mr. Tyler responded, “What the

judge said.” Mr. Tyler was then asked if the courtroom in which he was currently testifying,

was the same courtroom in which his son’s criminal trial had been held. Mr. Tyler said it

was not.




                                              5
¶15.   On redirect, Mr. Tyler was asked when he had first mentioned what Judge Ready had

said. Mr. Tyler said, “When I talked to you,” referring to Judge Knott.

¶16.   According to Sergeant Fly’s testimony, Fly did not remember Tyler’s criminal trial,

and, to the best of his knowledge, could not recall having delivered a note or a message from

the judge to the jury. Fly explained that his duty as bailiff is to provide security for the judge

and for the court officers, and that he is always in uniform when working. Fly stated that it

is his understanding that either the clerk of the court or the civilian bailiff would be the

person responsible for transporting notes to and from the judge.

¶17.   Lastly, Judge Ready testified that he could not recall exactly what he had told the jury

in Tyler’s criminal trial when he had received the note, but stated that his standard practice

would have been either to write on the note, “Continue your deliberations,” or to tell the

bailiff to tell the jury to “continue deliberating.” According to Judge Ready, he would have

had two bailiffs under his charge during a criminal trial, a security bailiff and a civilian jury

bailiff. Judge Ready said that, for Tyler’s criminal trial, Fly was his security bailiff, and

Wilbur Bates was his civilian bailiff. He explained that the civilian jury bailiff is an

employee of the county whose duties include tending to a jury’s needs, such as providing

them with food and drinks and carrying messages back and forth between the court and the

jury. Judge Ready said he would not have asked a sheriff’s bailiff to send a note or to

correspond with the jury. Judge Ready further stated that Tyler’s criminal trial had been held

in the same courtroom the evidentiary hearing was being conducted.

¶18.   On cross-examination, Judge Ready was asked whether, during Tyler’s post-trial

motion hearing, he recalled discussing another criminal matter similar in nature to Tyler’s.


                                                6
Judge Ready responded in the affirmative, and said that he gave a Sharplin instruction in that

instance, following three or four messages from the jury indicating that it could not reach a

verdict. Sharplin v. State, 330 So. 2d 591 (Miss. 1976).

¶19.   According to the transcript from the post-trial hearing, Judge Ready said he had

received four notes from that jury that it was deadlocked The transcript further shows that

Judge Ready told Tyler’s trial counsel, Walls, that it was unnecessary to give a Sharplin

instruction in Tyler’s case.

¶20.   In his order denying Tyler’s PCR motion, Judge Chamberlin found that Tyler had

failed to meet his burden of proof, a preponderance of the evidence, that the trial court had

erred in the manner by which it instructed the jury, or that Tyler had been denied his right

to due process. Acknowledging that Tyler would have been entitled to a new trial, had the

trial court in fact had instructed the jury in the manner alleged by Mr. Tyler, Judge

Chamberlin found that Mr. Tyler’s testimony “was impeached by the fact he could not

remember the bailiff nor the courtroom, but could remember the exact words of a judge

several years ago, which he did not remember until asked by counsel on post-conviction.”

The trial court determined Judge Ready’s testimony to be more credible, finding that, even

though Judge Ready could not recall the exact words he had used to instruct the jury, he was

nonetheless candid with the trial court in his admission. The trial court also found that Tyler

voluntarily had waived his right to be present, and that reasonable efforts had been made to

locate both him and Walls. Thus, the trial court determined that Judge Ready’s ex parte

communication did not prejudice Tyler so as to deny him a fundamentally fair trial.

                                        ANALYSIS

                                              7
       I.     Whether the Trial Court Erred in the Manner it Instructed the
              Jury in Tyler’s Criminal Trial to Continue Deliberations.

¶21.   Tyler avers that the trial court erred when it instructed the bailiff outside Tyler’s

presence to, “Go back and tell them do not come out until they have a verdict.” He claims

the evidence presented at the evidentiary hearing established proof by a preponderance of the

evidence that such an instruction was given. Tyler also contends that it was error for the trial

court to conclude that he waived his right to be present by his voluntary absence.

¶22.   In Sharplin v. State, 330 So. 2d 591 (Miss. 1976), this Court delineated two types of

instructions a trial court may give to a deadlocked jury:

              If the trial judge feels that there is a likelihood that the jury might reach
       a verdict, he may return the jury for further deliberations by simply stating to
       the jurors: “Please continue your deliberations,” or he may give the following
       instruction set forth in the tentative draft of Mississippi Mode Jury
       Instructions: Criminal, Volume 1, page 50.

                      I know that it is possible for honest men and women to
              have honest different opinions about the facts of a case, but, if
              it is possible to reconcile your differences of opinion and decide
              this case, then you should do so.

                     Accordingly, I remind you that the court originally
              instructed you that the verdict of the jury must represent the
              considered judgment of each juror. It is your duty as jurors to
              consult with one another and to deliberate in view of reaching
              agreement if you can do so without violence to your individual
              judgment. Each of you must decide the case for yourself, but
              only after an impartial consideration of the evidence with your
              fellow jurors. In the course of your deliberations, do not hesitate
              to reexamine your own views and change your opinion if you
              are convinced it is erroneous, but do not surrender your honest
              convictions as to the weight or effect of the evidence solely
              because of the opinion of your fellow jurors or for the mere
              purpose of returning a verdict. Please continue your
              deliberations.



                                                8
              We approve the foregoing instruction. It may be given in either
       criminal or civil cases when the trial judge is confronted by a hung jury.
       Following publication of this opinion the “Allen Charge” in any of its various
       forms should not be given. See Allen v. United States, 164 U.S. 492, 17 S.Ct.
       154, 41 L. Ed. 528 (1896). (Footnotes omitted).

Id. at 596.

¶23.   It is well-settled in this state that a trial judge must never attempt “to force a verdict

by suggestive comments or coercive measures.” Sharplin, 330 So. 2d at 596. Such would

have been the case had Tyler’s jury been instructed in the manner alleged. Due to the

potential coercive effect on the jury’s subsequent verdict, the error would have required a

reversal. Edlin v. State, 523 So. 2d 42, 44-46 (Miss. 1988).

¶24.   In Edlin, this Court reversed the defendant’s conviction, where the record

affirmatively disclosed that the trial court, after having been informed that the jury was

deadlocked, had the bailiff tell the jury that “too much work has gone into this case.” Id.

Edlin found that “[t]he judge’s message which the bailiff gave to the jurors exerts the same

pernicious influence as the Allen charge, which this Court has repeatedly condemned[,]” and

thus constituted incurable reversible error. Edlin, 523 So. 2d at 44.

¶25.   However, in Young v. State, 420 So. 2d 1055, 1058 (Miss. 1982), this Court upheld

the defendant’s conviction despite the trial court’s ex parte oral communication to the jury

through the bailiff to “continue their deliberations” after the jury had informed the bailiff it

could not reach a verdict. Young found that, because “the instruction was neither a

substantive instruction on a question of law nor indicative of a requirement that the jury must

continue deliberating until a verdict was reached[,]” the defendant was not prejudiced by not

being present when the instruction was given. Id. at 1058; see also Beckwith v. State, 707

                                               9
So. 2d 547, 588-89 (Miss. 1997) (relying on Young, supra, Court held that “the trial court’s

error in communicating with the jury ex parte did not deny Beckwith a fundamentally fair

trial, and thus was harmless”). On Young’s federal habeas corpus appeal, the Fifth Circuit

affirmed the district court’s denial of relief, stating:

       A defendant’s constitutional right to be present derives, in essence, from the
       confrontation clause of the sixth amendment. Gagnon, 470 U.S. at 526, 105
       S.Ct. at 1484. An ex parte communication with the jury, however, also may
       violate the defendant's right to due process “in some situations where the
       defendant is not actually confronting witnesses or evidence against him.” Id.
       Such a communication amounts to a due process violation, however, only to
       “the extent that a fair and just hearing would be thwarted by [the defendant’s]
       absence, and to that extent only.” Gagnon, 470 U.S. at 526, 105 S. Ct. at 1484
       (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332-33,
       78 L. Ed. 674 (1934)). When not secured by a specific constitutional
       provision, the defendant has a constitutional right to be present only when his
       presence “bears, or may fairly be assumed to bear a relation, reasonably
       substantial, to his opportunity to defend.” Snyder, 291 U.S. at 106, 54 S. Ct.
       at 332. Because the ex parte instruction in the instant case does not implicate
       a specific constitutional provision, Young must demonstrate that, based on all
       the circumstances, the instruction prevented him from receiving a fair and just
       hearing. See Snyder, 291 U.S. at 116-17, 54 S. Ct. at 336 (the due process
       clause requires us to examine the particular conditions and results to determine
       whether the hearing was unfair).

Young v. Herring, 938 F.2d 543, 557-58 (5th Cir. 1991) (footnotes omitted), cert

denied, 503 U.S. 940, 112 S. Ct. 1485, 117 L. Ed. 2d 627 (1992).

¶26.    Here, the substance of the trial court’s instruction was not made an issue until Tyler

filed his PCR petition. Tyler thereafter was granted both leave and an evidentiary hearing

to determine if in fact such an instruction had been given. If so, he would have been entitled

to relief–in this case, a new trial. Miss. Code Ann. § 99-39-5(1)(e) (Rev. 2007). Because

this claim was raised via a PCR petition, the burden of proof rested with Tyler to demonstrate




                                               10
by a preponderance of evidence that the trial court did in fact instruct the jury in the manner

alleged.

¶27.   As was determined by the trial court, however, Tyler failed to meet this burden. The

record supports this finding.

¶28.   Mr. Tyler, who had disclosed to Knott what he allegedly had heard, was found by the

trial court not to be a credible witness. While adamant that he remembered what the trial

court actually had said, Mr. Tyler could not remember in which courtroom the instruction

was given, or who exactly was there at the time the instruction was given. On the other hand,

even though both Sergeant Fly and Judge Ready had their own difficulties with memory

(Sergeant Fly did not remember Tyler’s criminal trial, and Judge Ready could not recall

exactly what he said upon receiving the note from the jury), the trial court nevertheless found

their testimony more forthright and credible.

¶29.   In any proceeding in which the trial judge sits as trier of fact, the judge “has sole

authority for determining credibility of witnesses.” Mullins v. Ratcliff, 515 So. 2d 1183,

1189 (Miss. 1987). Whether Judge Ready actually said what was alleged was a factual

question for the trial court to decide. Thus, we cannot say that the trial court’s factual

finding, that Judge Ready did not instruct the jury in the manner alleged, was clearly

erroneous. Johns v. State, 926 So. 2d 188, 194 (Miss. 2006) (A trial court’s factual findings

from an evidentiary hearing are reviewed by this Court under a clearly erroneous standard.)

(citation omitted).

¶30.   The trial court’s conclusions that Tyler had waived his right to be present, to the

extent that such a conclusion suggests that Tyler was foreclosed from asserting a fundamental

                                              11
right violation, was erroneous. As stated in Edlin, supra, “the defendant is [] entitled to be

represented by counsel during this very important procedure.” Id. at 45. However, Tyler

also had to demonstrate “based on all the circumstances” that he was prejudiced by his

absence at the time the instruction was given, and thus was denied a fundamentally fair trial.

Beckwith, 707 So. 2d at 588 (quoting Young v. Herring, 938 F.2d at 557-58).

¶31.   We note here that this communication was unrecorded, as the State has stipulated. No

Mississippi caselaw was found on whether this constitutes per se reversible error.1 However,

in Rushen v. Spain, 464 U.S. 114, 119, 104 S. Ct. 453, 456, 78 L. Ed. 2d 267 (1983), the

Supreme Court, in a per curiam opinion, held that an unrecorded ex parte communication

between the trial judge and a juror can be harmless error, if the prejudicial effect can be

adequately determined by a post-trial hearing, so as “to mitigate constitutional error, if any,

that has occurred.” Rushen, 464 U.S. at 119-20 (citations omitted). The Supreme Court

opined that:

       Our cases recognize that the right to personal presence at all critical stages of
       the trial and the right to counsel are fundamental rights of each criminal
       defendant. At the same time and without detracting from the fundamental
       importance of [these rights], we have implicitly recognized the necessity for
       preserving society’s interest in the administration of criminal justice. Cases
       involving [such constitutional] deprivations are [therefore] subject to the
       general rule that remedies should be tailored to the injury suffered . . . and
       should not infringe on competing interests.
       . . .

       The lower federal courts’ conclusion that an unrecorded ex parte
       communication between trial judge and juror can never be harmless error


       1
        The oral ex parte communication in Young v. State, 420 So. 2d at 1058, apparently
was recorded. However, there is no indication that the bailiff’s communication with the jury
also was recorded.

                                              12
       ignores [the] day-to-day realities of courtroom life and undermines society’s
       interest in the administration of criminal justice.

Id. at 117-19 (citations omitted) (emphasis added in the original).

¶32.   At Tyler’s post-trial hearing, argument was heard regarding Tyler’s motion for a new

trial, which charged that the trial court’s ex parte communication had prevented him from

moving for a mistrial. There was no assertion, either in the Tyler’s motion or in his argument

at the hearing, that the trial court had given an improper instruction. Thus, as previously

mentioned, the substance of the ex parte communication was not in question. In response to

Tyler’s motion, Judge Ready stated that, upon receiving the note from the jury, he did what

the court always does and instructed the jury to continue with its deliberations. He added

that, in a recent case similar to Tyler’s, he had received four notes from the jury before giving

a Sharplin instruction, apparently referring to the second instruction set forth by the Sharplin

Court, which allows the trial judge neutrally to urge a deadlocked jury to reconcile its

differences. See Sharplin, 330 So. 2d at 596. Judge Ready explained that he did not give a

Sharplin instruction in Tyler’s case because he thought it unnecessary, and he indicated that

had Tyler’s counsel been present to enter an objection, it would have been overruled.

¶33.   Based on our review of both the post-trial hearing and Tyler’s PCR evidentiary

hearing, there is no indication that an improper instruction, which presumptively influenced

the jury’s verdict, was given.      Thus, even though we have an unrecorded ex parte

communication, we find that Young v. State controls. Tyler has failed to demonstrate that

he was prejudiced by his absence. Because Tyler had a full opportunity to demonstrate

prejudice, we may fairly conclude that the unrecorded oral ex parte communication did not



                                               13
deny him a fundamentally fair trial. Young, 420 So. 2d at 1058; see also Wilson v. State,

853 So. 2d 822, 824 (Miss. Ct. App. 2003) (a communication between a judge and jury will

not amount to cause for reversal of a conviction unless it can be determined that the judge

influenced the jury’s verdict).

¶34.   We find that, while error, the unrecorded ex parte communication in this matter was

harmless error. Therefore, this issue is without merit.

       II.     Whether Both Trial and Appellate Counsel Rendered Ineffective
               Assistance in Failing to Argue That Tyler Was Denied a Fair Trial
               in Violation of Due Process at Law When the Trial Court
               Instructed the Jury in the Absence of the Defense.

¶35.   To establish ineffective assistance of counsel, a defendant must satisfy the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), adopted by this Court in Stringer v. State, 454 So. 2d 468, 476-77 (Miss.1984). This

requires the defendant to show: (1) that his counsel’s performance was deficient (fell below

the objective standard of reasonableness), and (2) that the deficiency prejudiced his defense.

Strickland, 466 U.S. at 687. “The standard for considering ineffective assistance of counsel

is the same for appellate performance as it is for trial performance.” Culberson v. State, 580

So. 2d 1136, 1139 (Miss.1990), cert. denied, 502 U.S. 943, 112 S. Ct. 383, 116 L. Ed. 2d 334

(1991).

¶36.      Tyler’s ineffectiveness claim nonetheless fails under prong two, the so-called

“prejudice prong.” See Strickland, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (“If

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed”). Had Tyler’s counsel



                                               14
argued that no record was made of trial court’s ex parte communication, or complained that

Tyler was denied due process by not being present at the time the instruction was given, he

still would have to demonstrate that he was prejudiced by these deficiencies. Based on the

foregoing analysis in the previous issue, Tyler could not do so. Having already found that

Tyler was not denied a fundamentally fair trial, this Court finds Tyler’s ineffective assistance

claim is without merit.

¶37.   Likewise, even if it could be argued that Tyler’s appellate counsel was deficient in not

raising a due-process claim, the charge fails under the second prong of the Strickland test.

Strickland, 466 U.S. at 687. Tyler could not have demonstrated that he was denied a

fundamentally fair trial. Young v. State, 420 So. 2d at 1058; see also Young v. Herring, 938

F. 2d at 557-58.

¶38.   Because there was no reason to assume the trial court delivered an instruction which

influenced the jury’s guilty verdict, it would not be objectively unreasonable for appellate

counsel to fail to raise the issue on appeal.2 Thus, Tyler’s ineffective-assistance claim or

appeal would fail under the first prong. For the sake of argument, if appellate counsel had

reason to believe an improper instruction had been given pursuant to Mississippi Rule of

Appellate Procedure 22(b), it would have been inappropriate for counsel to raise such an

issue on direct appeal. Rule 22(b), in pertinent part, states: “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.” M.R.A.P. 22(b).



       2
         It was not until Knotts’ interview with Mr. Tyler in preparation for Tyler’s PCR
petition that the alleged improper instruction was disclosed.

                                              15
¶39.   We find that any assertion that an unrecorded ex parte instruction was given which

had the potential of improperly influencing a verdict, cannot fully be supported by the record.

Thus, a reviewing court would not be able to address the claim adequately on direct appeal.

Archer v. State, 986 So. 2d 951, 955 (Miss. 2008). Tyler’s assertion that he was denied

effective appellate assistance also is without merit.

                                      CONCLUSION

¶40.   For these reasons, the trial court’s decision denying Tyler’s motion for post-conviction

collateral relief is affirmed.

¶41.   AFFIRMED.

     WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS
AND CHANDLER, JJ., CONCUR. GRAVES, P.J., CONCURS IN PART AND IN RESULT
WITHOUT SEPARATE WRITTEN OPINION.




                                              16
